Al Shimari v. CACI Premier Tech., Inc.

• Decision Date: 22 March 2019
• Docket Number: 1:08-cv-827 (LMB/JFA)
• Parties: Suhail Najim Abdullah AL SHIMARI, et al., Plaintiffs, v. CACI PREMIER TECHNOLOGY, INC., Defendant/Third-Party Plaintiff, v. United States of America, Third-Party Defendant.
• Court: U.S. District Court — Eastern District of Virginia

368 F.Supp.3d 935

Suhail Najim Abdullah AL SHIMARI, et al., Plaintiffs,

v.CACI PREMIER TECHNOLOGY, INC., Defendant/Third-Party Plaintiff,

v.United States of America, Third-Party Defendant.

1:08-cv-827 (LMB/JFA)

United States District Court, E.D. Virginia, Alexandria Division.

Signed March 22, 2019

George Brent Mickum, IV, Law Firm of George Brent Mickum IV, Bethesda, MD, John Kenneth Zwerling, Zwerling/Citronberg PLLC, Alexandria, VA, for Plaintiffs.

John F. O'Connor, Jr., Conor Phillip Brady, Steptoe & Johnson LLP, Washington, DC, William David Dolan, III, William D. Dolan, III, PC, Tysons Corner, VA, for Defendant/Third-Party Plaintiff.

Daniel Duane Mauler, US Department of Justice (Mass Ave), Washington, DC, Lauren A. Wetzler, R. Trent McCotter, United States Attorney Office, Alexandria, VA, for Third-Party Defendant.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District JudgeBefore the Court are third-party defendant the United States of America's ("United States") Motion to Dismiss [Dkt. No. 696] and Motion for Summary Judgment [Dkt. No. 1129], as well as defendant/third-party plaintiff CACI Premier Technology, Inc.'s ("CACI") Motion to Dismiss for Lack of Jurisdiction [Dkt. No. 1149]. For the reasons that follow, the United States' Motion to Dismiss will be granted as to Count 4 and denied in all other respects, CACI's Motion to Dismiss will be denied, the United States' Motion for Summary Judgment will be granted, and the Third-Party Complaint will be dismissed as to the United States.

I. BACKGROUND

This civil action arises out of the alleged torture; cruel, inhuman, or degrading treatment ("CIDT"); and war crimes inflicted on plaintiffs Suhail Najim Abdullah Al Shimari ("Al Shimari"), Asa'ad Hamza Hanfoosh Al-Zuba'e ("Al-Zuba'e"), Salah Hasan Nusaif Jasim Al-Ejaili ("Al-Ejaili"), and Taha Yaseen Arraq Rashid ("Rashid")¹ (collectively, "plaintiffs") by members of the United States military and CACI employees while plaintiffs were detained at the Abu Ghraib prison. The procedural and factual background of this civil action is described extensively in the Memorandum Opinion of February 21, 2018 [Dkt. No. 678] and will not be repeated in detail here. For the purposes of the present motions, it is sufficient to understand that plaintiffs, all of whom are Iraqi citizens who were detained at Abu Ghraib for a significant period of time, allege that they suffered severe mistreatment at the hands of military personnel and CACI employees. As summarized in the Memorandum Opinion:

Over the course of six weeks, Al-Ejaili was subjected to repeated stress positions, including at least one that made him vomit black liquid; sexually-related humiliation; disruptive sleeping patterns and long periods of being kept naked or without food or water; and multiple instances of being threatened with dogs. The approximately ten to twelve times he was interrogated involved systematic beatings, including to the head, and being doused with hot and cold liquids. Al-Zuba'e was subjected to sexual assault and threats of rape; being left in a cold shower until he was unable to stand; dog bites and repeated beatings, including with sticks and to the genitals; repeated stress positions, including at least one that lasted an entire day and resulted in his urinating and defecating on himself; and threats that his family would be brought to Abu Ghraib. Al Shimari was subjected to systematic beatings, including on his head and genitals, with a baton and rifle, and some where he was hit against the wall; multiple stress positions, including one where he was forced to kneel on sharp stones, causing lasting damage to his legs; being threatened with dogs; a cold shower similar to Al-Zuba'e's, being doused with water, and being kept in a dark cell and with loud music nearby; threats of being shot and having his wife brought to Abu Ghraib; electric shocks; being dragged around the prison by a rope tied around his neck; and having fingers inserted into his rectum.

Mem. Op. [Dkt. No. 678] 31-32. Plaintiffs allege that as a result of this treatment, they have suffered "severe and lasting physical and mental damage." Id. at 33. For example, Al Shimari, Al-Zuba'e, and Al-Ejaili each allege that they have "been diagnosed with post-traumatic stress disorder

and major depressive disorder," and each "has submitted an expert report detailing how these mental illnesses have caused significant problems in [their] personal and professional lives" through the present day. Id. Each plaintiff also alleges that he continues to suffer from physical symptoms, including pain and scarring, attributable to this mistreatment. Id.

The claims against CACI are brought under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, and were initially for engaging in, conspiring to engage in, and aiding and abetting torture; CIDT; and war crimes, all in violation of international law. On February 21, 2018, the Court granted in part and denied in part CACI's Motion to Dismiss and dismissed the direct liability counts against CACI. In so doing, the Court determined that plaintiffs' factual allegations describe conduct that represents "violations of international law norms that are specific, universal, and obligatory." Mem. Op. 28 (internal quotation marks and citation omitted); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 732, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004).

CACI has brought a Third-Party Complaint [Dkt. No. 665] against the United States of America and John Does 1-60.² According to the allegations in the Third-Party Complaint, the United States military oversaw interrogation operations at Abu Ghraib, including making decisions about which detainees would be interrogated and which "Tiger Teams," consisting of an interrogator (either a CACI employee or a military person) and a linguist, would be assigned to which detainees. Third-Party Compl. ¶ 18. In addition, all Tiger Teams reported to the military chain of command, which included various military noncommissioned officers in charge, the Officer in Charge of the Interrogation Control Element, and the Commanding Officer of the intelligence battalion deployed to Abu Ghraib. Id. ¶ 19. CACI alleges that the United States military "exercised direct and plenary control over all aspects of a detainee's experience at Abu Ghraib," control which included not only assigning teams to detainees but also establishing the Interrogation Rules of Engagement, approving interrogation plans for each detainee, reviewing interrogation reports prepared after each interrogation, and approving certain techniques that required authorization. Id. ¶ 20. The gravamen of CACI's allegations is that the United States military personnel, and not CACI personnel, were ultimately responsible for directing the interrogations of the plaintiffs and subjecting plaintiffs to mistreatment. Accordingly, CACI seeks to hold the government liable on a variety of theories.

In Count 1, CACI seeks common law indemnification against the United States and the John Doe defendants and, in Count 2, exoneration for any judgment that might be entered against CACI for acts of mistreatment toward plaintiffs that the third-party defendants "inflicted, directed, authorized, or permitted." Id. ¶¶ 38, 45. In Count 3, CACI seeks contribution against the third-party defendants to the extent that plaintiffs seek to hold CACI liable on a respondeat superior theory based on CACI employees' entry into a conspiracy with or aiding and abetting the United States or the John Doe defendants. Lastly, in Count 4, CACI brings a breach of contract claim against the United States, in which it alleges that CACI's contract with the government to supply interrogators contained an implied duty of good faith and fair dealing that the government violated when it refused to produce discovery that could have allowed CACI to defend itself against plaintiffs' claims.

The United States has filed a Motion to Dismiss [Dkt. No. 696], in which it argues that the Court lacks subject matter jurisdiction to consider the Third-Party Complaint because all of CACI's claims against it are barred by sovereign immunity. CACI has also filed a derivative Motion to Dismiss [Dkt. No. 1149], in which it argues that any sovereign immunity granted to the United States must apply equally to it due to its status as a government contractor. Because the Court had not ruled on the United States' Motion to Dismiss, the United States has also filed a Motion for Summary Judgment [Dkt. No. 1129], in which it argues that it is entitled to judgment as a matter of law because in 2007, CACI and the United States settled all claims arising out of the task orders pursuant to which CACI sent civilian interrogators to Abu Ghraib.

II. UNITED STATES' MOTION TO DISMISS

A. Standard of Review

Under Fed. R. Civ. P. 12(b)(1), a civil action must be dismissed whenever the court lacks subject matter jurisdiction. The plaintiff has the burden of establishing subject matter jurisdiction. Demetres v. E.W. Constr., Inc., 776 F.3d 271, 272 (4th Cir. 2015). "Because jurisdictional limits define the very foundation of judicial authority, subject matter jurisdiction must, when questioned, be decided before any other matter." United States v. Wilson, 699 F.3d 789, 793 (4th Cir. 2012).

B. Federal Tort Claims Act Waiver of Immunity

CACI first contends that the Federal Tort Claims Act ("FTCA") has waived the government's immunity for the claims at issue in this case. In response, the government argues that the foreign country exception, 28 U.S.C. § 2680(k), operates to bar CACI's tort claims. The FTCA generally waives sovereign immunity and subjects the United States to liability for tort damages "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the...