Saleh v. Titan Corp.

• Decision Date: 11 September 2009
• Docket Number: No. 08-7008.,No. 08-7009.,08-7008.,08-7009.
• Citation: 580 F.3d 1
• Parties: Haidar Muhsin SALEH, et al., Appellants v. TITAN CORPORATION, Appellee CACI International Inc. and CACI Premier Technology, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

580 F.3d 1

Haidar Muhsin SALEH, et al., Appellants v. TITAN CORPORATION, Appellee CACI International Inc. and CACI Premier Technology, Inc., Intervenors.

No. 08-7008.

No. 08-7009.

United States Court of Appeals, District of Columbia Circuit.

Argued February 10, 2009.

Decided September 11, 2009.

Appeals from the United States District Court for the District of Columbia, (No. 05cv01165).

Susan L. Burke argued the cause for appellants. With her on the briefs were Katherine Gallagher, Shereef Hadi Akeel, and L. Palmer Foret.

Ari S. Zymelman argued the cause for appellee. With him on the brief were F. Whitten Peters, Kannon K. Shanmugam, and F. Greg Bowman.

J. William Koegel Jr. argued the cause for intervenors CACI International Inc. and CACI Premier Technology, Inc. With him on the brief was John F. O'Connor.

Before: GARLAND and KAVANAUGH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge SILBERMAN.

Dissenting opinion filed by Circuit Judge GARLAND.

SILBERMAN, Senior Circuit Judge:

Plaintiff Iraqi nationals brought separate suits against two private military contractors that provided services to the U.S. government at the Abu Ghraib military prison during the war in Iraq. The district court granted summary judgment in behalf of one of the contractors, Titan Corp., on grounds that the plaintiffs' state tort claims were federally preempted. But the court denied summary judgment on those grounds to the other contractor, CACI International Inc. The court also dismissed claims both sets of plaintiffs made under the Alien Tort Statute (which is appealed only by the Titan plaintiffs) and reserved for further proceedings in the CACI case that contractor's immunity defense. We have jurisdiction over this interlocutory appeal under 28 USC §§ 1291 and 1292(b). We affirm the district court's judgment in behalf of Titan, but reverse as to CACI.

I

Defendants CACI and Titan contracted to provide in Iraq interrogation and interpretation services, respectively, to the U.S. military, which lacked sufficient numbers of trained personnel to undertake these critical wartime tasks. The contractors' employees were combined with military personnel for the purpose of performing the interrogations, and the military retained control over the tactical and strategic parameters of the mission. Two separate groups of plaintiffs, represented by the named plaintiffs Haidar Muhsin Saleh and Ilham Nassir Ibrahim, brought suit alleging that they or their relatives had been abused by employees of the two contractors during their detention and interrogation by the U.S. military at the Abu Ghraib prison complex. While the allegations in the two cases are similar, the Saleh plaintiffs also allege a broad conspiracy between and among CACI, Titan, various civilian officials (including the Secretary and two Undersecretaries of Defense), and a number of military personnel, whereas the Ibrahim plaintiffs allege only that CACI and Titan conspired in the abuse.

As we were told, a number of American servicemen have already been subjected to criminal court-martial proceedings in relation to the events at Abu Ghraib and have been convicted for their respective roles. While the federal government has jurisdiction to pursue criminal charges against the contractors should it deem such action appropriate, see 18 U.S.C. §§ 2340A, 2441, 3261, and although extensive investigations were pursued by the Department of Justice upon referral from the military investigator, no criminal charges eventuated against the contract employees. (Iraqi contract employees are also subject to criminal suit in Iraqi court.) Nor did the government pursue any contractual remedies against either contractor. The U.S. Army Claims Service has confirmed that it will compensate detainees who establish legitimate claims for relief under the Foreign Claims Act, 10 U.S.C. § 2734. Saleh pursued such a route, succeeding in obtaining $5,000 in compensation, despite the fact that the Army's investigation indicated that Saleh was never actually interrogated or abused.

While the terms "torture" and "war crimes" are mentioned throughout plaintiffs' appellate briefs and were used sporadically at oral argument, the factual allegations in the plaintiffs' briefs are in virtually all instances limited to claims of "abuse" or "harm." To be sure, as the dissent emphasizes, certain allegations in the complaints are a good deal more dramatic. But after discovery and the summary judgment proceeding, for whatever reason, plaintiffs did not refer to those allegations in their briefs on appeal. Indeed, no accusation of "torture" or specific "war crimes" is made against Titan interpreters in the briefs before us. We are entitled, therefore to take the plaintiffs' cases as they present them to us. And although, for purpose of this appeal, we must credit plaintiffs' allegations of detainee abuse, defendants point out—and it is undisputed—that government investigations into the activities of the apparently relevant Titan employees John Israel and Adel Nakhla suggest that these individuals were not involved in detainee abuse at all. Other linguists mentioned in plaintiffs' briefs—"Iraqi Mike," Etaf Mheisen, and Hamza Elsherbiny—are not alleged to have engaged in abuse involving the plaintiffs. Steven Stefanowicz, alleged in one set of complaints to have been an employee of Titan, was in fact an employee of CACI. And only one specified instance of activity that would arguably fit the definition of torture (or possibly war crimes) is alleged with respect to the actions of a CACI employee. Titan J.A. 567-570.¹

Plaintiffs brought a panoply of claims, including under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., government contracting laws, various international laws and agreements, and common law tort. In a thoughtful opinion, District Judge Robertson dismissed all of the Ibrahim plaintiffs' claims except those for assault and battery, wrongful death and survival, intentional infliction of emotional distress, and negligence. Ibrahim v. Titan Corp., 391 F.Supp.2d 10 (D.D.C.2005). Following our decisions in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984) (Edwards, J., concurring), and Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C.Cir. 1985), the district court held that because there is no consensus that private acts of torture violate the law of nations, such acts are not actionable under the ATS's grant of jurisdiction. Ibrahim, 391 F.Supp.2d at 14-15.²

As for the remaining claims, the district court found that there was, as yet, insufficient factual support to sustain the application of the preemption defense, which the defendants had asserted. The judge ordered limited discovery regarding the military's supervision of the contract employees as well as the degree to which such employees were integrated into the military chain of command. Id. at 19. A year later, the district court dismissed the federal claims of the Saleh plaintiffs. Saleh v. Titan Corp., 436 F.Supp.2d 55 (D.D.C. 2006). The two sets of cases were consolidated for discovery purposes.

Following discovery, the contractors filed for summary judgment, again asserting that all remaining claims against them should be preempted as claims against civilian contractors providing services to the military in a combat context. In the absence of controlling authority, the district judge fashioned a test of first impression, according to which this preemption defense attaches only where contract employees are "under the direct command and exclusive operational control of the military chain of command." Ibrahim v. Titan Corp., 556 F.Supp.2d 1, 5 (D.D.C. 2007) (emphasis added). He concluded that Titan's employees were "fully integrated into [their] military units," id. at 10, essentially functioning "as soldiers in all but name," id. at 3. Although CACI employees were also integrated with military personnel and were within the chain of command, they were nevertheless found to be subject to a "dual chain of command" because the company retained the power to give "advice and feedback" to its employees and because interrogators were instructed to report abuses up both the company and military chains of command. Id. The CACI site manager, moreover, said that he had authority to prohibit interrogations inconsistent with the company ethics policy, which the district court deemed to be evidence of "dual oversight." Id. Thus, the remaining tort claims were held preempted as to Titan but not as to CACI. Id.

The losing party in each case appealed, and we heard their arguments jointly. We thus have before us two sets of appeals. The first consists of the Iraqi plaintiffs' appeals from the district court's decision in favor of Titan on both the preemption and ATS issues. The second features CACI's appeals from the district court's denial of its motion for summary judgment on the basis of preemption. We have jurisdiction pursuant to 28 U.S.C. § 1291 over the former. As to the latter, the district court has certified its denial of summary judgment for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The plaintiffs only half-heartedly object to the district judge's exercise of discretion under § 1292(b). Even if we were inclined to withdraw this permission to appeal—which we are not—we would still be required to rule on the appropriate test for combatant activities preemption in the plaintiffs' appeals against the judgment for Titan. We also have jurisdiction over the district judge's dismissal of the ATS claim in the Titan case, but not his corollary dismissal of the ATS claim in the CACI case; the plaintiffs did not cross-appeal that decision.

We think the district judge properly focused on the chain of command and the degree of integration that, in fact, existed between the military and both...