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Decided: June 30, 2014

The Fourth Circuit held that the appellants’ claims of torture and mistreatment against a national defense contractor sufficiently “touch and concern” the territory of the United States (U.S.) so as to “displace the presumption against extraterritorial application of the Alien Tort Statute.”  However, the record contained insufficient facts to determine whether the claims presented nonjusticiable political questions.

The four appellants were all foreign nationals who had been detained at Abu Ghraib after the U.S. invaded Iraq and took control of the prison in 2003.  The U.S. hired civilian contractors from CACI, a U.S. corporation headquartered in Virginia, to interrogate the detainees.  A Department of Defense (DoD) report found widespread abuse and mistreatment of detainees at Abu Ghraib between October and December 2003.  Further investigations by the DoD found that CACI interrogators “directed or participated in some of the abuses, along with a number of military personnel.”  The appellants’ claims against CACI alleged that its employees “instigated, directed, participated in, encouraged, and aided and abetted conduct towards detainees that clearly violated” international and domestic law.

CACI was under contract with the Department of the Interior to provide interrogation management, support, and supervision at the prison.  Appellants alleged that in performing the contract, CACI failed to adequately supervise its employees; ignored reports of abuse; denied any wrongdoing by its employees; and attempted to cover up the abuses.  The appellants filed claims under the Alien Tort Statute (“ATS”), and asserted numerous common law claims, including assault and battery, and negligent hiring and supervision.  The district court dismissed all ATS claims, holding that the court lacked jurisdiction because the conduct giving rise to the claims occurred entirely outside the U.S.  The court also dismissed the common law claims, finding that Iraqi law precluded imposing liability on the appellees for those claims.

CACI challenged the Court’s jurisdiction under the ATS and under the political question doctrine.  The ATS is a jurisdictional statute that gives district courts jurisdiction over civil actions filed by aliens for torts committed in violation of international law.  The U.S. Supreme Court recently addressed whether an ATS claim can reach extraterritorial conduct in Kiobel v. Royal Dutch Petroleum Co, 133 S. Ct. 1659 (2013).  In Kiobel,  several Nigerian nationals were granted asylum in the U.S., and brought claims under the ATS against British, Dutch, and Nigerian corporations.  The plaintiffs alleged that the corporations violated international law by supplying Nigerian forces with food and supplies, thus aiding and abetting the atrocities they committed, including murder and rape.  All alleged tortious conduct occurred in Nigeria, and the only connection to the United States was that the defendant corporations were listed on the New York Stock Exchange.  The U.S. Supreme Court held that the ATS claims were barred, relying primarily on “principles underlying an established canon of statutory interpretation, which raises a presumption against extraterritorial application of acts of Congress.”  Because the statute gave no indication that Congress intended it to have extraterritorial reach, the U.S. Supreme Court found the plaintiffs’ claims concerning conduct occurring outside the United States were barred.

As the Fourth Circuit noted, the U.S. Supreme Court based its holding largely on the fact that all the alleged tortious conduct occurred outside the U.S.  The U.S. Supreme Court in Kiobel explained that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” Id. at 1669. In the present case, the Fourth Circuit emphasized how broad the “touch and concern” standard is, noting that the majority in Kiobel explicitly rejected narrower standards proposed by the concurrence.  The Fourth Circuit stated that the broader standard contemplates that all facts underlying an ATS claim should be examined when determining whether the claim sufficiently “touches and concerns” the U.S., not just the alleged tortious conduct.

In the present case, the appellants’ “claims reflect extensive ‘relevant conduct’ in United States territory, in contrast to the ‘mere presence’ of foreign corporations that was deemed insufficient in Kiobel.”  Here, the allegations involved conduct by U.S. citizens employed by an American corporation that was under contract with the U.S. Government to provide services abroad.  Furthermore, the alleged tortious conduct occurred while performing the contract at a military facility operated by the U.S. Government.  Finally, the appellants’ claims do not solely involve conduct abroad, but also alleged CACI executives in the U.S. ignored reports of abuse and attempted to cover up the misconduct. Thus, the ATS claims sufficiently touch and concern the U.S. and the district court erred in finding that it lacked subject matter jurisdiction. The judgment dismissing the plaintiffs’ ATS claims based on lack of jurisdiction was vacated.

Next, the Court addressed whether the ATS and common law claims were barred by the political question doctrine.  The district court, at an earlier stage in the litigation, found that the appellants’ claims did not present nonjusticiable political questions.  In this appeal, CACI renewed its political question challenge.  In Taylor v. Kellogg Brown & Root Services, Inc., the Fourth Circuit established a test for determining the justiciability of claims brought against government contractors performing services for the military.  658 F.3d 402 (4th Cir. 2011). Under this test, the Court addressed two critical factors: “(1) whether the government contractor was under the ‘plenary’ or ‘direct’ control of the military; and (2) whether national defense interests were ‘closely intertwined’ with military decisions governing the contractor’s conduct, such that a decision on the merits of the claim ‘would require the judiciary to question actual, sensitive judgments made by the military.’”  In the present case, the Court found the factual record was insufficiently developed to answer the questions posed by the Taylor test and remanded the case for the district court to reexamine the issue of justiciability.

Full Opinion

Jennifer Jokerst