Al Shimari v. CACI International Inc., No. 09-1335

Decided: Sept. 21, 2011

Suhail Najim Abdullha Al Shimari was one of many Iraqis detained in the infamous Abu Gahrib prison outside Baghdad. He and three other prisoners brought suit against CACI International, a private contractor tasked by the U.S. military with assisting in translation and interrogation of prisoners, under the Federal Tort Claims Act and the Alien Tort Statute alleging that CACI’s employees subjected the four to various acts of torture while they were imprisoned. The complaint alleged that the contractor acted in concert with the government to torture the prisoners and that the contractor exceeded the Department of Defense interrogation policies and procedures. CACI moved to dismiss alleging, inter alia, federal preemption of the tort claims, political question doctrine, and derivative sovereign immunity. The district court denied this motion and CACI filed an interlocutory appeal.

The Fourth Circuit reversed and remanded with instructions to dismiss. Judge Niemeyer wrote for the majority and following Boyle v. United Technologies Corp., 487 U.S. 5002 (1988) and Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), cert. denied, __ U.S. __, No. 09–1313 (June 27, 2011) found that the state tort claims were preempted by the “uniquely federal interests” they infringed. Boyle used the “discretionary functions” exception to the FTCA but Saleh, a case with strikingly similar facts to the present one, used the “combat activities exception.” 28 U.S.C. § 2680(j). Accordingly, the court found the prisoner’s claims were prempted, holding that CACI was under broad military control and state tort claims were incompatible with the primary functions of war and the decisions made during war.

Judge Niemeyer then wrote separately, stating that had the issues not been mooted by a dismissal under federal preemption he would have also dismissed the matter under the political question doctrine and derivative absolute immunity. First, Niemeyer used Justice Powell’s three considerations of political questions from Goldwater v. Carter, 444 U.S. 996, 998 (1979) (Powell, J., concurring in the judgment) (“(i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?”) (based upon Baker v. Carr, 369 U.S. 186 (1962)) to find that the case was a nonjusticiable political question. Also, Niemeyer would also dismiss the case under derivative absolute immunity, stating that sovereign immunity is designed to protect a government function rather than a government actor necessarily and that the benefits of extending immunity to CACI in this case outweighed potential costs,.

Judge King dissented. First, he noted that the court should not have jurisdiction hear the appeal—citing the reasoning in his dissent from the companion case Al-Quraishi v. L-3 Services, Inc., No. 10-1981 (4th Cir., Sept. 21, 2011). Second, Judge King said that were he to reach the merits of the appeal, he would find the case was not preempted because there was no conflict between the state claims and federal interests. CACI, though working with the government, is a private company in control of its own employees and contracted only for “general services.” Moreover, even if CACI was under the direction of the military for interrogation procedures, CACI allegedly exceeded its authority and utilized torturous techniques against prisoners in violation of military and DOD procedures; only by denying dismissal and allowing discovery to proceed could the court identify whether CACI was acting within the scope of its derivative military authority. Finally, Judge King notes that the FTCA exceptions are designed to eliminate tort liability for government battlefield actions carried out by federal agencies, but that “the term ‘Federal agency’ … does not include any contractor with the United States.” 28 U.S.C. § 2671.

Full Opinion

-C.Alexander Cable

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