Shimari v. Caci Int'l, No. 09–1335.

CourtU.S. Court of Appeals — Fourth Circuit
Writing for the CourtARGUED:
PartiesSuhail Najim Abdullah AL SHIMARI; Taha Yaseen Arraq Rashid; Sa'ad Hamza Hantoosh Al–Zuba'e; Salah Hasan Nusaif Jasim Al–Ejaili, Plaintiffs–Appellees,v.CACI INTERNATIONAL, INCORPORATED; CACI Premier Technology, Incorporated, Defendants–Appellants.Kellogg Brown & Root Services, Incorporated, Amicus Supporting Appellants.
Decision Date21 September 2011
Docket NumberNo. 09–1335.

658 F.3d 413

Suhail Najim Abdullah AL SHIMARI; Taha Yaseen Arraq Rashid; Sa'ad Hamza Hantoosh Al–Zuba'e; Salah Hasan Nusaif Jasim Al–Ejaili, Plaintiffs–Appellees,
v.
CACI INTERNATIONAL, INCORPORATED; CACI Premier Technology, Incorporated, Defendants–Appellants.Kellogg Brown & Root Services, Incorporated, Amicus Supporting Appellants.

No. 09–1335.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 26, 2010.Decided: Sept. 21, 2011.


[658 F.3d 414]

ARGUED: Joseph William Koegel, Jr., Steptoe & Johnson, LLP, Washington, D.C., for Appellants. Susan L. Burke, Burke PLLC, Washington, D.C., for Appellees. ON BRIEF: John F. O'Connor, Steptoe & Johnson, LLP, Washington, D.C., for Appellants. Susan M. Sajadi, Katherine R. Hawkins, Burke PLLC, Washington, D.C., for Appellees. Raymond B. Biagini, Lawrence S. Ebner, Robert A. Matthews, Daniel L. Russell, Jr., McKenna Long & Aldridge LLP, Washington, D.C., for Amicus Supporting Appellants.Before NIEMEYER, KING, and SHEDD, Circuit Judges.Reversed and remanded with instructions by published opinion. Judge NIEMEYER wrote the opinion, in which Judge SHEDD joined. Judge NIEMEYER wrote a separate opinion giving additional reasons for reversing and remanding. Judge KING wrote a dissenting opinion.
OPINION
NIEMEYER, Circuit Judge:

Four Iraqi citizens, who were seized by the U.S. military in the Iraq war zone and detained by the military in Abu Ghraib prison, near Baghdad, commenced this tort action against a civilian contractor, retained by the military to assist it at the prison in conducting interrogations for the purpose of obtaining intelligence. The plaintiffs allege that while they were detained, the contractor's employees and military personnel conspired among themselves

[658 F.3d 415]

and with others to torture and abuse them and to cover up that conduct.

The contractor filed a motion to dismiss on numerous grounds, including the political question doctrine; federal pre-emption under Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), and Saleh v. Titan Corp., 580 F.3d 1 (D.C.Cir.2009); and derivative sovereign immunity. The district court denied the contractor's motion, concluding that the “[p]laintiffs' claims are justiciable because civil tort claims against private actors for damages do not interfere with the separation of powers”; that defendant's claim of immunity must be developed through discovery, and dismissal now would be premature; and that plaintiffs' claims “are not preempted by the combatant activities exception at this stage because discovery is required to determine whether the interrogations here constitute ‘combatant activities' within the meaning of the exception.” Al Shimari v. CACI Premier Technology, Inc., 657 F.Supp.2d 700, 731 (E.D.Va.2009).

On the contractor's appeal, we reverse and remand with instructions to dismiss this case. We conclude that the plaintiffs' state law claims are preempted by federal law and displaced by it, as articulated in Saleh v. Titan Corp., 580 F.3d 1, 8–12 (D.C.Cir.2009).

I

In response to the unprovoked attacks on the United States on September 11, 2001, during which some 3,000 people were killed, a multi-national force, led by the United States and Great Britain, invaded Iraq in March 2003 to depose Saddam Hussein and rid Iraq of weapons of mass destruction. While Hussein was quickly deposed and no weapons of mass destruction were found, the war in Iraq continued at least for the period relevant to the claims asserted in this action. Indeed, according to various published data, a substantial number of deaths and casualties of both Iraqi civilians and members of the U.S. military continued even up to the time of oral argument, although at a reduced level from the peak in 2006 and 2007. See, e.g., Hannah Fischer, Cong. Research Serv., R40824, Iraq Casualties (Oct. 7, 2010), available at www. fpc. state. gov/ documents/ organization/ 150201. pdf; U.S. Casualties in Iraq, www. globalsecurity. org/ military/ ops/ iraq_ casualties. htm (last visited Jan. 10, 2011).

During the course of the war, the U.S. military seized and detained Iraqi citizens suspected of being enemy combatants or thought to have value in possessing useful intelligence. Some of these detainees were imprisoned at Abu Ghraib prison, near Baghdad. Although the prison was operated in the war zone by the United States Army, “a severe shortage” of military intelligence personnel “prompt[ed] the U.S. government to contract with private corporations to provide civilian interrogators and interpreters.” J.A. 408. These contractors included CACI Premier Technology, Inc., a subsidiary of CACI International, Inc. (collectively herein, “CACI”). The contractors were required to comply with Department of Defense interrogation policies and procedures when conducting “[i]ntelligence interrogations, detainee debriefings, and tactical questioning” of persons in the custody of the U.S. military. J.A. 270–71.

In the Executive Summary of the Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody, the Committee detailed the history of the standards and practices applied in interrogations at Guantanamo Bay, Iraq, and Afghanistan. J.A. 360–65. The Executive Summary noted that the President signed an order on February 7, 2002,

[658 F.3d 416]

stating that the Third Geneva Convention did not apply to the conflict with al-Qaeda and the Taliban and that detainees were not entitled to the protections afforded prisoners of war by the Third Geneva Convention. But the order stated that, as “a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions.” J.A. 354 (emphasis added). Later, in December 2002, following requests from the field to employ aggressive interrogation techniques to obtain intelligence, the Secretary of Defense approved a list of techniques for interrogation, such as stress positions, removal of clothing, use of phobias (such as fear of dogs), and deprivation of light and auditory stimuli. J.A. 360. While the approval was directed at interrogations being conducted at Guantanamo Bay, it was also circulated to military personnel in Iraq and Afghanistan. J.A. 363. But even as aggressive techniques were being employed for interrogation conducted in those theatres, the Secretary rescinded his memorandum approving the specific techniques. J.A. 363. It was unclear, however, what techniques thereafter remained authorized by the Secretary. J.A. 363–64. During the following year, high-level military personnel directed that interrogators in Iraq be more aggressive—telling field personnel that “the gloves are coming off” and “we want these detainees broken.” J.A. 365.

While the record reflects an ongoing policy not to engage in torture, the definition of torture was the subject of continuing debate in the Executive Branch and the military. See J.A. 356–60. Nonetheless, the military believed it to be in the national interest to pursue intelligence through aggressive interrogation techniques, inasmuch as intelligence, especially in the context of the wars in Iraq and Afghanistan, was an especially significant tool of war. Even so, the Senate Armed Services Committee concluded that the approval and use of aggressive techniques were a direct cause of detainee abuse inasmuch as they conveyed a message that it was acceptable to mistreat and degrade detainees in U.S. custody.

While some of the abuses that the plaintiffs detailed in the allegations of their complaint appear to have been approved by the military at one point or another, others were clearly not.

The four Iraqi citizens who commenced this action—Suhail Najim Abdullah Al Shimari, Taha Yaseen Arraq Rashid, Sa'ad Hamza Hantoosh Al–Zuba'e, and Salah Hasan Nusaif Jasim Al–Ejaili—were detained by the U.S. military in Abu Ghraib prison during various periods between 2003 and 2008. They alleged that during their detention, they were interrogated in dangerous and unauthorized stress positions; that they were subjected to sexual assault, repeated beatings, deprivations of food, water and sleep, forced witnessing of the rape of another prisoner, and imprisonment under conditions of sensory deprivation; and that the facts of abuse were covered up. They allege that the abuse and cover-up were carried out by CACI employees in conspiracy with U.S. military personnel.

After the district court granted CACI's motion to stay discovery, CACI filed a motion under Rules 12(b)(1) and 12(b)(6) to dismiss, based on numerous grounds, including the political question doctrine, federal preemption, and derivative sovereign immunity. The district court denied the motion, and CACI filed this interlocutory appeal, challenging the district court's rulings on immunity and on the defenses involving the political question doctrine

[658 F.3d 417]

and federal preemption. See Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (recognizing that a ruling on the President's absolute immunity based on the separation of powers was immediately appealable); see also Al–Quraishi v. L–3 Servs., Inc., 657 F.3d 201 (4th Cir.2011) (holding that an appeal raising the same issues presented here is immediately appealable).
II

Considering CACI's preemption challenge, we conclude, based on the uniquely federal interests involved in this case, that the plaintiffs' tort claims are preempted and displaced under the reasoning articulated in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), as applied to circumstances virtually identical to those before us in Saleh v. Titan Corp., 580 F.3d 1 (D.C.Cir.2009), cert. denied, ––– U.S. ––––, 131 S.Ct. 3055, 180 L.Ed.2d 886 (2011). In Saleh, the D.C. Circuit held that where a civilian contractor is integrated into combat...

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19 practice notes
  • Metzgar v. KBR, Inc. (In re KBR, Inc.), No. 13–1430.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 6, 2014
    ...Circuit's pending decisions in Al–Quraishi v. L–3 Services, Inc., 657 F.3d 201 (4th Cir.2011), Al Shimari v. CACI International, Inc., 658 F.3d 413 (4th Cir.2011), and Taylor v. Kellogg Brown & Root Services, Inc., 658 F.3d 402. This Court ultimately dismissed Al–Quraishi and Al Shimari aft......
  • Shimari v. CACI Int'l, Inc., Nos. 09–1335
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 11, 2012
    ...and that the district courts had erred in permitting the claims against the contractors to proceed. See Al Shimari v. CACI Int'l, Inc., 658 F.3d 413 (4th Cir.2011); Al–Quraishi v. L–3 Servs., Inc., 657 F.3d 201 (4th Cir.2011).4 Consistently therewith, we entered separate judgments reversing......
  • Al–quraishi v. L–3 Serv., Nos. 10–1891
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 21, 2011
    ...context alleged in the complaint is, for purposes of the issues before us, the same as stated in Al-Shimari v. CACI International, Inc., 658 F.3d 413 (4th Cir.2011), which we also decide today. There are, however, differences between the allegations in the two cases. The complaint here stat......
  • Harris v. Kellogg, Brown & Root Servs., Inc., Civil Action No. 08–563.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • July 13, 2012
    ...defense mechanisms qualifies as combatant activities under the Johnson definition. See Johnson, 170 F.2d at 769;see also Taylor, 658 F.3d at 413 (J. Shedd, concurring) (finding that Taylor's claim was preempted under the Johnson test for combatant activities). Second, the broader definition......
  • Request a trial to view additional results
19 cases
  • Metzgar v. KBR, Inc. (In re KBR, Inc.), No. 13–1430.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 6, 2014
    ...Circuit's pending decisions in Al–Quraishi v. L–3 Services, Inc., 657 F.3d 201 (4th Cir.2011), Al Shimari v. CACI International, Inc., 658 F.3d 413 (4th Cir.2011), and Taylor v. Kellogg Brown & Root Services, Inc., 658 F.3d 402. This Court ultimately dismissed Al–Quraishi and Al Shimari aft......
  • Shimari v. CACI Int'l, Inc., Nos. 09–1335
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 11, 2012
    ...and that the district courts had erred in permitting the claims against the contractors to proceed. See Al Shimari v. CACI Int'l, Inc., 658 F.3d 413 (4th Cir.2011); Al–Quraishi v. L–3 Servs., Inc., 657 F.3d 201 (4th Cir.2011).4 Consistently therewith, we entered separate judgments reversing......
  • Al–quraishi v. L–3 Serv., Nos. 10–1891
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 21, 2011
    ...context alleged in the complaint is, for purposes of the issues before us, the same as stated in Al-Shimari v. CACI International, Inc., 658 F.3d 413 (4th Cir.2011), which we also decide today. There are, however, differences between the allegations in the two cases. The complaint here stat......
  • Harris v. Kellogg, Brown & Root Servs., Inc., Civil Action No. 08–563.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • July 13, 2012
    ...defense mechanisms qualifies as combatant activities under the Johnson definition. See Johnson, 170 F.2d at 769;see also Taylor, 658 F.3d at 413 (J. Shedd, concurring) (finding that Taylor's claim was preempted under the Johnson test for combatant activities). Second, the broader definition......
  • Request a trial to view additional results

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