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

B.

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).