Suhail Al Shimari v. CACI International, Incorporated

Rehearing en banc granted, November 8, 2011
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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
 No. 09-1335
TECHNOLOGY, INCORPORATED,
Defendants-Appellants.
KELLOGG BROWN & ROOT SERVICES,
INCORPORATED,
Amicus Supporting Appellants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:08-cv-00827-GBL-JFA)
Argued: October 26, 2010
Decided: September 21, 2011
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
2 AL SHIMARI v. CACI INTERNATIONAL
Reversed and remanded with instructions by published opin-
ion. Judge Niemeyer wrote the opinion, in which Judge Shedd
joined. Judge Niemeyer wrote a separate opinion giving addi-
tional reasons for reversing and remanding. Judge King wrote
a dissenting opinion.
COUNSEL
ARGUED: Joseph William Koegel, Jr., STEPTOE & JOHN-
SON, 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 Appel-
lees. Raymond B. Biagini, Lawrence S. Ebner, Robert A.
Matthews, Daniel L. Russell, Jr., MCKENNA LONG &
ALDRIDGE LLP, Washington, D.C., for Amicus Supporting
Appellants.
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 obtain-
ing intelligence. The plaintiffs allege that while they were
detained, the contractor’s employees and military personnel
conspired among themselves 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-
AL SHIMARI v. CACI INTERNATIONAL 3
emption under Boyle v. United Technologies Corp., 487 U.S.
500 (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 pre-
empted by the combatant activities exception at this stage
because discovery is required to determine whether the inter-
rogations here constitute ‘combatant activities’ within the
meaning of the exception." Al Shimari v. CACI Premier Tech-
nology, 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 plain-
tiffs’ state law claims are preempted by federal law and dis-
placed 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 Sad-
dam 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.
4 AL SHIMARI v. CACI INTERNATIONAL
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. gov-
ernment to contract with private corporations to provide civil-
ian 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 conduct-
ing "[i]ntelligence interrogations, detainee debriefings, and
tactical questioning" of persons in the custody of the U.S. mil-
itary. 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,
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 con-
tinue to treat detainees humanely and, to the extent appropri-
ate 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, follow-
ing 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
AL SHIMARI v. CACI INTERNATIONAL 5
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 con-
ducted 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 mem-
orandum approving the specific techniques. J.A. 363. It was
unclear, however, what techniques thereafter remained autho-
rized 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 continu-
ing 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.
6 AL SHIMARI v. CACI INTERNATIONAL
They alleged that during their detention, they were interro-
gated 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 cov-
ered up. They allege that the abuse and cover-up were carried
out by CACI employees in conspiracy with U.S. military per-
sonnel.
After the district court granted CACI’s motion to stay dis-
covery, 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 deriv-
ative 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 and federal preemp-
tion. See Nixon v. Fitzgerald, 457 U.S. 731 (1982) (recogniz-
ing 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., __ F.3d __, Nos. 10-1891
& 10-1921 (4th Cir. Sept. 21, 2011) (holding that an appeal
raising the same issues presented here is immediately appeal-
able).
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 Technolo-
gies Corp., 487 U.S. 500 (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. __, No. 09-
1313, 2011 WL 2518834 (June 27, 2011). In Saleh, the D.C.
Circuit held that where a civilian contractor is integrated into
combat activities over which the military retains command
AL SHIMARI v. CACI INTERNATIONAL 7
authority, a tort claim arising out of the contractor’s engage-
ment in such activities is preempted. Saleh, 580 F.3d at 9. In
reaching its holding, the court applied the rationale of Boyle
to circumstances practically identical to those before us.
In Boyle, a marine pilot’s estate filed suit under Virginia
tort law against United Technologies Corporation, a civilian
contractor of the Department of Defense, alleging the negli-
gent design of a helicopter. Boyle, 487 U.S. at 503. When the
helicopter crashed into the water, the pilot was unable to open
the escape hatch, which opened outward rather than inward,
causing the pilot to drown. Id. United Technologies contended
that the door’s design was specified by the Department of
Defense and that the uniquely federal interests implicated by
its procurement from civilian contractors preempted Virginia
tort law, and the Supreme Court agreed. The Court deter-
mined that the contractor should not be held liable for imple-
menting the government’s design and that entertaining the
pilot’s tort case would undermine the unique federal interests
in the procurement of equipment for the national defense. If
state tort liability were permitted, the federal interests would
be adversely affected because "either the contractor [would]
decline to manufacture the design specified by the Govern-
ment, or it [would] raise its price." Id. at 507.
The Boyle Court held that protecting these uniquely federal
interests conflicted with the purposes and operation of state
tort law and therefore the state law was preempted. It looked
to the discretionary function exception of the Federal Tort
Claims Act to demonstrate that the federal government must
have the flexibility to select the appropriate design for mili-
tary equipment and that allowing state tort liability for a
defective design, where the government had participated in
that design, would significantly conflict with the policy
embodied in and defined by the Federal Tort Claims Act’s
discretionary function exception. Id. at 511-12. Thus, Boyle
recognized a government contractor preemption defense and
applied it so that contractors would be protected from state
8 AL SHIMARI v. CACI INTERNATIONAL
law liability where such protection was necessary to safeguard
uniquely federal interests.
While Boyle’s preemption holding thus functions to dis-
place state law to protect "uniquely federal interests," it did
not rely on any act of Congress to animate the preemption.
Rather, the Boyle preemption, which leaves no federal law
addressing the claim, operates more in effect like sovereign
immunity that is extended to protect civilian government con-
tractors’ functioning on behalf of the sovereign. Thus, the
shape of Boyle preemption, rather than being defined by the
presence of federal law, is defined by the priority of uniquely
federal interests over countervailing state interests as mani-
fested in state law.
As did the courts in Boyle and Saleh, we too conclude that
this case implicates important and uniquely federal interests.
The potential liability under state law of military contractors
for actions taken in connection with U.S. military operations
overseas would similarly affect the availability and costs of
using contract workers in conjunction with military opera-
tions. In this case, that uniquely federal interest was especially
important in view of the recognized shortage of military per-
sonnel and the need for assistance in interrogating detainees
at Abu Ghraib prison. Not only would potential tort liability
against such contractors affect military costs and efficiencies
and contractors’ availability, it would also present the possi-
bility that military commanders could be hauled into civilian
courts for the purpose of evaluating and differentiating
between military and contractor decisions. That effort could
become extensive if contractor employees and the military
worked side by side in questioning detainees under military
control, as the complaint alleges in this case. Moreover, such
interference with uniquely federal interests would be aggra-
vated by the prison’s location in the war zone. Finally, poten-
tial liability under state tort law would undermine the
flexibility that military necessity requires in determining the
methods for gathering intelligence.
AL SHIMARI v. CACI INTERNATIONAL 9
The dissenting opinion takes the position that CACI should
not enjoy any immunity from liability based on its repeated
(and wrong) assertions that CACI acted independently, apart
from the military, and "contrary to military directives." Post,
at 41; see also post, at 30 (noting that "no federal interest
encompasses the torture and abuses that plaintiffs allege");
post, at 32-33 ("Ultimately, the government rather than the
contractor must be in charge of decisionmaking in order for
the contractor to be shielded from liability"); post, at 33 ("the
government’s precise control over its contractor, which is so
integral to Boyle’s reasoning, is absent"); post, at 34 (noting
that government authority for alleged conduct can only be
determined by looking at CACI’s contract with the military);
post, at 35 ("there is no evidence to support the majority’s
supposition of ‘integration’ . . . other than what can be
gleaned from the bare allegations of the Complaint"); post, at
36 (arguing that absence of government role precludes appli-
cation of Boyle). But the dissent’s position is belied by the
allegations of the complaint, which assert that all the miscon-
duct charged was the product of a conspiracy between CACI
personnel and military personnel. See, e.g., Amended Com-
plaint ¶ 1 (alleging a conspiracy between CACI employees
and military personnel, who are "now serving time in military
prison" for their participation); ¶ 70 (alleging that "CACI
employees repeatedly conspired with military personnel to
give Plaintiffs the ‘special treatment’ which was code for tor-
ture of the type endured by Plaintiffs in this hard site"); ¶ 71
(alleging that "CACI employees repeatedly conspired with
military personnel to harm Plaintiffs in various manners and
methods referred to above"); ¶ 118 (alleging that CACI
employees "agreed with each other and others to participate
in a series of unlawful acts"); ¶ 124 (alleging that CACI
employees "aided and abetted others who were torturing
Plaintiffs"); and ¶ 135 (alleging that CACI’s "knowing partic-
ipation in the conspiracy caused grave and foreseeable dam-
ages to Plaintiffs"). In view of these allegations of the
complaint, which, at this stage, we accept as true, we can only
assume for purposes of our decision that CACI employees
10 AL SHIMARI v. CACI INTERNATIONAL
were integrated into the military activities at Abu Ghraib
prison in Baghdad, over which the military retained command
authority.
In addition to the specific adverse impacts on the uniquely
federal interests of interrogating detainees in foreign battle-
fields, a broader and perhaps more significant conflict with
federal interests would arise from allowing tort law generally
to apply to foreign battlefields. "[T]he traditional rationales
for tort law—deterrence of risk-taking behavior, compensa-
tion of victims, and punishment of tortfeasors—are singularly
out of place in combat situations." Saleh, 580 F.3d at 7
(emphasis omitted). In Boyle, the Supreme Court looked to
the Federal Tort Claims Act exceptions for the purpose of
determining whether a significant conflict between state tort
law and federal interests existed. Although the relevant Fed-
eral Tort Claims Act provision in Boyle was the discretionary
function exception, when we employ the same approach to
determine the nature and extent of any conflict here, the rele-
vant provision is the combatant activities exception. See 28
U.S.C. § 2680(j). This exception retains the United States’
sovereign immunity for claims "arising out of the combatant
activities of the military or naval forces, or the Coast Guard,
during time of war." Id. As the D.C. Circuit observed in
Saleh, Congress intended the exception to "eliminat[e] . . . tort
from the battlefield, both to preempt state or foreign regula-
tion of federal wartime conduct and to free military com-
manders from the doubts and uncertainty inherent in potential
subjection to civil suit." Saleh, 580 F.3d at 7. And we agree
with the D.C. Circuit’s conclusion that this interest is impli-
cated even when the suit is brought indirectly—against a
civilian contractor—rather than directly against the United
States itself. The acuteness of a need to preempt state tort law
in the context of battlefield activities is well articulated in
Saleh:
The nature of the conflict in this case is somewhat
different from that in Boyle—a sharp example of dis-
AL SHIMARI v. CACI INTERNATIONAL 11
crete conflict in which satisfying both state and fed-
eral duties (i.e., by designing a helicopter hatch that
opens both inward and outward) was impossible. In
the context of the combatant activities exception, the
relevant question is not so much whether the sub-
stance of the federal duty is inconsistent with a
hypothetical duty imposed by the state or foreign
sovereign. Rather, it is the imposition per se of the
state or foreign tort law that conflicts with the
FTCA’s policy of eliminating tort concepts from the
battlefield. The very purposes of tort law are in con-
flict with the pursuit of warfare. Thus, the instant
case presents us with a more general conflict pre-
emption, to coin a term, "battle-field preemption":
the federal government occupies the field when it
comes to warfare, and its interest in combat is
always "precisely contrary" to the imposition of a
non-federal tort duty.
Saleh, 580 F.3d at 7 (emphasis added) (citing Boyle, 487 U.S.
at 500).1
The uniquely federal interest in conducting and controlling
the conduct of war, including intelligence-gathering activities
within military prisons, thus is simply incompatible with state
tort liability in that context.
This case involves allegations of misconduct in connection
with the essentially military task of interrogation in a war
zone military prison by contractors working in close collabo-
ration with the military. We hold that under these circum-
stances, where a civilian contractor is integrated into wartime
combatant activities over which the military broadly retains
1
Refusing to accept Saleh as the only other case squarely on point, the
dissent chooses to rely heavily on the dissenting opinion in that case and
would have us create a circuit split. Post, at 31, 32, 35 n.5, 37, 38 & n.8,
39, 40 & n.10.
12 AL SHIMARI v. CACI INTERNATIONAL
command authority, tort claims arising out of the contractors’
engagement in such activities are preempted. See Saleh, 580
F.3d at 9.
III
The nation rightly reacted with moral indignation to the
pictures circulated from Abu Ghraib prison. And if these four
Iraqi citizens did in fact suffer in a similar manner from the
unauthorized conduct of military and civilian guards and
interrogators, the nation, including its judges, would react
similarly. Nothing we say in this opinion is intended to con-
done the torture, abuse, and cover-up alleged in the complaint.
Of course, nothing we say should be taken as passing judg-
ment on the substance of these allegations. For our purposes,
they remain allegations that we have accepted as true, but
only for purposes of deciding this appeal.
What we hold is that conduct carried out during war and
the effects of that conduct are, for the most part, not properly
the subject of judicial evaluation. The Commander in Chief
and the military under him have adopted policies, regulations,
and manuals and have issued orders and directives for mili-
tary conduct, and they have established facilities and proce-
dures for addressing violations and disobedience. On this
structural ground alone, and not on any judgment about the
conduct itself, we are requiring that the claims of these four
Iraqi detainees alleging abuse in a military prison in Iraq be
dismissed by the district court.
Therefore, we reverse the district court’s order denying
CACI’s motion to dismiss and remand with instructions to
dismiss.
REVERSED AND REMANDED
WITH INSTRUCTIONS
AL SHIMARI v. CACI INTERNATIONAL 13
NIEMEYER, Circuit Judge, writing separately to reverse and
remand to dismiss:
I would conclude that in addition to preemption, the politi-
cal question doctrine under Baker v. Carr, 369 U.S. 186
(1962), and derivative absolute immunity under Mangold v.
Analytic Services, Inc., 77 F.3d 1442 (4th Cir. 1996), require
dismissal of this case. I note that Judge King would appar-
ently agree with application of the political question doctrine
were he to have addressed the issue. See Taylor v. Kellogg, __
F.3d __, No. 10-1543 (4th Cir. Sept. 21, 2011) (King, J.). But,
in his dissenting opinion, he has chosen to address only fed-
eral preemption and not the political question doctrine. Nor
has he addressed derivative absolute immunity, even though
all three issues were raised by CACI on appeal.
I
On the political question issue, CACI contends that plain-
tiffs’ claims are nonjusticiable because the conduct of its
employees, on which the claims are based, was part of the
military effort undertaken in a war zone and resolution of
those claims would inextricably be tied to an evaluation of the
exercise of war powers, committed under Articles I and II of
the Constitution to coordinate political branches. See Baker,
369 U.S. at 208-17. More specifically, CACI argues that the
interrogation techniques, which lie at the core of plaintiffs’
claims, were an inseparable component of war, and that
"many if not most of the alleged forms of abuse here were
interrogation techniques approved at the highest levels of the
Executive Branch." CACI adds that it is not relevant whether
the "chosen techniques were in fact appropriate—that is pre-
cisely the political question that the courts may not ask or
answer," citing Lin v. United States, 561 F.3d 502, 507 (D.C.
Cir. 2009).
The plaintiffs argue that resolution of their claims is not
textually committed by the Constitution to coordinate political
14 AL SHIMARI v. CACI INTERNATIONAL
branches but, because their claims are tort claims, to the Judi-
cial Branch. The plaintiffs note that their "tort claims do not
even arise out of actions by a coordinate political branch."
Rather, the tort claims arise from conduct by CACI, which is
not, nor is it like, a coordinate branch of government. They
also argue that the torture allegedly committed by CACI
employees was never authorized by the military.
The political question doctrine, at its core, recognizes as
nonjusticiable any question whose resolution is committed to
a coordinate branch of government and whose evaluation by
a court would require the application of standards judicially
undiscoverable or judicially unmanageable. As the Baker
Court summarized, "The nonjusticiability of a political ques-
tion is primarily a function of the separation of powers." 369
U.S. at 210. Even so, the "delicate exercise" of determining
whether questions are indeed political remains the responsi-
bility of the Judicial Branch as the "ultimate interpreter of the
Constitution." Id. at 211.
In Baker, the Court analyzed prior representative decisions
of the Court "to infer from them the analytical threads that
make up the political question doctrine." Id. It observed, for
example, that earlier foreign relations cases presented political
questions where they turned on "standards that defy judicial
application," thus demanding the "single-voiced statement" of
the government’s views. Id. In another example, it observed,
in connection with the war powers, that "isolable reasons for
the presence of political questions" arise in determining
"when or whether a war has ended," id. at 213, and it pointed
out that the war power "includes the power to remedy the
evils which have arisen from its rise and progress and contin-
ues during that emergency," id. at 213 (internal quotation
marks omitted). Distilling the core nature of political ques-
tions, the Court explained that a "lack of judicially discover-
able standards and the drive for even-handed application"
requires referring such questions to the political departments.
AL SHIMARI v. CACI INTERNATIONAL 15
Id. at 214. The Court summarized the circumstances that pres-
ent a political question:
It is apparent that several formulations which vary
slightly according to the settings in which the ques-
tions arise may describe a political question,
although each has one or more elements which iden-
tify it as essentially a function of the separation of
powers. Prominent on the surface of any case held to
involve a political question is found a textually
demonstrable constitutional commitment of the issue
to a coordinate political department; or a lack of
judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without
an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a
court’s undertaking independent resolution without
expressing lack of the respect due coordinate
branches of government; or an unusual need for
unquestioning adherence to a political decision
already made; or the potentiality of embarrassment
from multifarious pronouncements by various
departments on one question.
Unless one of these formulations is inextricable from
the case at bar, there should be no dismissal for non-
justiciability on the ground of a political question’s
presence.
Baker, 369 U.S. at 217. In short, the substantial presence of
any one of the articulated formulations would indicate a polit-
ical question.
The Baker formulations led Justice Powell to distill the
inquiry into three questions:
(i) Does the issue involve resolution of questions
committed by the text of the Constitution to a coor-
dinate branch of government?
16 AL SHIMARI v. CACI INTERNATIONAL
(ii) Would resolution of the question demand that a
court move beyond areas of judicial expertise?
(iii) Do prudential considerations counsel against
judicial intervention?
Goldwater v. Carter, 444 U.S. 996, 998 (1979) (Powell, J.,
concurring in the judgment).
To answer the first question, I begin by noting that the
claims made in this case arose in the context of the war in
Iraq. And seizing, in the war zone, foreigners suspected of
hostile activity or of possessing useful intelligence and then
interrogating them in the field were integral parts of the war
effort. Indeed, the function of detaining and interrogating to
obtain intelligence was undoubtedly critical to the success of
military strategies and campaigns. In such circumstances, the
judgment of whom to interrogate, what to inquire about, and
the techniques to use falls comfortably within the powers of
the Commander in Chief and his subordinates in the chain of
command.
It is not disputed that this power to conduct war and deter-
mine its objectives and means is explicitly committed by the
Constitution to Congress and the President. See U.S. Const.
art. I, § 8, cl. 11-14 (authorizing Congress to declare war, to
raise armies and create a navy, and to make rules for the mili-
tary); id. art. II, § 2 (providing that the President "shall be
Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several States, when called
into the actual Service of the United States"). This assignment
to the President was deliberate and considered. As the Feder-
alist papers explain, "Of all the cares or concerns of govern-
ment, the direction of war most peculiarly demands those
qualities which distinguish the exercise of power by a single
hand. The direction of war implies the direction of the com-
mon strength; and the power of directing and employing the
common strength, forms a usual and essential part in the defi-
AL SHIMARI v. CACI INTERNATIONAL 17
nition of the executive authority." The Federalist No. 74, at
383 (Alexander Hamilton, March 25, 1788) (George W.
Carey & James McClellan eds., 1990).
We must thus ask whether plaintiffs’ claims, arising in the
context of a war, challenge the exercise of war powers so
committed to coordinate political branches. While it would
certainly be so if their challenges were directed to military
actions and personnel, when directed at a conspiracy of U.S.
military personnel and employees of civilian contractors
engaged to conduct military functions, the issue is more
nuanced. Making the question more complex is the allegation
that the members of the conspiracy are alleged to have dis-
obeyed orders and violated limits established by persons
higher in the chain of military command.
In a case brought against the military directly, rather than
a contractor, the allegation that a soldier disobeyed orders
surely would not make the claim justiciable if it otherwise
was nonjusticiable. Thus, if interrogation was designed to
uncover the location and names of enemy personnel and their
plans, the fact that a military interrogator applied techniques
more aggressive than those approved by his commander for
aggressive interrogation would not remove the activity from
the military effort, any more than would a soldier’s shooting
an enemy soldier even after he had been seized and disarmed.
Such conduct, albeit disobedient, is undertaken grossly in the
course of prosecuting war and advancing the strategy of the
military adopted by upper level commanders for carrying out
the war. Just as the President and his designees are given the
authority to conduct the war and interrogate battlefield prison-
ers free from judicial oversight, they are given the authority
to address disobedience and impose discipline.
To be sure, this analysis, when applied to conduct engaged
in by civilian contractors, becomes more attenuated because
civilian contractors do not enjoy every protection from suit
that the military might enjoy. As our dissenting colleague rec-
18 AL SHIMARI v. CACI INTERNATIONAL
ognizes in another opinion today dismissing a claim against
a military contractor based on the political question doctrine,
"we are obliged to carefully assess the relationship between
the military and [the contractor], and to ‘look beyond the
complaint, [and] consider[ ] how [the plaintiff] might prove
[his] claim[ ] and how [defendant] would defend.’" Taylor v.
Kellogg, __ F.3d at __, No. 10-1543 (4th Cir. Sept. 21, 2011),
slip op. at 13 (quoting Lane v. Halliburton, 529 F.3d 548, 565
(5th Cir. 2008) (some alterations in original)). When, as here,
this assessment demonstrates that the civilian contractors
were working side by side with military personnel to carry out
military operations under the ultimate supervision and com-
mand of the military in a war zone, evaluation of their con-
duct raises the same political question that would be raised by
a direct challenge to the military.
CACI’s function here (interrogating persons seized by the
military for interrogation) was ultimately a military function
under the control of the military, and therefore the decision to
dismiss the plaintiff’s claims is not affected by the fact that
CACI was a civilian contractor. The U.S. military had picked
up the detainees in the war zone and believed that they should
be interrogated. The detainees remained in the custody of the
military throughout interrogations, and the military both oper-
ated and guarded the prison. Because of personnel shortages,
however, the interrogation activities were carried out not only
by military personnel but also by civilian employees engaged
to perform the same function. They were instructed on
approved interrogation techniques and ordered not to violate
the limitations. In addition, the intelligence being sought
through interrogation was defined by the military’s goals such
that the substance of the questions posed to detainees was of
U.S. military origin. Moreover, the actions complained of are
alleged to have been committed jointly by CACI employees
and military personnel, and all activities are alleged to have
fallen within the scope of a conspiracy that included CACI
employees and military personnel.
AL SHIMARI v. CACI INTERNATIONAL 19
Accordingly, in response to the first question in considering
the political question doctrine—whether resolution of the
questions in this case is committed by the text of the Constitu-
tion to a coordinate branch of government—I conclude that
the answer is undoubtedly yes, even though the allegations
may involve imperfect or disobedient conduct by contractors.
The answer to the second question is more complicated and
requires a determination of whether resolution of the plain-
tiffs’ claims challenging aggressive interrogation techniques
would take the courts into areas beyond their judicial exper-
tise or competence. See Taylor, __ F.3d at ___, No. 10-1543,
slip op. at 14 ("[W]e must, to resolve this appeal, gauge the
degree to which national defense interests may be implicated
in a judicial assessment of [the tort claim]").
As a central component of conducting war, the President,
the Executive Branch, and the military determined that
aggressive interrogation techniques were a military necessity
inasmuch as the war in Iraq involved an enemy that was
spread out among numerous factions and cells within the pop-
ulation, without a distinguishing organization, uniforms, or
bases of operation. Thus, as a matter of policy, the President
found it inconsistent with military necessity to afford seized
enemy combatants the protections of the Third Geneva Con-
vention. And in carrying out that determination, the Secretary
of Defense and high-level military officers directed that
aggressive interrogation be employed. There was, to be sure,
a debate within the Executive Branch about what were mor-
ally appropriate techniques and what could be justified by
military necessity. But these questions were not addressed by
applying standards that were judicially cognizable; they were
difficult judgments that involved a delicate weighing of public
policy, the public sense of morality, public decency, the cus-
toms of war, international treaties, and military necessity. One
could hardly find a question more unsuited for the judiciary.
Indeed, in any given war, the President might choose to
impose no limits on specific military actions ordered. For
20 AL SHIMARI v. CACI INTERNATIONAL
example, we know that in connection with the response to the
9/11 attacks launched against the United States, the President
considered, and perhaps even approved, an order to shoot
down a U.S. civilian airplane carrying innocent American citi-
zens, determining that the order was in the greater public
interest. In that case, the President had information that the
airplane was headed for the White House or the Capitol in
Washington, D.C. That type of question could hardly have
been addressed or reviewed by a court, which would have had
few if any standards to apply.
That is not to say that the evaluation of battlefield interro-
gations calls for the same intensity of response as does the
response to an enemy-captured civilian airplane en route to
the nation’s capital. Nonetheless, interrogation was a military
tool for use in prosecuting the war effort. To engage a court
in the question of which techniques were militarily necessary
but yet morally acceptable and consistent with American pol-
icy, at least as defined by the President and Congress, would
require a court to exercise the very powers committed to those
branches. The military necessity of actions in the war zone,
including battlefield interrogations of detainees, cannot be
explored by a court without requiring it to evaluate judgments
about which the judiciary lacks expertise and competence. For
a court to evaluate military policy that interrogation had to be
more aggressive, that "the gloves are coming off," and that
"these detainees must be broken," it would have to evaluate
the entire basis for the military decisions or be at a loss as to
where to begin. Such questions go to the heart of the political
question doctrine.
On this question, as noted above with respect to military
personnel who disobey orders, the fact that CACI employees
may have disobeyed orders does not remove their activities
from the military function and would not change the analysis.
A court’s attempt to evaluate the disobedient activities of
CACI employees would inappropriately enmesh the court into
military strategies, decisions, and activities to the same extent
AL SHIMARI v. CACI INTERNATIONAL 21
as if they were undertaken entirely by military personnel. The
political question doctrine recognizes that the Constitution
assigns such matters to Congress, the Commander in Chief,
and the Executive Branch generally. See Tiffany v. United
States, 931 F.2d 271, 277 (4th Cir. 1991) ("Of the legion of
governmental endeavors, perhaps the most clearly marked for
judicial deference are provisions for national security and
defense. . . . The strategy and tactics employed on the battle-
field are clearly not subject to judicial review").
Finally, addressing Justice Powell’s third question, I con-
clude that it would be imprudent for civilian courts to attempt
to adjudge military acts under common law tort principles. To
entertain the plaintiffs’ claims under those principles would
introduce, for the first time, tort principles in a field of battle,
raising a yet broader array of interferences by the judiciary
into the military functions committed to Congress, the Presi-
dent, and the Executive Branch. When deciding whether this
claim raises a political question, we must assess "first, the
extent to which [the contractor] was under the military’s con-
trol, and second, whether national defense interests were
closely intertwined with the military’s decisions governing
[the contractor’s] conduct." Taylor, __ F.3d at __, No. 10-
1543, slip op. at 17. Here, the CACI was engaged by the mili-
tary to pursue interrogations under the command and control
of military personnel, and decisions about the scope and
nature of these interrogations, even more so than decisions
about "whether back-up power should have been supplied" to
a particular area, id. at 18, were intricately intertwined with
national defense interests.
For these reasons, I would defer to the political branches
for how best to manage military prisons, to interrogate detain-
ees for military intelligence, and to punish those within the
prison who disobey military directives. See Carmichael v.
Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271 (11th Cir.
2009).
22 AL SHIMARI v. CACI INTERNATIONAL
II
I would also conclude that this suit is barred by the doctrine
of derivate absolute immunity, as articulated in Mangold v.
Analytic Services, Inc., 77 F.3d 1442 (4th Cir. 1996). See also
Murray v. Northrop Grumman Info. Tech., Inc., 444 F.3d 169,
175 (2d Cir. 2006) (government contractor absolutely immune
from tort liability for performing contracted-for governmental
function, citing Mangold, 77 F.3d at 1447); Pani v. Empire
Blue Cross/Blue Shield, 152 F.3d 67, 71-73 (2d Cir. 1998)
(same); Midland Psychiatric Assocs., Inc. v. United States,
145 F.3d 1000, 1005 (8th Cir. 1998) (common law official
immunity barred tort suit against Medicare insurer). Deriva-
tive absolute immunity protects contractors from suit where
such immunity is necessary to protect a discretionary govern-
ment function and the benefits of immunity outweigh its
costs.
In Mangold, we held that a government contractor was
absolutely immune from a state tort suit for defamation based
on statements that the contractor made in response to an offi-
cial government investigation about its dealings with the gov-
ernment. There, the Air Force had conducted an investigation
into the activities of an Air Force colonel who allegedly
exerted his influence to pressure a government contractor to
hire a family friend. Mangold, 77 F.3d at 1444-45. In
response to questions posed by the Air Force, the contractor
provided information to the Air Force confirming that the col-
onel did indeed press the contractor to hire the friend, despite
the friend’s lack of credentials for the position. Id. Following
the contractor’s response to the Air Force, the colonel sued
the contractor for defamation under Virginia law. Id. We con-
cluded that the discretionary governmental action of investi-
gating suspected fraud was protected by absolute immunity
and that the immunity extended "to persons in the private sec-
tor who are government contractors participating in official
investigations of government contracts" "to the extent that the
public benefits obtained by granting immunity outweigh[ed]
AL SHIMARI v. CACI INTERNATIONAL 23
its costs." Id. at 1447. Such immunity could be extended to a
private contractor because the "immunity [was] defined by the
nature of the function being performed and not by the office
or the position of the particular employee involved." Id. Thus,
[i]f absolute immunity protect[ed] a particular gov-
ernment function, no matter how many times or to
what level that function [was] delegated, it [was] a
small step to protect that function when delegated to
private contractors, particularly in light of the gov-
ernment’s unquestioned need to delegate govern-
mental functions. The government cannot perform
all necessary and proper services itself and must
therefore contract out some services for performance
by the private sector. When the government dele-
gates discretionary governmental functions through
contracting with private contractors, therefore, the
same public interest identified in Barr [v. Matteo,
360 U.S. 564 (1959)] and Westfall [v. Erwin, 484
U.S. 292 (1988)]—the interest in efficient
government—demands that the government possess
the ability meaningfully to investigate these con-
tracts to ensure that they are performed without
fraud, waste, or mismanagement.
Id. at 1447-48 (emphasis added).
As in Mangold, the military made the discretionary deter-
mination to interrogate detainees and required the assistance
of civilian contractors to perform the interrogations. Here, as
in Mangold, extending immunity to the contractors is neces-
sary to protect the underlying discretionary governmental
activity, in this case, performing wartime interrogations.
Nonetheless, for derivative absolute immunity to apply, its
benefits must outweigh its costs. The costs of immunity obvi-
ously arise from denying injured parties access to courts to
assert otherwise legitimate claims. Its benefit is that it pre-
24 AL SHIMARI v. CACI INTERNATIONAL
vents vexatious litigation from impairing the efficient func-
tioning of government. In Mangold, we concluded that the
government had a strong interest in receiving contractor assis-
tance during investigations of contracting improprieties, and
that such assistance would be less forthcoming if contractors
could be subject to suit for their participation. Mangold, 77
F.3d at 1447. The court held that this interest outweighed that
of potentially defamed individuals in seeking compensation.
Id. Here, the military had a strong need to receive contractor
assistance in its interrogations because of a substantial short-
age of personnel. And interrogations were a major component
of the war effort designed to gather military intelligence. Like
in Mangold, subjecting contractors to tort actions would risk
interference with interrogations, as well as the availability of
civilian assistance. Because of the important public interest in
the effective prosecution of war and the alternative mecha-
nisms already in place to ensure against, and compensate for,
the abuse for which the plaintiffs seek compensation in this
case, I would conclude, as in Mangold, that the benefits of
immunity outweigh its costs.
At bottom, I would rely on these additional grounds—the
political question doctrine and derivative absolute immunity
—to reverse the district court’s order and remand this case to
the district court for dismissal.
KING, Circuit Judge, dissenting:
I write to dissent from my distinguished colleagues in the
majority. For the same reasons I discuss at length in my dis-
senting opinion in our companion case of Al-Quraishi v. L-3
Services, Inc., ___ F.3d ___, No. 10-1891(L) (4th Cir. Sept.
21, 2011), we lack jurisdiction over this interlocutory appeal
to decide, as the majority does, that the plaintiffs’ claims are
preempted by federal law. Were we authorized to adjudicate
the merits of the preemption defense, however, we should rule
it unavailing here.
AL SHIMARI v. CACI INTERNATIONAL 25
I.
A.
The plaintiffs’ claims arise from their maltreatment while
detained at the Abu Ghraib prison during our nation’s military
campaign in Iraq. According to the operative Amended Com-
plaint (the "Complaint"), the allegations of which we are
bound to take as true at this stage of the proceedings, civilian
employees of CACI International, Inc., and CACI Premier
Technology, Inc. (collectively "CACI"), while interrogating
the plaintiffs or assisting in their interrogation, conspired with
military personnel to "instigate[ ], direct[ ], participate[ ] in,
[and] aid[ ] and abet[ ] conduct towards detainees that clearly
violated the Geneva Conventions, the Army Field Manual,
and the laws of the United States." Complaint ¶ 67.1 One
plaintiff alleges that he was "forcibly subjected to sexual acts
by a female as he was cuffed and shackled to cell bars," was
"dragged by a rope where part of it was tied tightly to his
penis," and was "subjected to [a] mock execution." Id. ¶¶ 32,
37, 39. Other asserted abuses include beatings, food and sleep
deprivation, humiliation, and being forced to witness the rape
of a female detainee. See generally id. ¶¶ 11-63.
The Complaint relates that CACI has "admitted . . . that it
had the ability to control, direct and influence the actions per-
formed by employees," and it insists that CACI was able "to
prevent employees from torturing plaintiffs." Complaint ¶¶
76-77. The plaintiffs further maintain that "CACI at all times
[was] obliged by the terms of its contract to supervise [its]
employees." Id. ¶ 78. CACI was aware, according to the
plaintiffs, "that the United States intended and required that
any person acting under the contract [with] the United States
would conduct themselves in accordance with the relevant
1
The Complaint is found at J.A. 16-41. (Citations herein to "J.A. ___"
refer to the contents of the Joint Appendix filed by the parties to this
appeal.)
26 AL SHIMARI v. CACI INTERNATIONAL
domestic and international laws." Id. ¶ 98. Nonetheless, by
engaging in and directing the torture of the plaintiffs, CACI
"directly contradicted the contract terms, domestic law and
the United States’ express policy against torture." Id. ¶ 115.
CACI, the plaintiffs say, is consequently liable to them under
Virginia law for the torts of assault and battery, sexual assault,
intentional and negligent infliction of emotional distress, and
negligent hiring and supervision.
Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure, CACI moved to dismiss the Com-
plaint, asserting, among other things: (1) that the suit raised
a nonjusticiable political question; (2) that CACI was entitled
to immunity derived from its association with the sovereign;
and (3) that, as a logical extension of the Supreme Court’s
decision in Boyle v. United Technologies Corp., 487 U.S. 500
(1988), the plaintiffs’ state law claims were preempted, hav-
ing arisen in the context of combatant activities conducted in
the federal interest. The district court denied CACI’s motion,
rejecting its argument that the plaintiffs’ claims were nonjusti-
ciable. See Al Shimari v. CACI Premier Tech., Inc., 657 F.
Supp. 2d 700, 708-14 (E.D. Va. 2009). The court declined to
decide the immunity issue at the dismissal stage, concluding
that it could not "determine the scope of Defendants’ govern-
ment contract, the amount of discretion it afforded Defendants
in dealing with detainees, or the costs and benefits of recog-
nizing immunity in this case without examining a complete
record after discovery has taken place." Id. at 714. The limited
record, according to the district court, also cast doubt that
CACI’s interrogation practices amounted to "combatant activ-
ities." Id. at 725. The court ruled that the plaintiffs’ claims
were in any event "not preempted under Boyle," because they
"do not present a significant conflict with a uniquely federal
interest." Id.2 Five days following the district court’s ruling,
before discovery could commence, CACI noted this appeal.
2
Though it declined to dismiss the state law claims, the district court
granted CACI’s motion insofar as it pertained to federal claims asserted
by the plaintiffs pursuant to the Alien Tort Statute, 28 U.S.C. § 1350. See
Al Shimari, 657 F. Supp. 2d at 726-28.
AL SHIMARI v. CACI INTERNATIONAL 27
Barb.
I need not reiterate in extravagant detail why jurisdiction
over this appeal is lacking, having devoted considerable space
to the subject in my dissenting opinion in today’s companion
case of Al-Quraishi v. L-3 Services, Inc., ___ F.3d ___, No.
10-1891(L) (4th Cir. Sept. 21, 2011). Suffice it to say that the
only basis that could arguably support the exercise of collat-
eral order jurisdiction, see Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541 (1949), the denial of dismissal on
the ground of derivative sovereign immunity, was not "con-
clusively determined" by the district court as required by Will
v. Hallock, 546 U.S. 345, 349 (2006). The denials of dismissal
based on the political question doctrine and on Boyle preemp-
tion, as applied by the District of Columbia Circuit in Saleh
v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), though conclu-
sively determined, abridged no immunity. As a result, neither
ground meets the additional prerequisite of being "effectively
unreviewable" on appeal from a final judgment. See Will, 546
U.S. at 349.
The majority nevertheless accepts appellate jurisdiction,
see ante at 6, reversing the district court’s interlocutory order
and remanding with instructions to dismiss the plaintiffs’
remaining claims as preempted on the same theory underlying
the D.C. Circuit’s decision in Saleh. Putting aside the jurisdic-
tional defect for argument’s sake, I take issue with the majori-
ty’s embrace of Saleh preemption to relieve CACI of its
potential liability in this matter.3
3
I address Saleh preemption on the merits because there is much in the
majority’s provocative analysis of the issue that should not be left unan-
swered. Inasmuch as CACI’s derivative sovereign immunity and political
question defenses are not addressed in the majority opinion, but discussed
only in Judge Niemeyer’s separate, nonprecedential opinion, I believe it
would be unhelpful and confusing to debate them here. Left to my own
devices, I would not resolve any of CACI’s arguments on the merits as we
lack jurisdiction to consider them. In Taylor v. Kellogg, ___ F.3d ___, No.
28 AL SHIMARI v. CACI INTERNATIONAL
II.
A.
1.
The majority purports merely to apply the Supreme Court’s
decision in Boyle v. United Technologies Corp., 487 U.S. 500
(1988), but by adopting the reasoning of Saleh v. Titan Corp.,
580 F.3d 1 (D.C. Cir. 2009), a case presenting facts highly
similar to this one, it affords Boyle an excessively robust elas-
ticity. The Boyle Court recognized a form of implicit preemp-
tion of state law, based on a "significant conflict" between
"uniquely federal interests" and state law duties the plaintiff
sought to impose on a private contractor. See 487 U.S. at 504,
506, 512.
The contract in Boyle was one for procurement in which the
government contractor was to manufacture and deliver mili-
tary helicopters with an outward-opening escape hatch. This
hatch could not be opened underwater, which allegedly ren-
dered the design defective under state law. To determine
whether a significant conflict was present, the Court looked
to the statutory "discretionary functions" exception to the Fed-
eral Tort Claims Act (the "FTCA"), which reserves the sover-
eign immunity of the United States for, among other things,
"[a]ny claim . . . based upon the exercise or performance or
the failure to exercise or perform a discretionary function or
duty on the part of a federal agency or an employee of the
10-1543 (4th Cir. Sept. 21, 2011), also decided today, I authored the opin-
ion of the Court in which, as Judge Niemeyer points out, ante at 15, we
affirmed the district court’s judgment on the ground that the dispute in that
case presented a nonjusticiable political question. Our jurisdiction in Tay-
lor was unquestioned, however, in that the appeal was taken from the dis-
trict court’s indisputably final decision dismissing the plaintiff’s case. See
28 U.S.C. § 1291.
AL SHIMARI v. CACI INTERNATIONAL 29
Government, whether or not the discretion involved be
abused." 28 U.S.C. § 2680(a).
Guided by this specific FTCA exception, the Supreme
Court reasoned that "the selection of the appropriate design
for military equipment to be used by our Armed Forces is
assuredly a discretionary function" under the FTCA because
"[i]t often involves not merely engineering analysis but judg-
ment as to the balancing of many technical, military, and even
social considerations, including specifically the trade-off
between greater safety and great combat effectiveness."
Boyle, 487 U.S. at 511. Accordingly, the Court concluded that
"state law which holds Government contractors liable for
design defects in military equipment does in some circum-
stances present a ‘significant conflict’ with federal policy and
must be displaced." Id. at 512. The Court acknowledged that
the Boyle preemptive principle was distinct from "ordinary"
preemption and was not tethered to "legislation specifically
immunizing Government contractors from liability." Id. at
504, 507.
The Supreme Court stated in no uncertain terms, however,
that the presence of a federal interest "merely establishes a
necessary, not a sufficient, condition for the displacement of
state law." 487 U.S. at 507. Such a "[d]isplacement will occur
only where . . . a significant conflict exists between an identi-
fiable federal policy or interest and the operation of state law,
or the application of state law would frustrate specific objec-
tives of federal legislation." Id. (citations, internal quotation
marks, and alterations omitted). Although "[t]he conflict with
federal policy need not be as sharp as that which must exist
for ordinary preemption . . . , conflict there must be." Id. at
507-08 (emphasis added).
2.
The rather obvious problem with invoking the govern-
ment’s "interest in conducting and controlling the conduct of
30 AL SHIMARI v. CACI INTERNATIONAL
war," ante at 11, to preempt the plaintiffs’ claims of gratu-
itous torture by an independent contractor, is that there is no
conflict between the two. No federal interest implicates the
torture and abuse of detainees. To the contrary, the repeated
declarations of our executives, echoed by the Congress,
expressly disavow such practices.
For example, shortly after graphic photos depicting
detainee abuse at Abu Ghraib became public, President Bush
vowed that "the practices that took place in that prison are
abhorrent and they don’t represent America." White House,
Press Release, President Bush Meets with Al Arabiya Televi-
sion, 2004 WLNR 2540883 (May 5, 2004). He pledged to
"[t]he people of the Middle East . . . that we will investigate
fully, that we will find out the truth," and further assured that
"justice will be served." Id. Similarly, Secretary of Defense
Rumsfeld testified before Congress that the Abu Ghraib pris-
oner abuses were "inconsistent with the values of our nation,"
asserting that "[p]art of [our] mission — part of what we
believe in — is making sure that when wrongdoing or scandal
occur, that they are not covered up, but exposed, investigated,
publicly disclosed — and the guilty brought to justice." Don-
ald H. Rumsfeld, Testimony Before the Senate and House
Armed Services Committees 1, 6 (May 7, 2004).
For its part, the Senate "condemn[ed] in the strongest possi-
ble terms the despicable acts at Abu Ghraib prison." S. Res.
356, 108th Cong. (2004). Meanwhile, the House of Represen-
tatives declared that the practices at Abu Ghraib "offen[d] . . .
the principles and values of the American people and the
United States military . . . and contradict the policies, orders,
and laws of the United States military and undermine the abil-
ity of the United States military to achieve its mission in
Iraq." H.R. Res. 627, 108th Cong. (2004).
The point is not confined to the facile observation that no
federal interest encompasses the torture and abuses that the
plaintiffs allege. Indeed, it is quite plausible that the govern-
AL SHIMARI v. CACI INTERNATIONAL 31
ment would view private tort actions against the perpetrators
of such abuses as advancing the federal interest in effective
military activities. The government has not intervened on
behalf of the contractors in this dispute, and, in fact, the
Department of Defense (the "DOD") has promulgated a final
rule advising contractors that the "[i]nappropriate use of force
could subject a contractor or its subcontractors or employees
to prosecution or civil liability under the laws of the United
States and the host nation." Contractor Personnel Authorized
to Accompany U.S. Armed Forces, 73 Fed. Reg. 16,764,
16,764, 16,767 (Mar. 31, 2008) (the "DOD Rule").
The DOD Rule "may reflect the government’s general view
that permitting contractor liability will advance, not impede,
U.S. foreign policy by demonstrating that ‘the United States
is committed to ensuring that its contractors are subject to
proper oversight and held accountable for their actions.’"
Saleh, 580 F.3d at 28 (Garland, J., dissenting) (quoting U.S.
Dep’t of State, Press Release, Department of State Legal
Adviser Promotes Accountability for Private Military and
Security Companies (Sept. 17, 2008)). As the Saleh dissent
emphasizes:
the government’s failure to defend the contractors
may reflect the Executive Branch’s view that the
country’s interests are better served by demonstrat-
ing that "people will be held to account according to
our laws." And the Executive may believe that one
way to show that "people will be held to account" is
to permit this country’s legal system to take its ordi-
nary course and provide a remedy for those who
were wrongfully injured.
Id.
At bottom, Boyle does not countenance the majority’s
approach because there simply is no conflict — much less, a
"significant conflict" — between the asserted state law duties
32 AL SHIMARI v. CACI INTERNATIONAL
and any uniquely federal interest. Quite the opposite: the
plaintiffs allege that CACI violated federal policy. Boyle does
not apply, because, as the Saleh dissent explained:
Boyle has never been applied to protect a contractor
from liability resulting from the contractor’s viola-
tion of federal law and policy. And there is no dis-
pute that the conduct alleged, if true, violated both.
Hence, these cases are not within the area where the
policy of the "discretionary function" would be frus-
trated, and they present no significant conflict with
federal interests. Preemption is therefore not justified
under Boyle.
Saleh, 580 F.3d at 23 (Garland, J., dissenting) (internal quota-
tion marks and citations omitted).
B.
1.
Another premise underlying Boyle’s reasoning — the rigid
control that the government exerts over contractors in procur-
ing military equipment — is absent where, as here, the gov-
ernment contracted for general services only. As the Boyle
Court acknowledged, selecting military equipment "often
involves not merely engineering analysis but judgment as to
the balancing of many technical, military, and even social
considerations." 487 U.S. at 511. Ultimately, the government
rather than the contractor must be in charge of decisionmak-
ing in order for the contractor to be shielded from liability.
Consistently with that principle, the Boyle test for preemption
"assure[s] that the suit is within the area where the policy of
the ‘discretionary function’ would be frustrated" — that is,
"that the design feature in question was considered by a Gov-
ernment officer, and not merely by the contractor itself." Id.4
4
More recently, the Supreme Court has reiterated the narrow scope of
the Boyle preemption defense, as well as its grounding in a contractor’s
AL SHIMARI v. CACI INTERNATIONAL 33
By contrast, the government itself has recognized that such
judgments are not present in general services contracts. As the
DOD explained in a recent rulemaking, "[t]he public policy
rationale behind Boyle does not apply when a performance-
based statement of work is used in a services contract,
because the Government does not, in fact, exercise specific
control over the actions and decisions of the contractor or its
employees or subcontractors." DOD Rule, 73 Fed. Reg. at
16,768. In other words, the government’s precise control over
its contractor, which was so integral to Boyle’s reasoning, see
487 U.S. at 509-12, is absent in a general services contract in
which the government simply requires "a contractor to ensure
its employees comply with host nation law and other authori-
ties," DOD Rule, 73 Fed. Reg. at 16,768.
It follows that while military contractors might be able to
assert Boyle-type arguments when the government’s decisions
result in injuries to third parties, the DOD adamantly opposes
"send[ing] a signal that would invite courts to shift the risk of
loss to innocent third parties" where "contractors . . . seek[ ]
to avoid accountability to third parties for their own actions
by raising defenses based on the sovereignty of the United
States." DOD Rule, 73 Fed. Reg. at 16,768 (emphasis added).
Accordingly, the DOD elected to "retain[ ] the current rule of
law, holding contractors accountable for the negligent or will-
ful actions of their employees, officers, and subcontractors."
Id. In obstinate opposition to the government’s prescribed
path, the majority would protect contractors from civil liabil-
compliance with government instructions. For example, the Court has
referred to Boyle as presenting a "special circumstance" in which "the gov-
ernment has directed a contractor to do the very thing that is the subject
of the claim." Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 74 n.6
(2001). As the Fifth Circuit recently explained, "[t]he government contrac-
tor defense in Boyle, stripped to its essentials, is fundamentally a claim
that the Government made me do it." Katrina Canal Breaches Litig. Steer-
ing Comm. v. Wash. Group Int’l, Inc., 620 F.3d 455, 465 (5th Cir. 2010).
34 AL SHIMARI v. CACI INTERNATIONAL
ity even when there is no indication that the government
authorized the conduct underlying the asserted liability.
2.
Contrary to the majority’s position, whether the govern-
ment authorized CACI’s conduct in this case can only be
ascertained by examining the contract between the parties,
which, as the district court lamented, is not in the record at the
dismissal stage. The contract would shed light on:
• The contractor’s delegated discretionary author-
ity — that is, the services the contractor was to
provide under the contract — and whether the
contractor acted within the bounds of such
authority, see Rodriguez v. Lockheed Martin
Corp., 627 F.3d 1259, 1266 (9th Cir. 2010)
(refusing to deem claim preempted under Boyle
where "there is no proof to establish as a matter
of law that the equipment [alleged to have injured
the victims] conformed to the government’s pre-
cise specifications");
• Whether such authority was "validly conferred"
to the contractor, see Boyle, 487 U.S. at 506
(quoting Yearsley, 309 U.S. at 20-21); and
• Whether and to what extent the government had
a significant interest in the specific services to be
provided, see id. at 509 (recognizing that "signifi-
cant conflict" justifying preemption may not be
present even where state duty is "precisely con-
trary" to contractual duty, since government may
lack "significant interest in th[e] particular fea-
ture" specified in contract).
The majority’s extra-contractual inquiry into whether "a civil-
ian contractor is integrated into wartime combatant activities
AL SHIMARI v. CACI INTERNATIONAL 35
over which the military broadly retains command authority,"
ante at 11-12 (citing Saleh, 580 F.3d at 9), is of scant moment
considering the lack of agency possessed by the rank-and-file
military to alter or augment the material terms of the contract.5
Of course, there is no evidence to support the majority’s
supposition of "integration" (whatever that means) in this
case, other than what can be gleaned from the bare allegations
of the Complaint. But the question is wholly irrelevant absent
any allegation that the terms of the written agreement were
materially supplemented or changed (or even could be, in the
event that the contract contained a valid provision barring
parol alterations), either by representatives with authority to
act or through the parties’ course of conduct or dealing. Here,
although the plaintiffs allege a conspiracy with members of
the military, they are entitled to the inference that the conspir-
acy did not define the contract, but instead permitted CACI to
act outside its bounds. Cf. ante at 5 ("While some of the
abuses that the plaintiffs detailed in the allegations of the
complaint appear to have been approved by the military at one
point or another, others were clearly not.").6
5
The Army Field Manual provides that "[c]ommanders do not have
direct control over contractors or their employees . . . ; only contractors
manage, supervise, and give directions to their employees." U.S. Dep’t of
the Army, Field Manual 3-100.21, Contractors on the Battlefield § 1-22
(2003). In turn, the contractors must adhere to their contractual obligations
without regard to the chain of command. As the Field Manual emphasizes,
"the terms and conditions of the contract establish the relationship
between the military (U.S. Government) and the contractor . . . . Only the
contractor can directly supervise its employees. The military chain of
command exercises management control through the contract." Id. at 3-
100.21, § 1-25. As such, the government has "no more control than any
contracting party has over its counterparty. And that — without more —
is not enough to make the conduct of a contractor ‘the combatant activities
of the military or naval forces.’" Saleh, 580 F.3d at 34 (Garland, J., dis-
senting) (quoting 28 U.S.C. § 2680(j)).
6
The majority seizes upon the plaintiffs’ allegation of a conspiracy
between CACI and military personnel, see ante at 9-10, in support of its
irrelevant supposition that CACI employees were integrated into the mis-
36 AL SHIMARI v. CACI INTERNATIONAL
C.
1.
By relying on the discretionary function exception to the
Federal Tort Claims Act ("FTCA") to identify the pertinent
federal interest, the Supreme Court in Boyle required, at a
minimum, that reviewing courts would examine a contractor’s
allegedly tortious conduct to determine whether it was truly
the product of the government’s exercise of discretion, or
merely an ordinary, unprovoked lapse of care. The majority’s
approach avoids even that minimal analysis by grounding the
asserted federal interest in a different exception to the FTCA
— the combatant activities exception — the umbrella of
which the majority would deploy over government contrac-
tors whenever there are "actions taken in connection with U.S.
military operations overseas." Ante at 8.7
The majority thereby ignores the Supreme Court’s warning
that the FTCA’s exceptions are not equally equipped to define
the contours of an implicit preemption. The Boyle Court made
sion at Abu Ghraib. Whatever the military "mission" was at Abu Ghraib,
it did not include torturing the plaintiffs. In any event, regardless of the
relationship between the soldiers and civilians at the prison, the duties of
the latter were defined exclusively by CACI’s contract with the govern-
ment. We do not know whether governmental authority to amend the con-
tract resided at the Pentagon or elsewhere, but we may be fairly certain
that such authority did not reside at Abu Ghraib. That relatively low-level
military personnel may have violated their orders and encouraged their
civilian counterparts to act outside the bounds of the contract — and set-
tled legal principles — in no way translates to a conclusion that CACI
should summarily escape liability on the ground that the actions imputed
to it were somehow consistent with the government’s interests.
7
By enacting the combatant activities exception to the FTCA, Congress
expressly reserved the sovereign immunity of the United States with
respect to "[a]ny claim arising out of the combatant activities of the mili-
tary or naval forces, or the Coast Guard, during time of war." 28 U.S.C.
§ 2680(j).
AL SHIMARI v. CACI INTERNATIONAL 37
the point through its discussion of Feres v. United States, 340
U.S. 135 (1950), in which it was held that the FTCA does not
waive sovereign immunity with respect to suits brought
against the United States by service members for injuries sus-
tained in the course of their military service.
The Supreme Court declared the Feres doctrine unsuitable
to ascertain whether a significant conflict exists between fed-
eral interests and an asserted state duty, in that it "logically
produces results that are in some respects too broad and in
some respects too narrow." Boyle, 487 U.S. at 510. As an
example of the former, the Court observed that "[s]ince Feres
prohibits all service-related tort claims against the Govern-
ment, a contractor defense that rests upon it should prohibit
all service-related tort claims against the manufacturer," id.,
a result that the Supreme Court deemed inadvisable. See also
Al-Quraishi v. Nakhla, 728 F. Supp. 2d 702, 740 (D. Md.
2010) (declining to adopt rationale of Saleh, based in part on
Supreme Court’s rejection of Feres as basis for preemption,
"because [the Feres defense] does not take into account
whether the Government exercised any discretion or played
any role in the contractor’s alleged tortious acts, as required
by the three part test ultimately articulated in Boyle").
The majority’s invocation of the combatant activities
exception suffers from the same defects. While the Supreme
Court sought to discern an appropriate "limiting principle" to
assist in identifying any significant conflict between state and
federal policies under the discretionary function exception,
Boyle, 487 U.S. at 509, the majority’s version of preemption
under the combatant activities exception is "extraordinarily
broad, . . . result[ing] not in conflict preemption but in field
preemption." Saleh, 580 F.3d at 23 (Garland, J., dissenting)
(internal quotation marks omitted).8
8
Inasmuch as the FTCA contains other potentially applicable exceptions
— for "[a]ny claim arising in a foreign country," and for "[a]ny claim aris-
ing out of assault [and] battery" regardless of where it occurs, 28 U.S.C.
38 AL SHIMARI v. CACI INTERNATIONAL
2.
The majority makes no attempt to conceal the sweeping
breadth of the preemption doctrine it adopts today, confi-
dently maintaining that its approach properly implements
what it characterizes as "the FTCA’s policy of eliminating tort
concepts from the battlefield." Ante at 11 (quoting Saleh, 580
F.3d at 7). The majority vastly overstates its case, however,
because, much more narrowly,
the FTCA’s policy is to eliminate the U.S. govern-
ment’s liability for battlefield torts. That, after all, is
what the FTCA says. But it is not plain that the
FTCA’s policy is to eliminate liability when the
alleged tortfeasor is a contractor rather than a sol-
dier. That, after all, is not what the FTCA says.
Saleh, 580 F.3d at 26 (Garland, J., dissenting). Judge Gar-
land’s eye is keen: the FTCA waives, with certain specific
exceptions, the sovereign immunity constitutionally afforded
the United States, which operates through its various federal
agencies. See 28 U.S.C. §§ 2674, 2675. Government contrac-
tors, however, are expressly excluded from the FTCA’s reach.
See id. § 2671 ("[T]he term ‘Federal agency’ . . . does not
include any contractor with the United States."). The majori-
ty’s description of the FTCA’s policy as the wholesale elimi-
§§ 2680(h), (k) — it is baffling that the majority can correctly identify the
combatant activities exception as the one that decrees the relevant federal
policy. This is particularly so absent any meaningful discussion by the
majority of what constitutes a "combatant activity," whether such activi-
ties may take place domestically, or how they may be distinguished from
an ordinary assault or battery. The difficulties in identifying the relevant
FTCA exception makes it almost impossible to articulate why the one for
combatant activities matters at all. As Judge Garland observes, "the
‘degree of integration’ test . . . seems wholly beside the point" once these
other exceptions are considered. Saleh, 580 F.3d at 23 (Garland, J., dis-
senting). Inevitably, "[o]nce we depart from the limiting principle of
Boyle, it is hard to tell where to draw the line." Id.
AL SHIMARI v. CACI INTERNATIONAL 39
nation of wartime torts, even those committed by private
parties, is therefore inaccurate.
Congress has had no difficulty exempting private parties
from liability in other contexts. Consider, for example, the
statute found at 22 U.S.C. § 2291-4(b), which provides that
the interdiction of an aircraft over a foreign country, con-
ducted pursuant to a presidentially approved program, "shall
not give rise to any civil action . . . against the United States
or its employees or agents." Id. (emphasis added). Congress
has issued no similar exemption here. If anything, its whole-
sale exclusion of government contractors from the limited
protections of the FTCA leads to the opposite conclusion —
that CACI should be held liable for its civil misdeeds.
Further, the FTCA addresses only the immunity of the
United States; it does not shield members of the armed ser-
vices or other government employees from tort suits. Instead,
the Westfall Act provides that sort of protection, so long as
the Attorney General certifies "that the defendant employee
was acting within the scope of his office or employment." 28
U.S.C. § 2679(d)(1). Upon such certification, the employee is
dismissed from the lawsuit and the United States is substi-
tuted as the party defendant, after which the dispute is gov-
erned by the FTCA (as well as its exceptions that retain
sovereign immunity). See Osborn v. Haley, 549 U.S. 225, 230
(2007). But because the Westfall Act incorporates the
FTCA’s definitions, it too excludes government contractors.
Yet the majority deems the plaintiffs’ claims preempted in the
absence of an Attorney General’s certification that would
have been essential were these defendants soldiers or sailors
rather than contractors. The majority thereby grants the defen-
dants unqualified protection that even our citizens in uniform
do not enjoy.
The majority also gleans several specific policy conflicts
that tort suits against contractors would bring about, but these
concerns evaporate upon closer inspection. The majority
40 AL SHIMARI v. CACI INTERNATIONAL
asserts that "[n]ot only would potential tort liability against
. . . contractors affect military costs and efficiencies and con-
tractors’ availability," but "would also present the possibility
that military commanders could be hauled into civilian courts
for the purpose of evaluating and differentiating between mili-
tary and contractor decisions." Ante at 8. But the possibility
of cost-passing is already taken into consideration at an earlier
stage of the Boyle inquiry, that is, in determining whether a
uniquely federal interest "will be directly affected." 487 U.S.
at 507.9
With respect to the majority’s concern that military com-
manders may be called to provide testimony in private tort
suits, wholesale preemption remains unwarranted. Ordinary
mechanisms of civil procedure and other legal doctrines pro-
vide ample safeguards against such interference. Federal Rule
of Civil Procedure 45, for example, compels the district courts
to quash subpoenas calling for privileged matter or that would
cause an undue burden. Moreover, the government remains
free to invoke the state secrets doctrine. All this is to say, "[t]o
deny preemption is not to grant plaintiffs free reign." Saleh,
580 F.3d at 29 (Garland, J., dissenting).10
9
In Richardson v. McKnight, 521 U.S. 399 (1997), the Supreme Court
declined to extend qualified immunity to privately employed prison guards
in an action under 42 U.S.C. § 1983. The Court reasoned that, because
contractors performing service contracts are subject to "competitive mar-
ket pressures," the threat of tort liability encourages them to comply with
contractual obligations to screen, train, and supervise their employees, so
as to promote effectiveness while preventing and deterring contractors and
their employees from taking unlawful actions. See Richardson, 521 U.S.
at 409 ("Competitive pressures mean not only that a firm whose guards are
too aggressive will face damages that raise costs, thereby threatening its
replacement, but also that a firm whose guards are too timid will face
threats of replacement by other firms with records that demonstrate their
ability to do both a safer and a more effective job."). As in the Richardson
litigation, the potential for tort liability and competition between contrac-
tors may well facilitate the government’s selection of contractors who will
perform in a more effective, lawful, and inexpensive manner.
10
Moreover, the majority’s approach brings about the very problems it
seeks to avert. That is, if the courts "ignore the military’s own description
AL SHIMARI v. CACI INTERNATIONAL 41
The majority expresses its fear that lawsuits will "under-
mine the flexibility that military necessity requires in deter-
mining the methods for gathering intelligence." Ante at 8.
Such a concern also proves illusory. The plaintiffs allege that
the contractor personnel acted contrary to military directives
and law. The asserted basis of liability, then, is not one that
would hamper the flexibility the military needs in determining
how to gather intelligence, but rather one that would hold
contractors to account for violating the bounds already set by
the military.
III.
Because the majority erroneously strains to discover a new
form of preemption unjustified by Supreme Court precedent,
and, more fundamentally, because we lack jurisdiction to
announce this new rule, I respectfully dissent.
of its chain of command" by looking to the "degree of integration that, in
fact, existed between the military and [contractor] employees," then they
thereby "invite the wide-ranging judicial inquiry — with affidavits, depo-
sitions, and conflicting testimony — that the court rightly abjures." Saleh,
580 F.3d at 34 (Garland, J., dissenting).