Decided: May 11, 2012
The Fourth Circuit Court of Appeals dismissed the appeal in this case for lack of appellate jurisdiction upon rehearing en banc. In the previous panel decision, the Fourth Circuit held that the court had jurisdiction and the district court had erred in permitting the claims to proceed. See the South Carolina Law Review Online summary of the previous panel decision here.
The events at issue in this case are part of the infamous Abu Ghraib prison scandal during the 2003 invasion of Iraq. A number of Iraqis filed suit against CACI International, Inc. (“CACI”) for the involvement of CACI contractors in the alleged torture of prisoners. CACI moved to dismiss the case on the following four grounds: (1) the dispute presented a nonjusticiable political question; (2) the inevitable application of the law of occupied Iraq rendered CACI, as part of the occupying power, immune from suit under Coleman v. Tennessee, 97 U.S. 509 (1878) and Dow v. Johnson, 100 U.S. 158 (1879); (3) the plaintiffs’ claims were preempted by the “combatant activities” exception to the Federal Tort Claims Act (“FTCA”); and (4) the company was entitled to absolute official immunity in accordance with Mangold v. Analytic Services, Inc., 77 F.3d 1442 (4th Cir.1996), because its employees had performed delegated governmental functions.
The majority opinion was written by Judge King, and joined by Chief Judge Traxler, and Judges Motz, Gregory, Duncan, Agee, Davis, Keenan, Wynn, Diaz, and Floyd joined. The majority’s opinion focused on the appellate jurisdiction of interlocutory orders, considering whether this case fit in the small class of decisions that finally determines claims too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is decided. Recounting the relevant precedent about the narrow class of cases where appeal from interlocutory orders are appropriate and referring to the limited jurisdiction of appellate courts, the majority concluded that the court lacked jurisdiction and dismissed the appeals.
Judges Duncan and Wynn each wrote separately to concur with the majority.
Judge Wilkinson dissented and wrote a strongly-worded dissent criticizing the majority for framing the case as an “innocuous jurisdictional disposition.” This dissent asserted the following three points: (1) tort actions are unsuitable in the context of an international theatre of war; (2) contract law is compatible with the separation of powers and the responsibilities allocated the executive branch under Article II of the Constitution; (3) the majority’s application of the collateral order doctrine inflicts damage on American interests overseas. Judge Niemeyer and Judge Shedd joined this opinion.
Judge Niemeyer dissented and wrote critically of the majority for not deciding whether CACI was entitled to certain immunities, and also applying the precedent regarding interlocutory order appeals more broadly to contend that there was appellate jurisdiction in this case. Citing separation of powers doctrine, this dissent also concludes that this Court lacks subject matter jurisdiction. “To entertain the plaintiffs’ claims would impose, for the first time, state tort duties onto an active war zone, raising a broad array of interferences by the judiciary into the military functions textually committed by our Constitution to Congress, the President and the Executive Branch.” Judges Wilkinson and Shedd joined this opinion.