Al Shimari v. CACI International, Inc.

Filed: May 14, 2012

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-1335

(1:08-cv-00827-GBL-JFA)

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 TECHNOLOGY,

INCORPORATED,

Defendants - Appellants.

--------------------

KELLOGG BROWN & ROOT SERVICES, INCORPORATED,

Amicus Supporting Appellants,

PROFESSORS OF CIVIL PROCEDURE AND FEDERAL COURTS, Erwin

Chemerinsky, Dean and Distinguished Professor of Law,

University of California, Irvine School of Law, Eric M.

Freedman, Maurice A. Deane Distinguished Professor of

Constitutional Law, Hofstra University School of Law,

Jennifer M. Green, Director, Human Rights Litigation and

International Advocacy Clinic, University of Minnesota Law

School, Jonathan Hafetz Associate Professor of Law, Seton

Hall University School of Law, Alan B. Morrison, Lerner

Family Associate Dean for Public Interest and Public Service

Law, George Washington University School of Law, Stephen I.

Vladeck, Professor of Law and Associate Dean for

Scholarship, American University Washington College of Law;

RETIRED MILITARY OFFICERS; EARTHRIGHTS INTERNATIONAL;

INTERNATIONAL HUMAN RIGHTS ORGANIZATIONS AND EXPERTS, Human

Rights First, The Center for Victims of Torture, The

International Commission of Jurists, The Working Group

Established by the Commission on Human Rights on the Use of

Mercenaries as a Means of Violating Human Rights and

Impeding the Exercise of the Right of Peoples to Self-

Determination, Human Rights Watch, Ilias Bantekas, John

Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller,

Michael Newton, Marco Sassoli, Gary Solis, Scott M.

Sullivan, Dr. Anicee Van Engeland,

Amici Supporting Appellees,

UNITED STATES OF AMERICA,

Amicus Curiae.

No. 10-1891

(8:08-cv-01696-PJM)

WISSAM ABDULLATEFF SA'EED AL-QURAISHI,

Plaintiff - Appellee,

v.

L-3 SERVICES, INCORPORATED,

Defendant – Appellant,

and

ADEL NAKHLA; CACI INTERNATIONAL, INCORPORATED; CACI PREMIER

TECHNOLOGY, INCORPORATED,

Defendants.

--------------------

PROFESSORS OF CIVIL PROCEDURE AND FEDERAL COURTS, Erwin

Chemerinsky, Dean and Distinguished Professor of Law,

University of California, Irvine School of Law, Eric M.

Freedman, Maurice A. Deane Distinguished Professor of

Constitutional Law, Hofstra University School of Law,

Jennifer M. Green, Director, Human Rights Litigation and

2

International Advocacy Clinic, University of Minnesota Law

School, Jonathan Hafetz Associate Professor of Law, Seton

Hall University School of Law, Alan B. Morrison, Lerner

Family Associate Dean for Public Interest and Public Service

Law, George Washington University School of Law, Stephen I.

Vladeck, Professor of Law and Associate Dean for

Scholarship, American University Washington College of Law;

RETIRED MILITARY OFFICERS; EARTHRIGHTS INTERNATIONAL;

INTERNATIONAL HUMAN RIGHTS ORGANIZATIONS AND EXPERTS, Human

Rights First, The Center for Victims of Torture, The

International Commission of Jurists, The Working Group

Established by the Commission on Human Rights on the Use of

Mercenaries as a Means of Violating Human Rights and

Impeding the Exercise of the Right of Peoples to Self-

Determination, Human Rights Watch, Ilias Bantekas, John

Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller,

Michael Newton, Marco Sassoli, Gary Solis, Scott M.

Sullivan, Dr. Anicee Van Engeland,

Amici Supporting Appellee,

UNITED STATES OF AMERICA,

Amicus Curiae.

No. 10-1921

(8:08-cv-01696-PJM)

WISSAM ABDULLATEFF SA'EED AL-QURAISHI,

Plaintiff - Appellee,

v.

ADEL NAKHLA,

Defendant – Appellant,

and

L-3 SERVICES, INCORPORATED; CACI INTERNATIONAL,

INCORPORATED; CACI PREMIER TECHNOLOGY, INCORPORATED,

Defendants.

3

--------------------

PROFESSORS OF CIVIL PROCEDURE AND FEDERAL COURTS, Erwin

Chemerinsky, Dean and Distinguished Professor of Law,

University of California, Irvine School of Law, Eric M.

Freedman, Maurice A. Deane Distinguished Professor of

Constitutional Law, Hofstra University School of Law,

Jennifer M. Green, Director, Human Rights Litigation and

International Advocacy Clinic, University of Minnesota Law

School, Jonathan Hafetz Associate Professor of Law, Seton

Hall University School of Law, Alan B. Morrison, Lerner

Family Associate Dean for Public Interest and Public Service

Law, George Washington University School of Law, Stephen I.

Vladeck, Professor of Law and Associate Dean for

Scholarship, American University Washington College of Law;

RETIRED MILITARY OFFICERS; EARTHRIGHTS INTERNATIONAL;

INTERNATIONAL HUMAN RIGHTS ORGANIZATIONS AND EXPERTS, Human

Rights First, The Center for Victims of Torture, The

International Commission of Jurists, The Working Group

Established by the Commission on Human Rights on the Use of

Mercenaries as a Means of Violating Human Rights and

Impeding the Exercise of the Right of Peoples to Self-

Determination, Human Rights Watch, Ilias Bantekas, John

Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller,

Michael Newton, Marco Sassoli, Gary Solis, Scott M.

Sullivan, Dr. Anicee Van Engeland,

Amici Supporting Appellee,

UNITED STATES OF AMERICA,

Amicus Curiae.

O R D E R

The Court amends its opinion filed May 11, 2012, as

follows:

On page 9, attorney information section, line 17, the

names of “Raymond B. Biagini, Lawrence S. Ebner, MCKENNA LONG &

ALDRIDGE LLP, Washington, D.C., for Kellogg Brown & Root

Services, Incorporated, Amicus Supporting Appellants CACI

4

International, Incorporated, and CACI Premier Technology,

Incorporated” are added.

For the Court – By Direction

/s/ Patricia S. Connor

Clerk

5

ON REHEARING EN BANC

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

TECHNOLOGY, INCORPORATED,

Defendants-Appellants.  No. 09-1335

KELLOGG BROWN & ROOT SERVICES,

INCORPORATED,

Amicus Supporting Appellants,

PROFESSORS OF CIVIL

PROCEDURE AND FEDERAL COURTS,

Erwin Chemerinsky, Dean and

Distinguished Professor of Law,

University of California, Irvine

School of Law,



2 AL SHIMARI v. CACI INTERNATIONAL

Eric M. Freedman, Maurice A. 

Deane Distinguished Professor of

Constitutional Law, Hofstra

University School of Law, Jennifer

M. Green, Director, Human Rights

Litigation and International

Advocacy Clinic, University of

Minnesota Law School, Jonathan

Hafetz Associate Professor of

Law, Seton Hall University School

of Law, Alan B. Morrison, Lerner

Family Associate Dean for Public

Interest and Public Service Law,

George Washington University 

School of Law, Stephen I.

Vladeck, Professor of Law and

Associate Dean for Scholarship,

American University Washington

College of Law; RETIRED MILITARY

OFFICERS; EARTHRIGHTS

INTERNATIONAL; INTERNATIONAL

HUMAN RIGHTS ORGANIZATIONS AND

EXPERTS, Human Rights First, The

Center for Victims of Torture, The

International Commission of

Jurists,



AL SHIMARI v. CACI INTERNATIONAL 3

The Working Group Established 

by the Commission on Human

Rights on the Use of Mercenaries

as a Means of Violating Human

Rights and Impeding the Exercise

of the Right of Peoples to Self-

Determination, Human Rights

Watch, Ilias Bantekas, John

Cerone, Geoffrey Corn, David 

Glazier, Kevin Jon Heller, Michael

Newton, Marco Sassoli, Gary

Solis, Scott M. Sullivan, Dr.

Anicee Van Engeland,

Amici Supporting Appellees,

UNITED STATES OF AMERICA,

Amicus Curiae.



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)

WISSAM ABDULLATEFF SA’EED AL- 

QURAISHI,

Plaintiff-Appellee,

L-3 SERVICES, INCORPORATED,  No. 10-1891

Defendant-Appellant,

and



4 AL SHIMARI v. CACI INTERNATIONAL



ADEL NAKHLA; CACI

INTERNATIONAL, INCORPORATED;

CACI PREMIER TECHNOLOGY,

INCORPORATED,

Defendants.

PROFESSORS OF CIVIL

PROCEDURE AND FEDERAL COURTS,

Erwin Chemerinsky, Dean and

Distinguished Professor of Law,

University of California, Irvine

School of Law, Eric M. Freedman,

Maurice A. Deane Distinguished

Professor of Constitutional Law,

Hofstra University School of Law, 

Jennifer M. Green, Director,

Human Rights Litigation and

International Advocacy Clinic,

University of Minnesota Law

School, Jonathan Hafetz Associate

Professor of Law, Seton Hall

University School of Law, Alan B.

Morrison, Lerner Family Associate

Dean for Public Interest and

Public Service Law, George

Washington University School of

Law, Stephen I. Vladeck,

Professor of Law and Associate

Dean for Scholarship, American

University Washington College of

Law; RETIRED MILITARY OFFICERS;



AL SHIMARI v. CACI INTERNATIONAL 5

EARTHRIGHTS INTERNATIONAL; 

INTERNATIONAL HUMAN RIGHTS

ORGANIZATIONS AND EXPERTS,

Human Rights First, The Center

for Victims of Torture, The

International Commission of

Jurists, The Working Group

Established by the Commission on

Human Rights on the Use of

Mercenaries as a Means of

Violating Human Rights and

Impeding the Exercise of the

Right of Peoples to Self- 

Determination, Human Rights

Watch, Ilias Bantekas, John

Cerone, Geoffrey Corn, David

Glazier, Kevin Jon Heller, Michael

Newton, Marco Sassoli, Gary

Solis, Scott M. Sullivan, Dr.

Anicee Van Engeland,

Amici Supporting Appellee,

UNITED STATES OF AMERICA,

Amicus Curiae.



6 AL SHIMARI v. CACI INTERNATIONAL

WISSAM ABDULLATEFF SA’EED AL- 

QURAISHI,

Plaintiff-Appellee,

v.

ADEL NAKHLA,

Defendant-Appellant,

and

L-3 SERVICES, INCORPORATED; CACI

INTERNATIONAL, INCORPORATED;

CACI PREMIER TECHNOLOGY,

INCORPORATED,

Defendants.  No. 10-1921

PROFESSORS OF CIVIL

PROCEDURE AND FEDERAL COURTS,

Erwin Chemerinsky, Dean and

Distinguished Professor of Law,

University of California, Irvine

School of Law, Eric M. Freedman,

Maurice A. Deane Distinguished

Professor of Constitutional Law,

Hofstra University School of Law,

Jennifer M. Green, Director,

Human Rights Litigation and

International Advocacy Clinic,



AL SHIMARI v. CACI INTERNATIONAL 7

University of Minnesota Law 

School, Jonathan Hafetz Associate

Professor of Law, Seton Hall

University School of Law, Alan B.

Morrison, Lerner Family Associate

Dean for Public Interest and

Public Service Law, George

Washington University School of

Law, Stephen I. Vladeck,

Professor of Law and Associate

Dean for Scholarship, American

University Washington College of

Law; RETIRED MILITARY OFFICERS;

EARTHRIGHTS INTERNATIONAL;

INTERNATIONAL HUMAN RIGHTS

ORGANIZATIONS AND EXPERTS,

Human Rights First, The Center

for Victims of Torture, The 

International Commission of

Jurists, The Working Group

Established by the Commission on

Human Rights on the Use of

Mercenaries as a Means of

Violating Human Rights and

Impeding the Exercise of the

Right of Peoples to Self-

Determination, Human Rights

Watch, Ilias Bantekas, John

Cerone, Geoffrey Corn, David

Glazier, Kevin Jon Heller, Michael

Newton, Marco Sassoli, Gary

Solis, Scott M. Sullivan, Dr.

Anicee Van Engeland,

Amici Supporting Appellee,



8 AL SHIMARI v. CACI INTERNATIONAL

UNITED STATES OF AMERICA, 



Amicus Curiae.



Appeals from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, Senior District Judge.

(8:08-cv-01696-PJM)

Argued: January 27, 2012

Decided: May 11, 2012

Before TRAXLER, Chief Judge, and WILKINSON,

NIEMEYER, MOTZ, KING, GREGORY, SHEDD,

DUNCAN, AGEE, DAVIS, KEENAN, WYNN, DIAZ, and

FLOYD, Circuit Judges.

Appeals dismissed by published opinion. Judge King wrote

the opinion, in which Chief Judge Traxler and Judges Motz,

Gregory, Duncan, Agee, Davis, Keenan, Wynn, Diaz, and

Floyd joined. Judge Duncan wrote a concurring opinion, in

which Judge Agee joined. Judge Wynn wrote a concurring

opinion. Judge Wilkinson wrote a dissenting opinion, in

which Judge Niemeyer and Judge Shedd joined. Judge Nie-

meyer wrote a dissenting opinion, in which Judge Wilkinson

and Judge Shedd joined.

COUNSEL

ARGUED: Joseph William Koegel, Jr., STEPTOE & JOHN-

SON, LLP, Washington, D.C.; Ari S. Zymelman, WILLIAMS

& CONNOLLY, LLP, Washington, D.C., for Appellants.

AL SHIMARI v. CACI INTERNATIONAL 9

Baher Azmy, CENTER FOR CONSTITUTIONAL RIGHTS,

New York, New York; Susan L. Burke, BURKE PLLC,

Washington, D.C., for Appellees. H. Thomas Byron, III,

UNITED STATES DEPARTMENT OF JUSTICE, Washing-

ton, D.C., for Amicus Curiae. ON BRIEF: John F. O’Connor,

STEPTOE & JOHNSON, LLP, Washington, D.C., for Appel-

lants CACI International, Incorporated and CACI Premier

Technology, Incorporated. Eric R. Delinsky, ZUCKERMAN

SPAEDER LLP, Washington, D.C.; F. Whitten Peters, F.

Greg Bowman, WILLIAMS & CONNOLLY, LLP, Washing-

ton, D.C., for Appellants L-3 Services, Incorporated and Adel

Nakhla. Susan M. Sajadi, BURKE PLLC, Washington, D.C.;

Katherine Gallagher, J. Wells Dixon, CENTER FOR CON-

STITUTIONAL RIGHTS, New York, New York; Joseph F.

Rice, MOTLEY RICE LLC, Mt. Pleasant, South Carolina;

Shereef Hadi Akeel, AKEEL & VALENTINE, PC, Troy,

Michigan, for Appellees. Raymond B. Biagini, Lawrence S.

Ebner, MCKENNA LONG & ALDRIDGE LLP, Washington,

D.C., for Kellogg Brown & Root Services, Incorporated, Amicus

Supporting Appellants CACI International, Incorporated, and CACI

Premier Technology, Incorporated. Joshua S. Devore, Agnieszka

M. Fryszman, Maureen E. McOwen, COHEN MILSTEIN SELL-

ERS & TOLL PLLC, Washington, D.C., for Professors of

Civil Procedure and Federal Courts, Amici Supporting Appel-

lees. Jennifer B. Condon, SETON HALL UNIVERSITY

SCHOOL OF LAW, Center for Social Justice, Newark, New

Jersey; John J. Gibbons, Lawrence S. Lustberg, Jonathan M.

Manes, GIBBONS P.C., Newark, New Jersey, for Retired

Military Officers, Amici Supporting Appellees. Gabor Rona,

Melina Milazzo, HUMAN RIGHTS FIRST, New York, New

York; Robert P. LoBue, Ella Campi, Richard Kim, Elizabeth

Shofner, PATTERSON BELKNAP WEBB & TYLER LLP,

New York, New York, for International Human Rights Orga-

nizations and Experts, Amici Supporting Appellees. Marco

Simons, Richard Herz, Marissa Vahlsing, Jonathan Kaufman,

EARTHRIGHTS INTERNATIONAL, Washington, D.C., for

Earthrights International, Amicus Supporting Appellees. Tony

West, Assistant Attorney General, Michael S. Raab, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Amicus Curiae.

10 AL SHIMARI v. CACI INTERNATIONAL

OPINION

KING, Circuit Judge:

Following the 2003 invasion of Iraq, the United States mili-

tary took control of Abu Ghraib prison near Baghdad, using

it to detain criminals, enemies of the provisional government,

and other persons thought to possess information regarding

the anti-Coalition insurgency. The United States contracted

with CACI International, Incorporated (with CACI Premier

Technology, Incorporated, together referred to herein as

"CACI"), and Titan Corporation, now L-3 Services, Incorpo-

rated ("L-3"), to provide civilian employees to assist the mili-

tary in communicating with and interrogating this latter group

of detainees.

On June 30, 2008, a number of Iraqis who had been

detained at Abu Ghraib and elsewhere filed lawsuits against

CACI and L-3 in the Southern District of Ohio and the Dis-

trict of Maryland, alleging that the contractors and certain of

their employees were liable in common law tort and under the

Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, for torturing

and abusing them during their incarceration. Following the

unopposed transfer of the Ohio action to the Eastern District

of Virginia, where CACI is headquartered, Suhail Najim Ab-

dullah Al Shimari and three co-plaintiffs submitted an

Amended Complaint asserting that CACI, through its employ-

ees, agents, and government coconspirators, deprived them of

basic human necessities, beat them and ran electric current

through their bodies, subjected them to sexual abuse and

humiliation, and traumatized them with mock executions and

other sadistic acts. In the operative Second Amended Com-

plaint filed in the companion litigation, seventy-two plaintiffs,

headed by Wissam Abdullateff Sa’eed Al-Quraishi, detailed

similar allegations against L-3 and Adel Nakhla, an L-3

employee residing in Maryland.1

1

CACI and L-3 were each initially named as defendants in both law-

suits. Within a couple of months following commencement of the litiga-

AL SHIMARI v. CACI INTERNATIONAL 11

I.

A.

On September 15, 2008, CACI moved to dismiss the

Amended Complaint filed in the Eastern District of Virginia,

maintaining generally that, among other things: (1) the dis-

pute presented a nonjusticiable political question; (2) the inev-

itable 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. John-

son, 100 U.S. 158 (1879); (3) the plaintiffs’ claims were pre-

empted by the "combatant activities" exception to the Federal

Tort Claims Act (the "FTCA"), see 28 U.S.C. § 2680(j), dis-

cussed in Ibrahim v. Titan Corp., 556 F. Supp. 2d 1 (D.D.C.

2007), and subsequently adopted on appeal, see Saleh v. Titan

Corp., 580 F.3d 1 (D.C. Cir. 2009) (citing Boyle v. United

Tech. Corp., 487 U.S. 500 (1988)); 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 gov-

ernmental functions. With respect to the ATS claims, CACI

proffered several additional arguments, none of them relevant

here in light of the claims’ eventual dismissal. See infra at 12.

L-3’s motion to dismiss the Second Amended Complaint in

the Maryland action, filed on November 26, 2008, and in

which Nakhla joined, was predicated essentially along the

same lines as CACI’s, though it characterized Mangold as

involving the application of derivative sovereign immunity

instead of absolute official immunity. As CACI had previ-

tion, however, CACI was voluntarily dismissed from the Maryland action

and the same was accomplished with respect to L-3 in the Virginia pro-

ceedings. See Fed. R. Civ. P. 41(a)(1)(A)(i). On March 9, 2009, the district

court in Maryland denied without prejudice L-3’s motion to transfer venue

of that case to the Eastern District of Virginia.

12 AL SHIMARI v. CACI INTERNATIONAL

ously done, L-3 invoked the political question doctrine, cited

the Supreme Court’s decisions in Coleman and Dow (the

"law-of-war defense"), and requested (through supplemental

briefing) that the court adopt the combatant activities excep-

tion ultimately applied in Saleh ("Saleh preemption"). L-3

similarly advocated for dismissal of the ATS claims on sub-

stantially the same grounds identified by CACI.2

1.

On March 19, 2009, the district court in Virginia entered a

Memorandum Order dismissing the ATS claims against

CACI, but permitting the common-law tort claims to proceed.

See Al Shimari v. CACI Premier Tech., Inc., 657 F. Supp. 2d

700 (E.D. Va. 2009). In so ruling, the court acknowledged its

considerable reservations that the action implicated a political

question, in that CACI, a private entity, was not the United

States, and only low-level military and governmental person-

nel appeared to have been involved in the alleged mistreat-

ment. See id. at 708-14. The court was similarly doubtful that

the foreseeable application of Iraqi law required dismissal in

light of CACI’s apparent status as an arms-length contractor,

"because even if the law of a foreign jurisdiction were to gov-

ern any of the Plaintiffs’ claims, it would not regulate the con-

duct of the United States, a non-party to this suit between

private parties." Id. at 725.

The dividing line between the bona fide military and its

civilian support personnel also fueled the district court’s

uncertainty that the latter could have engaged in wartime

activities as a "combatant" for purposes of adopting the D.C.

Circuit’s theory of FTCA preemption. See Al Shimari, 657 F.

2

The Maryland district court denied L-3’s dismissal motion as to the

ATS claims. See infra at 15. L-3 maintains on appeal that this ruling was

in error, but it confines its argument to the identical grounds urged in sup-

port of its primary contention that the court below incorrectly declined to

dismiss the state-law tort claims.

AL SHIMARI v. CACI INTERNATIONAL 13

Supp. 2d at 720-21. The court concluded that, in any event,

the plaintiffs’ allegations of torture at the hands of CACI

failed to implicate the uniquely federal interests or irreconcil-

able conflict with state law that animated the Supreme Court’s

decision in Boyle, on which Saleh relied. See id. at 722-25.

Regarding CACI’s claim of derivative immunity under

Mangold, the district court set forth its view that the validity

of such a claim depends on whether its proponent, in commit-

ting the act complained of, was "‘exercising discretion while

acting within the scope of their employment.’" Al Shimari,

657 F. Supp. 2d at 715 (emphasis omitted) (quoting Mangold,

77 F.3d at 1446). Citing "a very limited factual record," the

court expressed its skepticism that CACI had established at

the dismissal stage that its treatment of the plaintiffs at Abu

Ghraib involved the exercise of discretion. Id. The court

stated further that it was "completely bewildered" by the sug-

gestion that it could accept CACI’s representations that the

company had performed within the scope of its agreement

with the government "when the contract is not before the

Court on this motion." Id. at 717. On March 23, 2009, CACI

noted its appeal (No. 09-1335) from the district court’s ruling.

2.

The assertion of Mangold immunity was viewed much the

same way by the district court in Maryland, which, in its

Opinion of July 29, 2010, concluded that, "relying on the

information in the [Second Amended] Complaint, it is clearly

too early to dismiss Defendants." Al-Quraishi v. Nakhla, 728

F. Supp. 2d 702, 735 (D. Md. 2010).3 The district court per-

(Text continued on page 15)

3

In Mangold, we reversed the district court’s denial of immunity to the

defendant government contractor and its employees in a lawsuit brought

by an Air Force officer and his wife for statements the contractor made to

military officials investigating the officer’s alleged misconduct. L-3 and

CACI have each relied heavily on Mangold for the proposition that our

decision in that case likewise entitles them to immunity for the tort claims

14 AL SHIMARI v. CACI INTERNATIONAL

asserted by the plaintiffs here. The Maryland district court, noting the

defendants’ additional reliance on Butters v. Vance International, Inc., 225

F.3d 462 (4th Cir. 2000), characterized the immunity claimed as being in

the nature of derivative sovereign immunity, which the court described as

"protect[ing] agents of the sovereign from liability for carrying out the

sovereign’s will." Al-Quraishi, 728 F. Supp. 2d at 736. The court distin-

guished Mangold, opining that the immunity discussed therein "was based

on a combination of derivative absolute official immunity and witness

immunity, doctrines that differ from derivative sovereign immunity." Al-

Quraishi, 728 F. Supp. 2d at 736.

The distinction drawn by the district court finds support in the text of

Mangold, as expressed by our careful observation that the public policy

justifying the grant of absolute immunity to federal officials exercising

job-related discretion "provide[d] only a partial foundation for protecting"

the defendant contractor in that case. Mangold, 77 F.3d at 1448 (citing

Westfall v. Ervin, 484 U.S. 292, 300 (1988)). The remainder of that foun-

dation was supplied by "the common law privilege to testify with absolute

immunity in courts of law, before grand juries, and before government

investigators." Id. at 1449. According to the Maryland district court, deriv-

ative absolute official immunity (invoked by CACI and more directly

addressed by the Virginia district court in Al Shimari) "ensures that discre-

tionary governmental decision makers are able to efficiently exercise their

discretion in the best interests of the Government without ‘the potentially

debilitating distraction of defending private lawsuits.’" Id. (quoting Man-

gold, 77 F.3d at 1446). While Mangold immunity certainly has the effect

of removing the potential distraction of litigation, it is important to note

the narrow scope of the immunization actually authorized in that case,

which we applied "only insofar as necessary to shield statements and

information, whether truthful or not, given by a government contractor and

its employees in response to queries by government investigators engaged

in an official investigation." 77 F.3d at 1449. In light of our disposition of

these appeals, infra, we express no opinion as to the merits of any immu-

nity asserted by the defendants in general, or as to the pertinence of our

Mangold precedent in particular, but instead leave those matters for the

district courts to consider in the first instance should they arise on remand.

The difference between derivative sovereign immunity and derivative

absolute official immunity (including any offshoots thereof) appears to be

a fine one that may depend on the degree of discretion afforded the con-

tractor by the government, which, at this stage of the litigation, is not a

question capable of final resolution in either proceeding. Were that not the

AL SHIMARI v. CACI INTERNATIONAL 15

ceived no such record deficiencies concerning L-3’s and

Nakhla’s alternative bases for dismissal, however, deeming

the facts as pleaded sufficient to reject outright both defen-

dants’ arguments. The court thus denied the motion to dismiss

with respect to all claims, including those premised on the

ATS. See id. at 724-33, 736-60. From the court’s accompany-

ing Order, L-3 noted its appeal (No. 10-1891) on August 4,

2010, followed two days later by another appeal (No. 10-

1921) noted on behalf of Nakhla.

B.

The appeals in Al-Quraishi were consolidated and argued

in seriatim with the Al Shimari appeal before a panel of this

Court on October 26, 2010. Apart from urging our affirmance

on the merits, the plaintiffs in each matter alternatively main-

tained that we lacked appellate jurisdiction over the district

courts’ non-final orders denying the contractors’ respective

motions to dismiss. On September 21, 2011, we issued opin-

ions in both cases, in which a majority of the panel concluded

that jurisdiction was proper in this Court, and that the district

courts had erred in permitting the claims against the contrac-

tors to proceed. See Al Shimari v. CACI Int’l, Inc., 658 F.3d

413 (4th Cir. 2011); Al-Quraishi v. L-3 Servs., Inc., 657 F.3d

case, the distinction could be crucial, in that fully developed rulings deny-

ing absolute official immunity are immediately appealable, while denials

based on sovereign immunity (or derivative claims thereof) may not be.

See Hous. Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc., 481 F.3d

265, 279 (5th Cir. 2007) (denial of derivative sovereign immunity not

appealable); Alaska v. United States, 64 F.3d 1352, 1356 (9th Cir. 1995)

(denial of sovereign immunity not appealable); Pullman Const. Indus.,

Inc. v. United States, 23 F.3d 1166, 1168 (7th Cir. 1994) (same). But see

In re World Trade Ctr. Disaster Site Litigation, 521 F.3d 169, 191 (2d Cir.

2008) (disagreeing with foregoing authorities). Although the degree to

which Mangold controls the specific assertions of immunity in these cases

is yet to be decided, we will, for simplicity’s sake, continue to refer to L-

3 and CACI as having asserted "Mangold immunity."

16 AL SHIMARI v. CACI INTERNATIONAL

201 (4th Cir. 2011).4 Consistently therewith, we entered sepa-

rate judgments reversing the orders on appeal and remanding

with instructions to dismiss both proceedings.

On November 8, 2011, upon the timely petitions of the

plaintiffs, see Fed. R. App. P. 35(b)-(c), we entered an Order

granting en banc rehearing of all three appeals, thereby vacat-

ing our prior judgments. The appeals were thereafter consoli-

dated for purposes of oral argument, which was conducted

before the en banc Court on January 27, 2012.5 Having fully

considered the briefs and arguments of the parties, together

with the written and oral submissions of the amici curiae per-

mitted leave to participate, we conclude that we lack jurisdic-

tion over these interlocutory appeals, and we therefore

dismiss them.6

II.

A.

Except for the limited categories of interlocutory orders set

forth at 28 U.S.C. § 1292, federal appellate jurisdiction is

4

We released both of our panel opinions on September 21, 2011, fol-

lowing the Supreme Court’s denial of certiorari in Saleh on June 27, 2011.

We had previously, on March 11, 2011, placed these appeals in abeyance

pending resolution of the Saleh certiorari petition.

5

At our invitation, the Department of Justice, on behalf of the United

States, submitted an amicus brief and participated in oral argument.

Therein, the government took the position that we were without jurisdic-

tion to decide these appeals. Just prior to argument, we granted the defen-

dants leave to submit supplemental briefs in response to the government’s

amicus submission, after which the plaintiffs moved to tender their own

supplemental briefs. We grant the plaintiffs’ motions and accept their sup-

plemental replies for consideration.

6

The arguments and contentions before us in these appeals, though not

identically presented or emphasized, are nonetheless substantially similar

enough that we are content to continue the appeals’ consolidation for pur-

poses of decision. Hereinafter, we shall refer to L-3 and Nakhla together

as "L-3," and both of them collectively with CACI as the "appellants."

AL SHIMARI v. CACI INTERNATIONAL 17

reserved for "final decisions of the district courts of the

United States." 28 U.S.C. § 1291. It is undisputed that the

decisions underlying these putative appeals are interlocutory,

at least in the procedural sense, in that no final order or judg-

ment has been entered by either district court. It is also with-

out contest that neither order has been certified appealable by

the issuing court pursuant to 28 U.S.C. § 1292(b), and that

none of that statute’s provisions otherwise apply to confer

jurisdiction on this Court.

Consequently, the only way we may be entitled to review

the orders on appeal is if they are among "that small class [of

decisions] which finally determine claims of right separable

from, and collateral to, rights asserted in the action, 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 adjudicated." Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949). Expounding on

the topic, the Supreme Court has emphasized that an appeal-

able Cohen order must "[1] conclusively determine the dis-

puted question, [2] resolve an important issue completely

separate from the merits of the action, and [3] be effectively

unreviewable on appeal from a final judgment." Will v. Hal-

lock, 546 U.S. 345, 349 (2006) (alterations in original) (inter-

nal quotation marks omitted).

Cohen involved a stockholder’s derivative action for mis-

management and fraud, in which the Supreme Court reviewed

the district court’s threshold decision declining to enforce a

state law requiring plaintiffs in such cases to post security

ensuring payment of attorney fees in the event the defendant

corporation prevailed. Deeming the appeal properly taken, the

Court declared no exception to the jurisdictional prerequisites

of 28 U.S.C. § 1291, but instead described what would subse-

quently be coined the "collateral order doctrine," MacAlister

v. Guterma, 263 F.2d 65, 67 (2d Cir. 1958), as a "practical,

rather than a technical construction" of the statute. Cohen, 337

U.S. at 546.

18 AL SHIMARI v. CACI INTERNATIONAL

The federal courts of appeals have consistently been

charged with keeping a tight rein on the types of orders suit-

able for appeal consistent with Cohen. We are therefore

bound to maintain "a healthy respect for the virtues of the

final-judgment rule." Mohawk Indus., Inc. v. Carpenter, 130

S. Ct. 599, 605 (2009); see also Will, 546 U.S. at 350 ("[W]e

have not mentioned applying the collateral order doctrine

recently without emphasizing its modest scope.").7

The Supreme Court’s concern, as expressed through its

repeated admonitions, is amply justified. The appellate courts

are, by design, of limited jurisdiction; thus, accepting prejudg-

ment appeals as a matter of course would "undermine[ ] effi-

cient judicial administration and encroach[ ] upon the

prerogatives of district court judges, who play a special role

in managing ongoing litigation." Mohawk, 130 S. Ct. at 605

(internal quotation marks omitted). In addition, routine inter-

locutory review would unacceptably subject meritorious law-

suits to "the harassment and cost of a succession of separate

appeals from the various rulings to which a litigation may

give rise, from its initiation to entry of judgment." Firestone

Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)

(internal quotation marks omitted).

Moreover, there is no need to construe Cohen broadly

given the existence of a suitable alternative. The "safety

valve" of discretionary interlocutory review under 28 U.S.C.

7

This "modest scope" is apparent from the short list of orders approved

by the Supreme Court for immediate review under Cohen. See Osborn v.

Haley, 549 U.S. 225, 238-39 (2007) (denial of substitution of United

States under Westfall Act); P.R. Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 506 U.S. 139, 144-45 (1993) (denial to state of claimed Elev-

enth Amendment immunity); Harlow v. Fitzgerald, 457 U.S. 800, 817-18

(1982) (denial of qualified immunity from suit pursuant to 42 U.S.C.

§ 1983); Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982) (denial to presi-

dent of absolute immunity); Helstoski v. Meanor, 442 U.S. 500, 508

(1979) (denial of Speech and Debate Clause immunity); Abney v. United

States, 431 U.S. 651, 660 (1977) (denial of double jeopardy bar).

AL SHIMARI v. CACI INTERNATIONAL 19

§ 1292(b) is frequently a "better vehicle for vindicating [cer-

tain] serious . . . claims than the blunt, categorical instrument

of [a] § 1291 collateral order appeal." Digital Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 883 (1994). Accordingly,

the collateral order doctrine should "never be allowed to swal-

low the general rule that a party is entitled to a single appeal,

to be deferred until final judgment has been entered." Id. at

868 (citation omitted).

B.

Although a properly appealable collateral order under

Cohen must of course satisfy all of the Will requirements, its

hallmark is the encapsulation of a right whose abridgement is

"effectively unreviewable" should appellate review await final

judgment. See Henry v. Lake Charles Am. Press LLC, 566

F.3d 164, 177 (5th Cir. 2009) (describing unreviewability as

"the fundamental characteristic of the collateral order doc-

trine" (citation omitted)). The "critical question" in determin-

ing whether the right at issue is effectively unreviewable in

the normal course "is whether the essence of the claimed right

is a right not to stand trial" — that is, whether it constitutes

an immunity from suit. Van Cauwenberghe v. Biard, 486 U.S.

517, 524 (1988) (internal quotation marks omitted). Absent an

immediate appellate review of the denial of an immunity

claim, the right not to stand trial "would be irretrievably lost."

Id. (internal quotation marks omitted). By contrast, if the right

at issue is one "not to be subject to a binding judgment of the

court" — that is, a defense to liability — then the right can

be vindicated just as readily on appeal from the final judg-

ment, and the collateral order doctrine does not apply. Id. at

527.

In assessing whether the right sought to be protected consti-

tutes a true immunity and not merely a defense, "§ 1291

requires [the court] of appeals to view claims of a ‘right not

to be tried’ with skepticism, if not a jaundiced eye." Digital

Equip., 511 U.S. at 873. As the Supreme Court has cautioned,

20 AL SHIMARI v. CACI INTERNATIONAL

"[o]ne must be careful . . . not to play word games with the

concept of a ‘right not to be tried,’" Midland Asphalt Corp.

v. United States, 489 U.S. 794, 801 (1989), as "virtually every

right that could be enforced appropriately by pretrial dismissal

might loosely be described as conferring a right not to stand

trial," Digital Equip., 511 U.S. at 873. It is within the forego-

ing framework that we review de novo the appealability of the

district courts’ denial orders. See Mitchell v. Forsyth, 472

U.S. 511, 528-30 (1985) (equating denials of qualified immu-

nity to collateral denials of other asserted immunities or of

double jeopardy invocations, and deeming de novo standard

proper based on non-deferential review of latter claims).

III.

In Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir.

2007), the District of Columbia Circuit confronted an

attempted appeal from the district court’s interlocutory order

refusing to dismiss an action brought by Indonesian villagers

alleging serious injuries visited upon them by members of that

nation’s military in the defendants’ private employ. Accord-

ing to the defendants, the dispute presented a nonjusticiable

political question. The court of appeals declined to address the

merits of the issue, noting the absence of "a single case in

which a federal appeals court held that denial of a motion to

dismiss on political question grounds is an immediately

appealable collateral order." Id. at 352.8

8

The D.C. Circuit was presented in Doe with the same argument the

appellants make here: that the denial of a dismissal motion premised on

the separation of powers doctrine is an appealable collateral order under

Cohen because immediate review "is necessary to protect the executive

branch from judicial intrusion into sensitive foreign policy matters" that

could not be remedied on appeal from a final judgment. 473 F.3d at 351.

The Doe court squarely rejected that mistaken notion, however, explaining

that although the Supreme Court has "identif[ied] ‘honoring the separation

of powers’ as a value that could support a party’s interest in avoiding trial,

[the Court has] only d[one] so while discussing cases involving immu-

nity." Id.

AL SHIMARI v. CACI INTERNATIONAL 21

That case yet appears to be lacking, and the appellants do

not contend to the contrary. L-3, however, ventures that an

appellate court may determine whether an action is a political

question or otherwise nonjusticiable when it has proper juris-

diction over a different issue pursuant to Cohen or § 1292(b),

if consideration of the former is "necessary to ensure mean-

ingful review." Swint v. Chambers Cnty. Comm’n, 514 U.S.

35, 51 (1991). We may also exercise so-called "pendent"

appellate jurisdiction in circumstances where the question is

"inextricably intertwined" with another that may be immedi-

ately reviewed. Id.; see Rux v. Republic of Sudan, 461 F.3d

461, 476 (4th Cir. 2006).

L-3’s argument necessarily supposes the existence of an

otherwise valid jurisdictional basis for its appeal. Absent an

independently reviewable issue with which the political ques-

tion doctrine may be inexorably bound, or one that cannot be

reviewed in a meaningful fashion without addressing the justi-

ciability of the underlying dispute, we are without authority

to make any pronouncement on that aspect of the appellants’

defense. We therefore withhold for the moment substantive

comment on the political question doctrine, at least until we

evaluate whether the law-of-war defense, Saleh preemption,

or Mangold immunity provides the jurisdictional green light

for us to proceed.

A.

The appellants characterize their former presence in Iraq as

"occupying forces" (L-3) or "occupying personnel" (CACI)

that are answerable "only to their country’s criminal laws,"

Opening Br. of CACI at 25, and thus "not subject to civil suits

by the occupied," Opening Br. of L-3 at 22-23. In that regard,

the appellants equate their situation with those of the Civil

War soldiers in Coleman v. Tennessee, 97 U.S. 509 (1878),

and Dow v. Johnson, 100 U.S. 158, 166 (1879), who sought

relief from judgments entered against them for their wartime

acts. The defendant in Coleman had been convicted and sen-

22 AL SHIMARI v. CACI INTERNATIONAL

tenced to death by a Tennessee state court for murdering a

civilian, though the same judgment and sentence had been

previously imposed as the result of a United States Army

court-martial. Dow, by contrast, involved a challenge to a

civil judgment entered in Louisiana against a Union general

after forces under his command had seized the plaintiff’s pri-

vate property in furtherance of the war effort.

Neither judgment was permitted to stand. In both cases, the

Supreme Court considered the states of the Confederacy to

have been "the enemy’s country," to whose tribunals the

"[o]fficers and soldiers of the armies of the Union were not

subject." Coleman, 97 U.S. at 515. The Court expressed its

bewilderment that a contrary result could obtain "from the

very nature of war," concluding that "the tribunals of the

enemy must be without jurisdiction to sit in judgment upon

the military conduct of the officers and soldiers of the invad-

ing army. It is difficult to reason upon a proposition so mani-

fest; its correctness is evident upon its bare announcement."

Dow, 100 U.S. at 165.

Some differences between the disputes at bar and those

underlying Coleman and Dow are readily evident. Most

salient is that the civilian employees of CACI and L-3

assigned to Abu Ghraib were not soldiers. The idea that those

employees should nonetheless be treated like full-fledged

members of the military pervades this litigation, though the

concept resonates with more force as to some of the appel-

lants’ other defenses, particularly Saleh preemption and Man-

gold immunity. But cf. Ford v. Surget, 97 U.S. 594, 601-02

(1878) (relieving Mississippi civilian from liability for burn-

ing landowner’s cotton where destruction ordered by Confed-

erate army in face of Union advance and those "commands

would have been undoubtedly enforced by the same means of

coercion as if he had been an enlisted soldier"). The potential

liability of government contractors was front and center in

both Saleh and Mangold, and if the legal principles in either

case (or both) are deemed apposite to the dispute at bar, there

AL SHIMARI v. CACI INTERNATIONAL 23

is little question that the appellants, as contractors themselves,

may avail themselves of them.

Another distinction is that the appellants attempt to invoke

the law-of-war defense exclusively on the assertion that their

alleged wrongs will be evaluated under Iraqi law, and not the

laws of Virginia, Maryland, or another state. If true, that may

or may not be enough to bring Coleman and Dow into play,

inasmuch as the overriding concern in those cases appears to

have been less about the application of the criminal law of

Tennessee or of Louisiana tort law (there being no suggestion

that either differed significantly from the analogous law

applied by the defendants’ states of citizenry), and more about

the jurisdiction of the "foreign" courts. See Coleman, 97 U.S.

at 516 (musing that "there would be something incongruous

and absurd in permitting an officer or soldier of an invading

army to be tried by his enemy"); Dow, 100 U.S. at 163 (iden-

tifying "[t]he important question" for resolution as whether

nation’s military could be held liable "in the local tribunals").

Here, of course, the appellants are being sued on their home

turf, in courts that are indisputably domestic.

Even assuming that the facts before us can be viewed in

such a fashion to permit Coleman and Dow to apply, there is

no indication from the opinions in those cases that the

Supreme Court intended to construe the law-of-war defense as

an immunity from suit, rather than merely an insulation from

liability. See Dow, 100 U.S. at 165 (characterizing dispute as

concerning personal jurisdiction); Lauro Lines s.r.l. v.

Chasser, 490 U.S. 495, 500 (1989) ("[W]e have declined to

hold the collateral order doctrine applicable where a district

court has denied a claim . . . that the suit against the defendant

is not properly before the . . . court because it lacks jurisdic-

tion."). In its subsequent Ford opinion, with judgment having

been entered against the defendant on a jury verdict, the Court

in no way indicated that trial should not have been had.

Indeed, it seems a bit curious to imagine the nineteenth

century Court regarding its decisions in the Civil War cases

24 AL SHIMARI v. CACI INTERNATIONAL

as having durable precedential effect; the appeals afforded an

unusual opportunity for substantive domestic review of what

were, in effect, foreign pronouncements of judgment. But to

the extent that Coleman and Dow possess continued relevance

beyond their immediate context, it is nonetheless clear that the

issues presented in those cases were effectively reviewed and

disposed of on appeal, and, as such, the manner in which the

Supreme Court chose to resolve them fails to compel the con-

clusion that immunity must be accorded all prospective defen-

dants who insist they are similarly situated. The law-of-war

defense thus provides no basis for an interlocutory appeal in

this case.

B.

In a like fashion, Saleh preemption falls squarely on the

side of being a defense to liability and not an immunity from

suit. Immunity, according to the Supreme Court, derives from

"an explicit statutory or constitutional guarantee that trial will

not occur." Midland Asphalt Corp. v. United States, 489 U.S.

794, 801 (1989) (emphasis added).9 There is no contention

that the Supreme Court in Boyle v. United Technologies

Corp., 487 U.S. 500 (1988), from which Saleh preemption is

derived, relied on any such explicit guarantee embodied in

9

The Supreme Court has properly dismissed the mistaken notion that

Midland Asphalt’s "explicit . . . guarantee" requirement is in tension with

the immediate appealability of an order denying qualified immunity, an

inherently equivocal term that appears to connote only an implicit guaran-

tee against the burdens of trial. Any tension can only be characterized as

chimerical, however, in light of qualified immunity’s "good pedigree in

public law," which more than makes up for its implicitness. Digital

Equip., 511 U.S. at 875. The argument that an immunity need not be

explicit in order for jurisdiction to lie under the collateral order doctrine

"only leaves [the proponent of jurisdiction] with the unenviable task of

explaining why other rights that might fairly be said to include an

(implicit) ‘right not to stand trial’ aspect are less in need of protection by

immediate review, or more readily vindicated on appeal from final judg-

ment, than" the right the proponent asserts is an implicit right to be free

from suit. Id. at 875-76.

AL SHIMARI v. CACI INTERNATIONAL 25

statute or in the Constitution. Boyle preemption (and, thus,

Saleh preemption) is, ipso facto, not immunity.

We are not the first court to arrive at this ineluctable con-

clusion. In Martin v. Halliburton, 618 F.3d 476, 487 (5th Cir.

2010), the Fifth Circuit similarly reckoned that "the comba-

tant activities exception is not subject to a sui generis exemp-

tion from the ordinary jurisdictional requirements for denials

of preemption claims."10 Indeed, the Boyle Court itself repeat-

edly framed the preemption it recognized as creating a mere

defense to liability. See, e.g., 487 U.S. at 507 ("The imposi-

tion of liability on Government contractors [in the military

procurement context] will directly affect the terms of Govern-

ment contracts."); id. at 511-12 ("The financial burden of

judgments against the contractors would ultimately be passed

through . . . to the United States itself."); id. at 512 ("[S]tate

law which holds Government contractors liable for design

defects in military equipment does in some circumstances

present a ‘significant conflict’ with federal policy and must be

displaced.").

It is tempting, we suppose, to blur the line between an

eventual frustration of liability and the more immediate right

to avoid suit altogether. One might be persuaded to consider

the words "preemption" and "immunity" as mere labels that

are more or less synonymous with each other, or to presume

that the former can effectively operate as the latter. But

10

See also Rodriguez v. Lockheed Martin Corp., 627 F.3d 1259 (9th Cir.

2010), in which the court addressed its jurisdiction over an interlocutory

appeal premised on the discretionary functions exception to the FTCA.

According to the Rodriguez court, because the right recognized by Boyle

was merely a "defense to judgment" — and not, like qualified immunity,

a "right not to be required to go to trial" — nothing is irretrievably lost

by the lack of an immediate appeal from an adverse pretrial ruling. Rodri-

guez, 627 F.3d at 1266. The Ninth Circuit emphasized that Boyle did not

devise a new species of immunity, but merely recognized that "‘whether

the facts establish the conditions for the [government contractor] defense

is a question for the jury.’" Id. at 1265 (quoting Boyle, 487 U.S. at 514).

26 AL SHIMARI v. CACI INTERNATIONAL

merely repackaging for the sake of convenience the preemp-

tion defense derived from Boyle as "combatant activities

immunity," as our good colleague Judge Niemeyer does in

speaking for the dissenters, post at 97, is patently incorrect.

Though Boyle preemption, like sovereign immunity, may

be invoked to bar state law claims, the encapsulated rights

serve distinct purposes. State law claims are preempted under

Boyle simply because the imposition of liability in such situa-

tions is irreconcilable with uniquely federal interests. The

right conferred through federal preemption, in other words, is

the right not to be bound by a judgment stemming from state

law duties.

In stark contrast, immunity has consistently been adminis-

tered as a protection against the burden of litigation alto-

gether. See Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985).

Further, as the court of appeals explained in Rodriguez v.

Lockheed Martin Corp., 627 F.3d 1259, 1265 (9th Cir. 2010),

"[a]lthough the source of the government contractor defense

[recognized in Boyle] is the United States’ sovereign immu-

nity," the preemption defense is not itself a species thereof.

To the contrary, entitlement to preemption "is only a corollary

financial benefit flowing from the government’s sovereign

immunity." Id. Accordingly, Boyle’s "government contractor

defense does not confer sovereign immunity on contractors,"

and as such, the denial of the defense is not immediately

appealable. Id. (internal quotation marks omitted).

Importantly, the law requires that we assess the appeala-

bility of a potentially qualifying collateral order in a categori-

cal sense, and not on a case-by-case basis.11 Conducting that

11

Whether to recognize an order as collateral is not "an individualized

jurisdictional inquiry," but rather is based "on the entire category to which

a claim belongs." Mohawk, 130 S. Ct. at 605. Consequently, "we do not

now in each individual case engage in ad hoc balancing to decide issues

of appealability." Johnson v. Jones, 515 U.S. 304, 315 (1995). It follows

AL SHIMARI v. CACI INTERNATIONAL 27

assessment here leads to the conclusion that the denial of a

preemption claim stemming from the combatant activities

exception would not necessarily entail significant scrutiny of

sensitive military issues. Fundamentally, there is little intru-

sion because the court’s inquiry focuses on whether the con-

tractor complied with the government’s specifications and

instructions, and not the wisdom or correctness thereof. The

Boyle and Saleh decisions themselves well illustrate the lack

of intrusion that would result from deferring review until after

entry of a final judgment. Boyle, for example, involved an

appeal from a jury verdict for the plaintiff, while "the two

appeals in Saleh reached the D.C. Circuit using the normal

machinery of §§ 1291 and 1292(b)." Martin, 618 F.3d at 488.12

Moreover, the district court in Saleh had conducted exten-

sive discovery "regarding the military’s supervision of the

that "the issue of appealability under § 1291 is to be determined . . . with-

out regard to the chance that the litigation at hand might be speeded, or

a particular justice averted, by a prompt appellate court decision." Digital

Equip., 511 U.S. at 868. Although the presence of a "substantial public

interest," or "some particular value of a high order," is a necessary prereq-

uisite to a collateral order appeal, Will, 546 U.S. at 352-53, the identifica-

tion of such a public interest is not the end of the inquiry. As the Supreme

Court explained in Mohawk, "[t]he crucial question . . . is not whether an

interest is important in the abstract; it is whether deferring review until

final judgment so imperils the interest as to justify the cost of allowing

immediate appeal of the entire class of relevant orders." 130 S. Ct. at 606.

12

It is of no moment that the plaintiffs have alleged a conspiracy among

the contractors, their employees, and certain military personnel. The con-

spiracy allegation does not transform this civil action into a challenge to

the government’s policy or interests, or into an attempt to hold its contrac-

tors liable for acting in accord with governmental decisions. Just as in

Saleh, where some of the plaintiffs alleged a similar conspiracy, "there is

no allegation, and no evidence, that" the "low-level soldiers" alleged to be

acting in conspiracy with contractor personnel "had any control, de jure

or de facto, over the" contractor personnel. 580 F.3d at 20 (Garland, J.,

dissenting). As such, these proceedings — like Saleh — constitute direct

challenges only to "the unlawful and unauthorized actions of private con-

tractors," id., based on the pleadings and record to date.

28 AL SHIMARI v. CACI INTERNATIONAL

contract employees as well as the degree to which such

employees were integrated into the military chain of com-

mand," 580 F.3d at 4, with no ill effects. The Fifth Circuit,

while acknowledging that Boyle preemption is underpinned

by "a respect for the interests of the Government in military

matters," has nonetheless reasoned that those interests can be

safeguarded without resort to interlocutory review. Martin,

618 F.3d at 488. For example, a district court "should take

care to develop and resolve such defenses at an early stage

while avoiding, to the extent possible, any interference with

military prerogatives." Id. Additionally, a trial court should

consider "limiting discovery initially to such defenses" and

"certifying orders denying [the] defense[ ] where the law is

unsettled but, after refinement on appeal, might warrant dis-

missing plaintiffs’ claims." Id.13

When properly conducted, suits against private contractors

pose minimal risk that military personnel will be improperly

haled into court or their depositions taken, because "[w]here

discovery would hamper the military’s mission, district courts

can and must delay it." Saleh, 580 F.3d at 29 (Garland, J., dis-

senting) (citing, inter alia, Watts v. SEC, 482 F.3d 501, 508-09

(D.C. Cir. 2007)). Other procedural and substantive rules,

such as Rule 45 of the Federal Rules of Civil Procedure and

the state secrets doctrine, also adequately safeguard military

interests. See id. at 29 n.18 (Garland, J., dissenting). Accord-

ingly, we decline to recognize denials of Saleh preemption as

a new class of collateral order.14 Insofar as it would be

13

The government’s amicus submission agrees, observing that concerns

over postponing review "can and should be addressed by careful limitation

and close supervision of any necessary discovery by the district courts,

and by the use of existing mechanisms for interlocutory appellate review,

including certification under 28 U.S.C. § 1292(b)." Br. for the United

States as Amicus Curiae at 4.

14

And, indeed, it remains to be seen whether we will adopt the substan-

tive concept of "battlefield preemption" espoused by the Saleh majority.

For the purposes of our decision today, however, we assume but do not

decide that such a defense may be available to the appellants.

AL SHIMARI v. CACI INTERNATIONAL 29

founded on the false premise that immediate appeals are nec-

essary in preemption cases to protect the government’s legiti-

mate military interests, such recognition would reflect an

impermissibly indulgent view of appellate jurisdiction.

C.

Before jurisdiction can be invoked under the collateral

order doctrine, a district court must issue a "fully consum-

mated decision" that constitutes "a complete, formal, and . . .

final" resolution of the issue. Abney v. United States, 431 U.S.

651, 659 (1977). In other words, the court’s ruling must be

"the final word on the subject addressed." Digital Equip., 511

U.S. at 867. If a ruling lacks finality, the threshold require-

ment for collateral order review — that the question in dispute

be definitively resolved — is likewise left wanting. See Will

v. Hallock, 546 U.S. 345, 349 (2006) (confining review of

non-final orders to disputed questions conclusively deter-

mined, which raise important non-merits issues that are effec-

tively unreviewable if not immediately appealed).

A question in dispute cannot be said to have been conclu-

sively resolved if a district court "ma[kes] clear that its deci-

sion [is] a tentative one, . . . and that it might well change its

mind" after further proceedings. Jamison v. Wiley, 14 F.3d

222, 230 (4th Cir. 1994). Disputed questions that arise with

respect to claims of immunity are not the exception to that

ironclad rule. Fundamentally, a court is entitled to have before

it a proper record, sufficiently developed through discovery

proceedings, to accurately assess any claim, including one of

immunity. And even a party whose assertion of immunity ulti-

mately proves worthy must submit to the burdens of litigation

until a court becomes sufficiently informed to rule.

Manifestly, with respect to the appellants’ attempts to

invoke Mangold immunity in their respective actions, suffi-

cient information was lacking. The Maryland and Virginia

district courts each perceived that the validity of such invoca-

30 AL SHIMARI v. CACI INTERNATIONAL

tions depended in significant part on whether the contractor

involved was acting within the scope of its agreement with the

United States. One could hardly begin to answer that question

without resort to any and all contracts between the appellants

and the government pertinent to the claims, defenses, and

related matters below. See, e.g., Al-Quraishi v. Nakhla, 728 F.

Supp. 2d 702, 741 n.11 (D. Md. 2010) (reasoning that con-

tract could show, for example, that "‘federal wartime policy-

making’ was not behind Defendants’ alleged actions," in

which case plaintiffs’ "state law claims [would] not intrude

upon the preempted field"). While other evidence and testi-

mony could also be relevant to ascertain the appellants’ busi-

ness relationship with the government in general, and the

parties’ agreed duties and responsibilities in Iraq and at Abu

Ghraib in particular, the analysis must necessarily begin with

the written contract or contracts. Cf. Harris v. Kellogg Brown

& Root Servs., Inc., 618 F.3d 398, 402 (3d Cir. 2010) (reject-

ing appellate jurisdiction for failure of Will’s "conclusively

determined" requirement, where only limited discovery had

been conducted on combatant activities and political question

defenses).15

In dissent, Judge Niemeyer contends that Behrens v. Pelle-

tier, 516 U.S. 299 (1996), and Ashcroft v. Iqbal, 556 U.S. 662

(2009), each a qualified immunity proceeding, provide for

collateral order jurisdiction of the district courts’ orders deny-

ing Mangold immunity, as illustrated by other of our qualified

immunity cases. See post at 88-89, 90-91 (citing McVey v.

Stacy, 157 F.3d 271 (4th Cir. 1998); Jenkins v. Medford, 119

15

As the Virginia district court pointed out, the contracts "will shed

much light on the responsibilities, limitations and expectations that [the

appellants] were bound to honor as government contractors. In addition,

consideration of [their] course of dealing with the government may reveal

whether deviations from the contract occurred and, if so, whether they

were tolerated or ratified." Al Shimari v. CACI Premier Tech., Inc., 657

F. Supp. 2d 700, 717 (E.D. Va. 2009). Of course, the district court can

receive this evidence under seal, or otherwise, if the circumstances so war-

rant.

AL SHIMARI v. CACI INTERNATIONAL 31

F.3d 1156 (4th Cir. 1997) (en banc); Winfield v. Bass, 106

F.3d 525 (4th Cir. 1997) (en banc)). According to Judge Nie-

meyer, Behrens and Iqbal counsel that Rule 12 denials of

immunity invariably constitute final decisions appealable

under § 1291, and those authorities "clearly establish that

these appeals fit comfortably with the Cohen collateral order

doctrine." Post at 80-81.

It is more accurate to say that orders denying dismissal

motions, insofar as those motions are based on immunities

that are not absolute but conditioned on context, such as qual-

ified immunity in a § 1983 action or the derivative immunities

at issue here, are, in accordance with Behrens and Iqbal,

sometimes immediately appealable. Winfield makes the point:

[W]e possess no jurisdiction over a claim that a

plaintiff has not presented enough evidence to prove

that the plaintiff’s version of the events actually

occurred, but we have jurisdiction over a claim that

there was no violation of clearly established law

accepting the facts as the district court viewed them.

106 F.3d at 530. More generally, we would have jurisdiction

over an appeal like the ones attempted here "if it challenge[d]

the materiality of factual issues." Bazan ex rel. Bazan v.

Hidalgo Cnty., 246 F.3d 481, 490 (5th Cir. 2001). By con-

trast, we lack jurisdiction if such an appeal "challenges the

district court’s genuineness ruling — that genuine issues exist

concerning material facts." Id. Of course, "[w]e always have

jurisdiction to determine whether the facts relevant to our

jurisdiction exist." Wireko v. Reno, 211 F.3d 833, 835 (4th

Cir. 2000) (citation omitted).

In Iqbal, the Supreme Court framed the genuineness-

materiality distinction as one between "fact-based" or "ab-

stract" issues of law, with only the latter supplying a proper

foundation for immediate appeal. 556 U.S. at 674 (quoting

Johnson v. Jones, 515 U.S. 304, 317 (1995)). The Iqbal Court

32 AL SHIMARI v. CACI INTERNATIONAL

concluded that whether a particular constitutional right was

clearly established for qualified immunity purposes presents

an abstract issue of law that permits an appeal at the dismissal

stage. See id. at 674-75. Here, as in Iqbal, there is no "vast

pretrial record" to encumber our decisionmaking, id. at 674,

but the issues before us are more factually entrenched and far

less amenable to meaningful analysis by resort merely to the

plaintiffs’ pleadings. Thus, unlike Iqbal, these appeals encom-

pass fact-based issues of law, with the need for additional

development of the record being among those "matters more

within a district court’s ken." Id.

Hence, insofar as an interlocutory appeal of a denial of

immunity requires resolution of a purely legal question (such

as whether an alleged constitutional violation was of clearly

established law), or an ostensibly fact-bound issue that may

be resolved as a matter of law (such as whether facts that are

undisputed or viewed in a particular light are material to the

immunity calculus), we may consider and rule upon it. See

Behrens, 516 U.S. at 313 (deeming appellate jurisdiction to

have been properly asserted over denial of summary judgment

in § 1983 action where adverse ruling was premised on defen-

dant’s alleged conduct having violated clearly established

law); McVey, 157 F.3d at 276 (approving jurisdiction over

similar legal issue at dismissal stage, where appeal did not

"raise factual questions concerning the defendants’ involve-

ment, which would not be appealable").16

Behrens, then, confers jurisdiction of these appeals only if

the record at the dismissal stage can be construed to present

a pure issue of law. We might discern such an issue if we

16

See also Jenkins, 119 F.3d at 1159-60 (noting existence of appellate

jurisdiction over denial of qualified immunity on motion to dismiss, based

in part on defendant’s assertion that alleged violation did not implicate

clearly established constitutional right); Winfield, 106 F.3d at 530 (recog-

nizing jurisdiction over appeal of denial of qualified immunity insofar as

district court ruled on summary judgment that asserted legal right was

clearly established).

AL SHIMARI v. CACI INTERNATIONAL 33

were of the opinion, as the dissenters evidently are, that per-

sons similarly situated to the appellants are inevitably and

invariably immune from suit premised on any and all conduct

occurring (1) when they are in a war zone, by virtue of (2) a

contract with the government. But not even Saleh, which

receives a ringing endorsement in both dissents, went that far.

The court in Saleh adopted the following rule: "During

wartime, where a private service contractor is integrated into

combatant activities over which the military retains command

authority, a tort claim arising out of the contractor’s engage-

ment in such activities shall be preempted." 580 F. 3d at 9.

The D.C. Circuit therefore conditions preemption on the pres-

ence of a certain level of public/private integration, the con-

duct of activities that may be classified as combat, and the

military’s retained prerogative concerning the decisionmaking

process. Though the Saleh court had the luxury of a complete

record developed through discovery to assist it in pondering

those issues, there has been no discovery in the cases at bar,

and the pleadings provide nothing approaching definitive

answers.17

17

Judge Wilkinson, on behalf of our dissenting friends, assumes as fact

that the contractors were "integrated into wartime combatant activities

under control of the U.S. military," post at 41, notwithstanding that there

is no record evidence to support that assumption, or even what "integra-

tion" means in the context of war. Judge Wilkinson appears to equate inte-

gration with the plaintiffs’ assertion of a conspiracy. See post at 41-42

(citing conspiracy allegations of Amended Complaint in Al Shimari in

support of notion "that the contractors here were acting in collaboration

with U.S. military personnel"); see also supra note 12. But there is simply

no reason to believe that the integration of separate entities into a more or

less unified whole is necessarily the legal equivalent of a collaboration or

conspiracy between those entities.

It is also far from clear that, with respect to the torture and abuses

alleged by the plaintiffs, the appellants were "acting under U.S. military

authority," post at 47, as presumed by Judge Wilkinson. If one felt con-

strained to form a conclusion on the authorization question based on the

available record, then one would be better served to reference the pertinent

34 AL SHIMARI v. CACI INTERNATIONAL

Indeed, the questions that will require proper answers in

order to gauge the appellants’ entitlement to immunity have

yet to be fully ascertained. In Mangold v. Analytic Services,

Inc., supra note 3, the relevant issues on appeal from sum-

mary judgment included whether government personnel were

conducting an "official investigation," and whether the con-

tractors’ statements giving rise to potential liability were

responsive to the investigators’ queries, as opposed to being

extraneous thereto. See Mangold v. Analytic Services, Inc., 77

F.3d at 1449-50. Subsequently, in Butters v. Vance Interna-

tional, Inc., supra note 3, also a summary judgment appeal,

we were constrained to decide whether withholding a job pro-

motion from the plaintiff was a "commercial activity," and

whether that employment decision was made by the defendant

or the foreign government with which it had contracted. See

Butters v. Vance International, Inc., 225 F.3d at 465-67. As

with Mangold and Butters, this case too requires careful anal-

ysis of intrinsically fact-bound issues, which may resemble

any or all of the Saleh considerations, and will almost cer-

tainly entail an exploration of the appellants’ duties under

their contracts with the government and whether they

exceeded the legitimate scope thereof.

The appellants are requesting immunity in a context that

has been heretofore unexplored. These are not disputes in

which facts that might be material to the ultimate issue have

been conclusively identified. Moreover, those facts that may

have been tentatively designated as outcome-determinative

are yet subject to genuine dispute, that is, a reasonable fact-

finder could conclude in favor of either the plaintiffs or the

allegations of the plaintiffs that, for example, "CACI knew that the United

States government has denounced the use of torture and other cruel, inhu-

man, or degrading treatment," Al Shimari Amended Complaint at ¶ 95; "L-

3 permitted [its] translators to ignore — repeatedly — the military’s

instructions to abide by the Geneva Conventions," Al-Quraishi Second

Amended Complaint at ¶ 430; and "L-3 affirmatively hid the misconduct

of its employees from the United States military," id. at ¶ 433.

AL SHIMARI v. CACI INTERNATIONAL 35

defendants. See Metric/Kvaerner Fayetteville v. Fed. Ins. Co.,

403 F.3d 188, 197 (4th Cir. 2005). Because the courts’ immu-

nity rulings below turn on genuineness, we lack jurisdiction

to consider them on an interlocutory appeal. See Winfield, 106

F.3d at 530; Bazan, 246 F.3d at 490.18

Thus, although Mangold immunity confers upon those

within its aegis the right not to stand trial, the appellants have

yet to establish their entitlement to it. See Martin, 618 F.3d at

483 (concluding that claims of immunity must be "substan-

tial," and not "merely colorable"). Because these appeals were

taken before the district courts could reasonably render a deci-

sion on the applicability of Mangold and, perhaps, Butters,

there is no collateral order fulfilling the Will requirements for

appealability pursuant to Cohen, and therefore no jurisdiction

in this Court to review any related aspect of the proceedings

below.19

18

The Supreme Court’s recent decision in Filarsky v. Delia, No. 10-

1018, 2012 WL 1288731 (U.S. Apr. 17, 2012), is not at all to the contrary.

The issue in Filarsky, an appeal by a private lawyer from the denial of

qualified immunity in a § 1983 case, was "whether an individual hired by

the government to do its work is prohibited from seeking such immunity."

Id. at *3. The Supreme Court concluded in the negative, and, consistent

therewith, we have not curtailed the opportunity of the appellants herein

to seek immunity from the plaintiffs’ claims; such immunity may yet be

had. It is also worth noting that the appeal in Filarsky was taken only after

the district court had ruled on summary judgment, see id. at *4, ascertain-

ing that the issues in controversy were strictly legal, i.e., whether qualified

immunity could be extended to private parties, and whether the alleged

constitutional violation was one of clearly established law.

19

The same lack of jurisdiction obtains with respect to L-3’s attempted

appeal of the Maryland district court’s denial of its motion to dismiss the

ATS claims, insofar as that appeal is grounded in any of the derivative

immunities we have discussed. See supra note 2 (observing winnowing of

L-3’s ATS arguments from those presented to the district court). Similar

unsettled questions pertaining to potentially relevant considerations such

as agency, the scope of L-3’s duties under the contracts, and the degree

of integration may bear on whether the asserted immunities are properly

"derived" to defeat the plaintiffs’ claims. Further, we agree with the court

36 AL SHIMARI v. CACI INTERNATIONAL

D.

There being no independent basis for appellate jurisdiction

premised on the law-of-war defense, Saleh preemption, or

Mangold immunity, we are without pendent jurisdiction to

further consider the appellants’ contentions that the plaintiffs’

claims present nonjusticiable political questions. Our rejection

of each of the three proffered bases also precludes the exer-

cise of jurisdiction regardless of whether the appellants’ polit-

ical question defense is inextricably intertwined with any of

them, or whether those bases are similarly interdependent

with one another.

IV.

Pursuant to the foregoing, these consolidated appeals must

be dismissed.

APPEALS DISMISSED

DUNCAN, Circuit Judge, concurring:

I respect the majority’s well-reasoned opinion in this case

and therefore fully concur in its conclusion that we lack juris-

diction to hear this appeal. I write separately only to express

below that although the Maryland plaintiffs have sued under the ATS, that

litigation strategy should not be construed as a judicial admission that the

actions of L-3 were those of the United States, thereby crystallizing access

to a sovereign immunity defense and providing, through the denial of such

immunity, an independent basis for appellate jurisdiction. See Al-Quraishi

v. Nakhla, 728 F. Supp. 2d 702, 751-53 (D. Md. 2010). Our conclusion in

that regard is buttressed by Sosa v. Alvarez-Machain, 542 U.S. 692, 732

& n.20 (2004), in which the Supreme Court carefully left open the ques-

tion of whether ATS liability may be imposed on private actors. Obvi-

ously, if the plaintiffs’ ATS claims may be maintained against L-3 as a

private actor but not as an agent of the government acting within the scope

of its agency, L-3’s status is one more issue that may be appropriate for

the district court to resolve following discovery.

AL SHIMARI v. CACI INTERNATIONAL 37

my hope that the district courts in these consolidated appeals

will give due consideration to the appellant’s immunity and

preemption arguments—especially in light of the Supreme

Court’s recent opinion in Filarsky v. Delia, 132 S. Ct. 1657

(2012), as discussed in Judge Niemeyer’s dissent—which are

far from lacking in force.

Judge Agee has authorized me to indicate that he joins in

this concurrence.

WYNN, Circuit Judge, concurring:

I concur fully in the thoughtful and well-reasoned majority

opinion in these cases. I write separately only to underscore

the prudence of the majority’s restraint, which promotes both

"efficient judicial administration" and "the prerogatives of

district court judges, who play a special role in managing

ongoing litigation." Mohawk Indus., Inc. v. Carpenter, 130 S.

Ct. 599, 605 (2009).

With respect to the latter consideration, I feel compelled to

reiterate the majority’s holding that our limited appellate role

leaves us without jurisdiction at this stage of the litigation to

consider the underlying merits of these appeals. Likewise, as

noted in the majority opinion, "facts that might be material to

the ultimate issue have [not yet] been conclusively identified"

in these cases, which are on appeal from motions to dismiss.

Ante at 34.

Accordingly, today’s opinion offers no guidance to the dis-

trict court on the underlying merits of these matters. To do

otherwise would, in my opinion, potentially usurp the role of

the district court or risk overstepping our own. See United

States v. Fruehauf, 365 U.S. 146, 157 (1961) ("Such [advi-

sory] opinions, such advance expressions of legal judgment

upon issues which remain unfocused because they are not

pressed before the Court with that clear concreteness provided

when a question emerges precisely framed and necessary for

38 AL SHIMARI v. CACI INTERNATIONAL

decision from a clash of adversary argument exploring every

aspect of a multifaceted situation embracing conflicting and

demanding interests, we have consistently refused to give.").

Further, to the extent that my colleagues, in separate opinions,

offer their views on the underlying merits of these cases,

those opinions, "by their nature[,] express views that are not

the law." Arar v. Ashcroft, 585 F.3d 559, 581 n.14 (2d Cir.

2009) (en banc).

WILKINSON, Circuit Judge, dissenting:

The majority in this case tries to present its view as some

sort of innocuous jurisdictional disposition. But the jurisdic-

tional ruling is wrong, and the decision is anything but innoc-

uous. It inflicts significant damage on the separation of

powers, allowing civil tort suits to invade theatres of armed

conflict heretofore the province of those branches of govern-

ment constitutionally charged with safeguarding the nation’s

most vital interests.

I fully join Judge Niemeyer’s fine dissent. My good col-

league has ably addressed many of the failings of today’s

decision, and I see no need to repeat those points here. I write

separately only because the difficulties with these actions are

so legion that no single dissent could hope to cover them all.

The majority and I disagree on much, but there is no dis-

agreement about the Abu Ghraib photographs that have appar-

ently inspired this litigation. See ante at 10. Americans of

good will were sickened by those photographs and the

depraved conduct that would be reprehensible whenever,

wherever, and against whomever it was applied. But acknowl-

edging that fact answers only the question of whether this is

a hard case. It does not answer the question whether it is bad

law whose lasting consequences and abiding damage will

long outlive the distressing photographs that have prompted

the suits herein.

AL SHIMARI v. CACI INTERNATIONAL 39

The actions here are styled as traditional ones and wrapped

in the venerable clothing of the common law. Even on com-

mon law terms, however, they are demonstrably incorrect,

and the impact which tort doctrine will have on military oper-

ations and international relations magnifies the difficulties

immeasurably. I dare say none of us have seen any litigation

quite like this and we default if we accept uncritically or

entertain indefinitely this novel a violation of the most basic

and customary precepts of both common and constitutional

law.

Sadly, the majority’s opinion does precisely this. After

reading its decision, one could be forgiven for thinking that

the issue before us is a simple jurisdictional question arising

out of ordinary tort suits. But these are not routine appeals

that can be quickly dismissed through some rote application

of the collateral order doctrine. This case instead requires us

to decide whether the contractors who assist our military on

the battlefield will be held accountable through tort or con-

tract, and that seemingly sleepy question of common law rem-

edies goes to the heart of our constitutional separation of

powers. Tort suits place the oversight of military operations

in an unelected judiciary, contract law in a politically account-

able executive. And in the absence of some contrary expres-

sion on the part of the Article I legislative branch, the basic

principles of Article II require that contractual, not tort, reme-

dies apply.

The majority emphatically decides this weighty question by

pretending not to decide, as its dismissal of these appeals

gives individual district courts the green light to subject mili-

tary operations to the most serious drawbacks of tort litiga-

tion. But arrogating power to the Third Branch in a contest

over military authority is the wrong call under our Constitu-

tion, and there is no garb for this decision so benign as to

obscure the import of what the majority has done.

We tread this territory at our peril. This decision is contrary

to decades of Supreme Court admonitions warning federal

40 AL SHIMARI v. CACI INTERNATIONAL

courts off interference with international relations. Of course

military contractors should be held accountable, and it is

important that a framework be set in place to accomplish this

task. But instead of establishing that framework, the majority

succumbs to mere drift and in so doing places courts in the

most damaging and least defensible legal landscape possible.

None of us have any idea where exactly all this is headed or

whether the damage inflicted on military operations will be

only marginal or truly severe. At a minimum, however,

today’s decision breaches a line that was respected by our pre-

decessors on courts high and low. I would not cross this

boundary even if the collateral order doctrine could cloak my

steps. With all respect for my fine colleagues, I would remand

these actions to the district court with direction that they be

dismissed.

Part I of my dissenting opinion discusses the utter unsuita-

bility of tort actions such as these in the context of an interna-

tional theatre of war. Part II addresses why contract law is

compatible with the separation of powers and the responsibili-

ties allocated the executive branch under Article II of our

Constitution. Part III explains why the majority’s application

of the collateral order doctrine goes beyond being incorrect to

inflicting damage on American interests overseas.

I.

Tort regimes involve well-known tradeoffs. They may pro-

mote the public interest by compensating innocent victims,

deterring wrongful conduct, and encouraging safety and

accountability. However, tort law may also lead to excessive

risk-averseness on the part of potential defendants. And cau-

tion that may be well-advised in a civilian context may not

translate neatly to a military setting, where the calculus is dif-

ferent, and stakes run high. Risks considered unacceptable in

civilian life are sometimes necessary on a battlefield. In order

to secure high-value intelligence or maintain security, the mil-

itary and its agents must often act quickly and on the basis of

AL SHIMARI v. CACI INTERNATIONAL 41

imperfect knowledge. Requiring consideration of the costs

and consequences of protracted tort litigation introduces a

wholly novel element into military decisionmaking, one that

has never before in our country’s history been deployed so

pervasively in a theatre of armed combat.

The majority acquiesces in judicial control over these sensi-

tive military judgments. It opens the door for the plaintiffs to

conduct broad discovery based on boilerplate complaints

alleging a laundry list of state law claims, including "assault

and battery," "sexual assault and battery," "intentional inflic-

tion of emotional distress," and "negligent hiring and supervi-

sion." By allowing such claims to go forward against

contractors integrated into wartime combatant activities under

control of the U.S. military, the majority raises thorny ques-

tions of whose law should apply, compromises the military’s

ability to utilize contractors in the future, and nudges foreign

policy and war powers away from the political branches of the

federal government and into the hands of federal courts. Sim-

ply put, these state tort claims have no passport that allows

their travel in foreign battlefields, and we have no authority

to issue one.

The complaint makes clear, and the contractors do not dis-

pute, that the contractors here were acting in collaboration

with U.S. military personnel. See, e.g., Al Shimari Amended

Complaint ¶¶ 1, 70, 71, 118, 124, 135. The majority nonethe-

less draws the odd distinction that contractors and the military

may be in a "conspiracy" without somehow being "inte-

grated." See ante at 33 n.17. In addition to the forementioned

paragraphs, the complaint in fact provides ample allegations

of integration. For example, the Al-Quraishi plaintiffs claim

that "L-3 employed all the civilian translators used by the mil-

itary in Iraq," Al-Quraishi Amended Complaint ¶ 78, and that

"Defendants’ acts took place during a period of armed con-

flict, in connection with hostilities" in which the U.S. military

was engaged, id. ¶ 280. Indeed, they allege integration so

complete that civilian interrogators were giving orders to mili-

42 AL SHIMARI v. CACI INTERNATIONAL

tary personnel. Id. ¶ 221. For its contrary view, the majority

departs from the well-established rule that we take the asser-

tions of the complaint on a motion to dismiss as true. While

the whole gravamen of the complaint is military-contractor

cooperation and collaboration, the majority would have us

believe they were more akin to strangers in the night.

The majority also suggests that the contractors may have

departed from military instructions. See ante at 33-34 n.17. If

the contractors did depart from the military’s instructions, that

would allow the government to pursue a breach of contract

claim. See infra Part II. Ironically, the complaint itself speaks

specifically in terms of a failure to "abide[ ] by the contract

terms," Al-Quraishi Amended Complaint ¶ 247, even though

the plaintiffs were in no sense a party to the same. But any

breach of contract does not begin to confer a cause of action

in tort on the part of detainees in a theatre of armed conflict.

There is no indication that Congress or any other law-making

authority, federal or state, wanted foreign nationals in deten-

tion to litigate in tort the relationship between military con-

tractors and the U.S. military when the government itself as

a party to the contract has posited no need to do so.

A.

From this point, the problems with this litigation only mul-

tiply. First, due largely to their inventive nature, these suits

present the difficult question of whose law should govern

them. The majority clears the way for one federal court, sit-

ting in Maryland, to apply Iraqi tort law to the alleged conduct

—in an Iraqi war zone—of a Virginia-headquartered contrac-

tor integrated into wartime combatant activities of the U.S.

military, and for another federal court, sitting in Virginia, to

apply Virginia tort law to a similarly situated contractor for

alleged conduct also occurring in an Iraqi war zone. This is,

to put it mildly, no way to run a railroad.

AL SHIMARI v. CACI INTERNATIONAL 43

1.

The court below in Al-Quraishi v. Nakhla, 728 F. Supp. 2d

702 (D. Md. 2010)—applying the principle of lex loci delicti

—decided that "Iraqi law applies to all of Plaintiffs’ state law

claims." Id. at 763.* This conclusion is highly troublesome.

Most fundamentally, the application of Iraqi law against

agents of the U.S. military constitutes a complete surrender of

sovereignty. The majority allows Iraqi citizens who were

imprisoned in an active theatre of war to bring tort suits

against the occupying authority based on Iraqi causes of

action. Such suits are not only novel, to say the least, but also

in conflict with Supreme Court precedent. See, e.g., Dow v.

Johnson, 100 U.S. 158, 165, 170 (1879) (explaining that

occupying forces are not subject to the laws of the occupied

territory); Coleman v. Tennessee, 97 U.S. 509, 515, 517

(1878) (same).

The majority does not point to a single case in which for-

eign citizens were allowed to sue the occupying authority in

its own courts under foreign causes of action. Likewise, it

offers no support for its assertion that Dow and Coleman do

not apply to military contractors, citing only Ford v. Surget,

97 U.S. 594 (1878), a case implying that law-of-war immu-

nity is not limited to uniformed soldiers. See Ford, 97 U.S. at

*The Al-Quraishi district court also declined to dismiss plaintiffs’ Alien

Tort Statute claims because, in its judgment, "Plaintiffs’ claims constitute

recognized violations of the law of nations, appropriately assertable

against Defendants." 728 F. Supp. 2d at 715. Such claims could be pre-

cluded by Kiobel v. Royal Dutch Petroleum Co. (No. 10-1491), in which

the Supreme Court is expected to decide whether "the Alien Tort Statute

. . . provide[s] subject matter jurisdiction over claims against corpora-

tions," Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir.

2010), cert. granted, 132 S. Ct. 472 (Oct. 17, 2011) (Mem), and

"[w]hether and under what circumstances the Alien Tort Statute . . . allows

courts to recognize a cause of action for violations of the law of nations

occurring within the territory of a sovereign other than the United States,"

___ S. Ct. ___, 2012 WL 687061 (Mar. 5, 2012) (Mem).

44 AL SHIMARI v. CACI INTERNATIONAL

606-08 (holding a civilian immune from civil suit for burning

cotton in support of the Confederate military).

Moreover, the majority is simply wrong in suggesting that

the Dow and Coleman Courts were concerned only with pro-

tecting the occupying authority from foreign tribunals, in con-

trast to foreign laws. See, e.g., Dow, 100 U.S. at 165 ("When,

therefore, our armies marched into . . . the enemy’s country,

their officers and soldiers were not subject to its laws, nor

amenable to its tribunals for their acts. They were subject only

to their own government, and only by its laws, administered

by its authority, could they be called to account." (emphases

added)); id. at 170 ("The question here is, What is the law

which governs an army invading an enemy’s country? It is not

the civil law of the invaded country . . . ." (emphasis added));

Coleman, 97 U.S. at 515 ("Officers and soldiers of the armies

of the Union were not subject during the war to the laws of

the enemy, or amenable to his tribunals for offences commit-

ted by them. They were answerable only to their own govern-

ment, and only by its laws, as enforced by its armies, could

they be punished." (emphases added)); id. at 517 (Following

military occupation, "the municipal laws of [the occupied ter-

ritory] . . . remain in full force so far as the inhabitants of the

country are concerned . . . . This doctrine does not affect, in

any respect, the exclusive character of the jurisdiction of the

military tribunals over the officers and soldiers of the army of

the United States . . . ; for, as already said, they were not sub-

ject to the laws nor amenable to the tribunals of the hostile

country." (emphases added)).

The application of Iraqi tort law to U.S. military contractors

creates practical problems as well. American courts are ill-

suited to decide unsettled questions of Iraqi law. The district

court in Al-Quraishi, for instance, considered "Whether Aid-

ing and Abetting and Conspiracy are Recognized Torts Under

Iraqi Law and Whether Iraqi Law Allows Punitive Damages."

728 F. Supp. 2d at 764. The defendants argued that aiding and

abetting and conspiracy are not cognizable causes of action

AL SHIMARI v. CACI INTERNATIONAL 45

under Iraqi tort law, and that punitive damages are not

allowed as a remedy. Id. The plaintiffs disagreed, and the par-

ties "submitted affidavits from Iraqi law experts in support of

their respective positions." Id. Not surprisingly, considering

the difficulty of ascertaining foreign law, the district court

decided to "defer decision with respect to the content of Iraqi

law." Id.

Given that the district court had trouble deciding such rudi-

mentary questions as whether aiding and abetting and conspir-

acy are even causes of action under Iraqi law, and whether

Iraqi law allows punitive damages, how can we expect the

court to decide the far more challenging issues necessary to

a full-scale trial? For instance, how will it decipher the stan-

dard of care for each cause of action, and determine whether

there was a breach? It can rely on expert testimony, of course,

but Iraqi law experts appear to disagree as to whether these

causes of action are even cognizable. See id. Accordingly, the

majority allows a federal court to go forward with litigation

in which Iraqi citizens sue a U.S. contractor working hand-in-

hand with the U.S. military in a war zone under Iraqi causes

of action that may not even exist.

Under the majority’s decision, military contractors face the

prospect of drawn out lawsuits under the substantive tort law

of every country in which they operate. Such a regime is

unworkable in an era where the military has no choice but to

contract with private corporations. In the present cases, for

example, "a severe shortage" of military intelligence person-

nel "prompt[ed] the U.S. government to contract with private

corporations to provide civilian interrogators and interpret-

ers." J.A. 408. This use of private contractors was deemed

essential to the achievement of U.S. military objectives. Yet,

under the reasoning of the Al-Quraishi district court, which

the majority allows to stand, the contractors should have

paused to consider their potential liability under the substan-

tive tort law of Iraq before agreeing to supply the military

needed personnel under the government contract.

46 AL SHIMARI v. CACI INTERNATIONAL

Of course, corporations generally must weigh their poten-

tial liabilities before agreeing to specific projects. The possi-

bility of defending a lawsuit every time a foreign citizen

claims a violation of foreign tort law might substantially alter

the profitability of government contracts. Thus, before agree-

ing to perform the most critical intelligence functions in sup-

port of the U.S. military, contractors would be forced to

investigate and analyze the substantive tort law of every coun-

try in which its employees might work. This unenviable task

would be even more burdensome when the substantive tort

law varies from jurisdiction to jurisdiction within a country,

as it does in the United States.

In other words, a court that understandably had difficulty

deciding such elementary questions as "Whether Aiding and

Abetting and Conspiracy are Recognized Torts Under Iraqi

Law and Whether Iraqi Law Allows Punitive Damages," Al-

Quraishi, 728 F. Supp. 2d at 764, is implying that contractors,

before playing a critical role in the U.S. military effort in Iraq,

should have analyzed the nuances and permutations of every

Iraqi tort law that might conceivably affect them. By forcing

contractors to undertake a highly complex and deeply uncer-

tain legal analysis before aiding our military operations, par-

ticularly those executed quickly and in countries whose legal

systems are unstable and unfamiliar, the majority jeopardizes

the military’s ability to employ contractors in the future.

Like the courts, military contractors must rely on legal

experts to analyze foreign law. One suspects that most Iraqi

legal experts practice law in Iraq, and indeed, the Al-Quraishi

plaintiffs relied on the declaration of an Iraqi attorney

employed at an Iraqi law firm. Should the defendants have

sought counsel from these Iraqi attorneys before helping the

U.S. military with detention and interrogation functions?

Should other contractors, before agreeing to aid in the U.S.

military invasion of Iraq, have reached out to Iraqi lawyers for

advice on the legal ramifications of such an attack under Iraqi

tort law? Until now, these questions seemed far-fetched, but

AL SHIMARI v. CACI INTERNATIONAL 47

they are newly valid considerations under a regime that sub-

jects lawsuit-averse American corporations to the substantive

tort law of Iraq. My point is not at all to disrespect Iraqi law

or lawyers, but to query the feasibility of extensive and uncer-

tain legal inquiries into any foreign law on the eve or in the

execution of military operations.

2.

Unlike the district court in Al-Quraishi v. Nakhla, 728 F.

Supp. 2d 702 (D. Md. 2010), the district court in Al Shimari

v. CACI Premier Technology, Inc., 657 F. Supp. 2d 700 (E.D.

Va. 2009) deferred any ruling on the choice of law issues. See

id. at 725 n.7. As Judge King noted in his dissent from the

now-vacated panel opinion, the Al Shimari plaintiffs argue

that CACI is "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." Al Shimari v. CACI Int’l, Inc., 658 F.3d 413,

427 (4th Cir. 2011) (King, J., dissenting) (emphasis added).

The plaintiffs, after all, are pressing Virginia causes of action,

and thus if the suit is allowed to go forward, the question of

whether Virginia tort law applies extraterritorially must be

seriously asked. The answer to this question is clear: the

application of Virginia tort law to overseas battlefield conduct

by contractors acting under U.S. military authority is as prob-

lematic as the application of Iraqi law.

First, there is no indication whatsoever that the Common-

wealth of Virginia has any interest in having its tort law

applied abroad in these types of cases. Absent a contrary leg-

islative intent, we assume that legislatures do not want their

tort law to apply extraterritorially. For instance, in EEOC v.

Arabian American Oil Co. ("Aramco"), 499 U.S. 244 (1991),

the Supreme Court held that Title VII of the Civil Rights Act

of 1964 does not apply extraterritorially to regulate the

employment practices of U.S. employers who employ U.S.

citizens abroad. Id. at 246-47. In reaching this conclusion, the

48 AL SHIMARI v. CACI INTERNATIONAL

Court relied on the "longstanding principle" that "‘legislation

of Congress, unless a contrary intent appears, is meant to

apply only within the territorial jurisdiction of the United

States.’" Id. at 248 (citation omitted). Given that "Congress

legislates against the backdrop of the presumption against

extraterritoriality," the Court stated, "unless there is ‘the affir-

mative intention of the Congress clearly expressed,’ we must

presume it ‘is primarily concerned with domestic condi-

tions.’" Id. (citations omitted). Ultimately, the Court con-

cluded that the petitioners had failed to provide sufficient

evidence that Congress intended Title VII to apply abroad. Id.

at 259.

Citing Aramco, the Supreme Court recently reiterated these

principles in Morrison v. National Australia Bank Ltd., 130 S.

Ct. 2869 (2010), where it held that § 10(b) of the Securities

Exchange Act of 1934 does not apply extraterritorially. Id. at

2877-78, 2883. The Court reasoned that "[t]he results of

judicial-speculation-made-law—divining what Congress

would have wanted if it had thought of the situation before the

court—demonstrate the wisdom of the presumption against

extraterritoriality." Id. at 2881. "Rather than guess anew in

each case," the Court continued, "we apply the presumption

in all cases, preserving a stable background against which

Congress can legislate with predictable effects." Id.

Similarly, in Gregory v. Ashcroft, 501 U.S. 452 (1991), the

Court concluded that judges must apply a "plain statement

rule" before upsetting the standard constitutional balance of

federal and state powers. Id. at 460-61. "[I]f Congress intends

to alter the usual constitutional balance," the Court explained,

"it must make its intention to do so unmistakably clear in the

language of the statute." Id. at 460 (internal quotation marks

omitted). "In traditionally sensitive areas," the Court contin-

ued, "the requirement of clear statement assures that the legis-

lature has in fact faced, and intended to bring into issue, the

critical matters involved in the judicial decision." Id. at 461

(internal quotation marks omitted).

AL SHIMARI v. CACI INTERNATIONAL 49

Aramco, Morrison, and Gregory all involved the "long-

standing principle" that "‘legislation of Congress, unless a

contrary intent appears, is meant to apply only within the ter-

ritorial jurisdiction of the United States.’" Aramco, 499 U.S.

at 248 (emphasis added) (citation omitted). However, given

that the Constitution entrusts foreign affairs to the federal

political branches, see U.S. Const. art. I, § 8, cls. 1, 11-15; art.

II, § 2, cls. 1-2, limits state power over foreign affairs, see id.

art. I, § 10, and establishes the supremacy of federal enact-

ments over state law, see id. art. VI, cl. 2, the presumption

against extraterritorial application is even stronger in the con-

text of state tort law.

It defies belief that, notwithstanding the constitutional

entrustment of foreign affairs to the national government, Vir-

ginia silently and impliedly wished to extend the application

of its tort law to events overseas. Or further, that it would do

so in active disregard of Supreme Court pronouncements. For

the Court has repeatedly stated that the federal government

has exclusive power over foreign affairs, and that states have

very little authority in this area. In Chae Chan Ping v. United

States, 130 U.S. 581 (1889), for instance, the Court noted,

"‘[T]he United States is not only a government, but it is a

national government, and the only government in this country

that has the character of nationality. It is invested with power

over all the foreign relations of the country, war, peace and

negotiations and intercourse with other nations; all of which

are forbidden to the state governments.’" Id. at 605 (citation

omitted). The Court reiterated these principles in United

States v. Belmont, 301 U.S. 324 (1937), emphasizing that

"[g]overnmental power over external affairs is not distributed,

but is vested exclusively in the national government." Id. at

330. The Belmont Court further noted that "complete power

over international affairs is in the national government and is

not and cannot be subject to any curtailment or interference

on the part of the several states." Id. at 331. Likewise, in

Hines v. Davidowitz, 312 U.S. 52 (1941), the Court stressed

that "[o]ur system of government is such that . . . the interest

50 AL SHIMARI v. CACI INTERNATIONAL

of the people of the whole nation, imperatively requires that

federal power in the field affecting foreign relations be left

entirely free from local interference." Id. at 63.

Such interference is precisely what we invite by ascribing

to the fifty states the unexpressed wish that their tort law gov-

ern the conduct of military operations abroad. The principle

against such interference holds even where the executive

branch insists that the state law does not interfere with the for-

eign relations power. For instance, in Zschernig v. Miller, 389

U.S. 429 (1968), the Supreme Court struck down an Oregon

probate law as "an intrusion by the State into the field of for-

eign affairs which the Constitution entrusts to the President

and the Congress." Id. at 432. Although "[t]he several States

. . . have traditionally regulated the descent and distribution

of estates," the Court concluded, "those regulations must give

way if they impair the effective exercise of the Nation’s for-

eign policy." Id. at 440. In its brief amicus curiae, the Depart-

ment of Justice stated, "The government does not . . . contend

that the application of the Oregon escheat statute in the cir-

cumstances of this case unduly interferes with the United

States’ conduct of foreign relations." Id. at 434. The Court

disregarded this statement, reasoning that the state action

might cause "disruption or embarrassment" that the Justice

Department failed to appreciate. Id. at 434-35, 441. In concur-

rence, Justice Stewart was even less deferential toward state-

ments from the executive branch:

We deal here with the basic allocation of power

between the States and the Nation. Resolution of so

fundamental a constitutional issue cannot vary from

day to day with the shifting winds at the State

Department. Today, we are told, Oregon’s statute

does not conflict with the national interest. Tomor-

row it may.

Id. at 443 (Stewart, J., concurring).

AL SHIMARI v. CACI INTERNATIONAL 51

3.

So too here, we are hardly required to defer to the Justice

Department’s statements that these cases should go forward.

The Department urges us to

hold that state tort law claims against contractors are

generally preempted if similar claims brought

against the United States would come within the

FTCA’s combatant activities exception and if the

alleged actions of the contractor and its personnel

occurred within the scope of their contractual rela-

tionship with the government, particularly if the con-

duct occurred while contractor personnel were

integrated with the military in its combat-related

activities.

Br. of United States at 2-3.

So far, so good. And one would think that this would be the

end of it. However, the Department carves out an exception

where "a contractor has committed torture as defined in 18

U.S.C. § 2340," the federal anti-torture statute. Id. at 3. The

government then elaborates further on its proposed exception

by implying that state-law tort remedies need not be available

going forward "in light of measures subsequently instituted by

Congress and the Executive Branch, and other developments

in the aftermath of Abu Ghraib." Id. at 23. Like the Justice

Department’s brief in Zschernig, this vaguely explained and

inexplicably derived exception is not entitled to deference by

this court. As the Supreme Court only recently reiterated,

"[T]he separation of powers does not depend on . . . whether

‘the encroached-upon branch approves the encroachment.’"

Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd.,

130 S. Ct. 3138, 3155 (2010) (quoting New York v. United

States, 505 U.S. 144, 182 (1992)).

The government does not point to a single expression of

congressional intent in support of permitting state law tort

52 AL SHIMARI v. CACI INTERNATIONAL

claims to apply overseas based solely on the nature of the

allegations. Instead, it asserts that "in the limited circum-

stances where the state law claim is based on allegations that

the contractor committed torture, as defined in 18 U.S.C.

§ 2340, courts should take into account the strong federal

interests embodied in that federal law." Br. of United States

at 22. In these circumstances, the government suggests, "the

totality of the federal interests is different and does not require

that state-law tort suits against contractors be preempted." Id.

at 3.

It is difficult to see how 18 U.S.C. § 2340—which exhibits

an interest in punishing torture through federal criminal

prosecution—demonstrates any congressional interest in per-

mitting torture-based state tort claims. The federal anti-torture

statute, 18 U.S.C. § 2340 et seq., does not even contain a pri-

vate right of action. And in any event, courts have no license

to create exceptions based on helter-skelter application of fed-

eral criminal statutes, exceptions that permit otherwise pre-

empted state tort claims to go forward.

It is elemental that a federal court cannot simply engraft on

its own a federal criminal law standard onto state tort claims.

The federal judiciary is not permitted to reconfigure the ele-

ments of a state law cause of action. For as the "[Supreme]

Court recognized in [Lingle v. Norge Division of Magic Chef,

Inc., 486 U.S. 399 (1988),] the responsibility for defining the

elements and scope of a state cause of action rests with the

state legislature and state courts." Childers v. Chesapeake &

Potomac Tel. Co., 881 F.2d 1259, 1265 (4th Cir. 1989).

This court requested the government’s submission of an

amicus brief here, and I am appreciative of that submission.

However, the government’s amicus position is at odds with its

own conduct. If the government believes that there have been

contractual or criminal violations on the part of its own con-

tractors, then it should proceed to exercise its unquestioned

contractual and prosecutorial authority to go after the culpable

AL SHIMARI v. CACI INTERNATIONAL 53

party. See infra Part II.B. If it does not believe such violations

have occurred, it should say so. But given the significance of

this case, the exclusive competence of the federal government

in the field of foreign affairs, and the principles articulated in

Aramco, Morrison, and Gregory, neither the federal executive

nor the federal judiciary is entitled to assume that states want

their tort law applied extraterritorially absent a plain statement

to the contrary.

Here there is no indication that the Commonwealth of Vir-

ginia intended to apply its laws of assault, battery, sexual

assault, intentional and negligent infliction of emotional dis-

tress, and negligent hiring and supervision to the battlefield

conduct of contractors integrated into the wartime activities

abroad of the U.S. military. A state’s interest in employing a

tort regime is largely confined to tortious activity within its

own borders or against its own citizens. It is anything but

clear that Virginia has any interest whatsoever in providing

causes of action that allow foreign citizens that have never set

foot in the Commonwealth to drag its own corporations into

costly, protracted lawsuits under who-knows-what legal

authority.

Notwithstanding the presumption against extraterritorial

application of state law and the absence of any indication that

the Commonwealth wants its tort law applied to battlefield

conduct, the Al Shimari plaintiffs ask the district court to

apply Virginia tort law to war-zone conduct that took place

over 6,000 miles away. It is difficult to find a limiting princi-

ple in the plaintiffs’ analysis. Under their approach, Virginia

tort law—and the tort regimes of all fifty states—can be

applied to conduct occurring in every corner of the earth. By

allowing plaintiffs’ causes of action to go forward, the major-

ity lends its imprimatur to the extraterritorial application of

state tort law. Reading the majority’s opinion, I wonder if my

friends will next launch state tort law into outer space.

54 AL SHIMARI v. CACI INTERNATIONAL

4.

Even if the Commonwealth had somehow intended the

extraterritorial application of its tort law, which it has not, the

Supreme Court has made clear that state laws aimed at influ-

encing foreign relations cannot stand when they conflict with

federal objectives. In Crosby v. National Foreign Trade

Council, 530 U.S. 363 (2000), for example, the Court invali-

dated a Massachusetts law that restricted state agencies from

purchasing goods or services from companies doing business

with Burma. Id. at 366. The Court reasoned that the state law

was "an obstacle to the accomplishment of Congress’s full

objectives" under a federal law that directed the President to

develop a comprehensive, multilateral strategy toward Burma.

Id. at 369, 373. By "imposing a different, state system of eco-

nomic pressure against the Burmese political regime," the

Court explained, "the state statute penalizes some private

action that the federal Act (as administered by the President)

may allow, and pulls levers of influence that the federal Act

does not reach." Id. at 376. Consequently, the Court

explained, the Massachusetts law could not stand because it

"compromise[d] the very capacity of the President to speak

for the Nation with one voice in dealing with other govern-

ments." Id. at 381.

Similarly, in American Insurance Ass’n v. Garamendi, 539

U.S. 396 (2003), the Court struck down California’s Holo-

caust Victim Insurance Relief Act, which required any insurer

doing business in the state to disclose information about

Holocaust-era insurance policies. Id. at 401. The Court began

by noting,

There is . . . no question that at some point an exer-

cise of state power that touches on foreign relations

must yield to the National Government’s policy,

given the ‘concern for uniformity in this country’s

dealings with foreign nations’ that animated the

AL SHIMARI v. CACI INTERNATIONAL 55

Constitution’s allocation of the foreign relations

power to the National Government in the first place.

Id. at 413 (citation omitted). In the context of Holocaust-era

insurance claims, explained the Court, "California seeks to

use an iron fist where the President has consistently chosen

kid gloves." Id. at 427. Accordingly, the Court held that the

state statute was preempted because it "interferes with the

National Government’s conduct of foreign relations." Id. at

401.

Under Crosby and Garamendi, states are prohibited from

obstructing the foreign policy objectives of the federal gov-

ernment. There can be no question that there is obstruction

here, where the federal law, speaking with one voice, can

potentially be supplanted by the fifty different voices of vary-

ing state tort regimes, each one potentially working at cross-

purposes with federal aims. Thus, even if Virginia wanted to

extend its tort law to overseas battlefield conduct of military

contractors, it cannot create an "obstacle to the accomplish-

ment of Congress’s full objectives" under federal law.

Crosby, 530 U.S. at 373. Because Congress has emphatically

forbid tort law from governing battlefield conduct, any

attempt to "impos[e] a different, state system" on the battle-

field, id. at 376, would impermissibly "interfere[ ] with the

National Government’s conduct of foreign relations," Gara-

mendi, 539 U.S. at 401.

B.

In contrast to the Commonwealth of Virginia, Congress has

a constitutionally protected role in foreign affairs. See U.S.

Const. art. I, § 8, cls. 1, 11-15. Congress undoubtedly has the

power to allow private parties to pursue tort remedies against

war-zone contractors operating under military authority.

"[T]he Constitution contemplated that the Legislative Branch

have plenary control over . . . regulations, procedures and

remedies related to military discipline . . . ." Chappell v. Wal-

56 AL SHIMARI v. CACI INTERNATIONAL

lace, 462 U.S. 296, 301 (1983). Congress could thus do what

the majority has asserted its own right to do, namely to autho-

rize foreign nationals as private attorneys general to police

contractor conduct in theatres of armed combat. However,

contrary to the plaintiffs’ assertions, there is no indication that

Congress has pursued any such course.

Plaintiffs contend that the Federal Tort Claims Act

("FTCA") permits private parties to bring state law tort suits

against military contractors for wartime conduct. In analyzing

this claim, we must adhere to the longstanding presumption

that Congress does not permit private parties to interfere with

military operations absent explicit statutory authorization.

"[U]nless Congress specifically has provided otherwise,

courts traditionally have been reluctant to intrude upon the

authority of the Executive in military and national security

affairs," Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988),

and this hesitance to transgress constitutional boundaries

applies fully to our interpretation of statutes. See Feres v.

United States, 340 U.S. 135, 146 (1950) (declining to read the

FTCA’s broad waiver of sovereign immunity to allow mili-

tary personnel to sue the government for service-related inju-

ries even though no provision explicitly prevents them from

doing so); see also United States v. Johnson, 481 U.S. 681,

690 (1987) (reaffirming the holding in Feres because "suits

brought by service members against the Government for inju-

ries incurred incident to service . . . are the ‘type[s] of claims

that, if generally permitted, would involve the judiciary in

sensitive military affairs at the expense of military discipline

and effectiveness.’" (emphasis in original) (citation omitted)).

To adopt plaintiffs’ reading of the FTCA would require us

to abandon this tradition of restraint. This broadly phrased

statute does not contain anything close to a congressional

authorization to private parties to hale war-zone military con-

tractors into civilian courts. At most, it provides that "the term

‘Federal agency’ . . . does not include any contractor with the

United States." 28 U.S.C. § 2671. But that broad definitional

AL SHIMARI v. CACI INTERNATIONAL 57

provision does not mean that "contractors . . . are expressly

excluded from the FTCA’s reach" in the area of battlefield

torts. Al Shimari, 658 F.3d at 435 (King, J., dissenting). For

a "general statutory rule usually does not govern unless there

is no more specific rule," Green v. Bock Laundry Mach. Co.,

490 U.S. 504, 524 (1989), but here there is another provision

of the FTCA that speaks more specifically to whether military

contractors are immune from these tort actions.

That provision is the combatant activities exception, which

preserves the government’s sovereign immunity against

"[a]ny claim arising out of the combatant activities of the mil-

itary or naval forces, or the Coast Guard, during time of war."

28 U.S.C. § 2680(j). Multiple textual clues in this exception

indicate that Congress wanted to keep tort law out of the bat-

tlefield regardless of a defendant’s status as a soldier or a con-

tractor.

To start with, the exception bars claims "arising out of"

combatant activities, id., and this phrase is among the broad-

est in the law. "[I]n workmen’s compensation statutes," for

instance, "[t]he arising-out-of test is a familiar one used . . .

to denote any causal connection between the term of employ-

ment and the injury." Saleh v. Titan Corp., 580 F.3d 1, 6

(D.C. Cir. 2009) (emphasis in original) (footnote omitted).

Indeed, the use of this phrase in other FTCA exceptions has

precluded a wide range of actions. For instance, the "sweep-

ing language" of 28 U.S.C. § 2680(h)—which preserves the

government’s sovereign immunity against claims "arising out

of assault [or] battery"—bars not only battery actions, but

negligence claims that "stem from a battery" as well. United

States v. Shearer, 473 U.S. 52, 55 (1985) (plurality opinion);

see also Kosak v. United States, 465 U.S. 848, 854 (1984)

(equating "arising in respect of" in 28 U.S.C. § 2680(c) with

"arising out of" and observing that the former "encompassing

phrase . . . seems to sweep within the exception all injuries

associated in any way with the ‘detention’ of goods"). Con-

gress wanted to forbid tort suits stemming from combatant

58 AL SHIMARI v. CACI INTERNATIONAL

activities, and it chose in "[a]ny claim arising out of" a broad

and widely recognized prohibitory term.

The exception’s use of the term "combatant activities" does

not denote a narrow subset of military operations but a legis-

lative intention to prevent tort from entering the battlefield.

This term encompasses "not only physical violence, but activ-

ities both necessary to and in direct connection with actual

hostilities," Johnson v. United States, 170 F.2d 767, 770 (9th

Cir. 1948), and therefore has a considerable sweep. As the

Supreme Court has noted, this provision "paint[s] with a far

broader brush" than other FTCA exceptions that bar suits aris-

ing out of a subset of harms associated with a particular area.

See Dolan v. U.S. Postal Serv., 546 U.S. 481, 489-90 (2006)

(contrasting the combatant activities exception in § 2680(j)

with § 2680(b), which preserves immunity for "just three

types of harm" associated with mail delivery). Given the

broad language of the combatant activities exception, it is dif-

ficult to believe that Congress wanted the sensibilities of tort

to govern the realities of war.

Indeed, as the District of Columbia Circuit recognized, "the

policy embodied by the combatant activities exception is sim-

ply the elimination of tort from the battlefield." Saleh, 580

F.3d at 7. Congress insulated the theatre of war from tort law

because it "recognize[d] that during wartime encounters no

duty of reasonable care is owed to those against whom force

is directed as a result of authorized military action." Koohi v.

United States, 976 F.2d 1328, 1337 (9th Cir. 1992). In order

to shield "[a]ny claim arising out of the combatant activities

of the military" from tort liability, Congress used some of the

broadest language possible when drafting this exception. It is

not our role to dismember this exclusion’s text in order to

determine when and to what extent torts can arise from com-

batant activities after all.

If this textual evidence were not enough, the Supreme

Court has refused to read the FTCA to authorize tort suits

AL SHIMARI v. CACI INTERNATIONAL 59

against defense contractors, albeit in a slightly different con-

text. See Boyle v. United Techs. Corp., 487 U.S. 500, 511-12

(1988). The contractor in Boyle provided a helicopter for the

military rather than aid in a war-zone, id. at 502, but the logic

is the same. Because the FTCA’s discretionary function

exception precluded suits against the government for design

defects in military equipment, Boyle held that it barred those

actions against defense contractors as well. Id. at 511-12. As

the Court observed, "[i]t makes little sense to insulate the

Government against financial liability . . . when the Govern-

ment produces the equipment itself, but not when it contracts

for the production." Id. at 512.

I recognize that the temptation exists to exalt the brave men

and women who defend our nation in time of war, and then,

in the next breath, to disparage contractors as some sort of

evil twin responsible for wars’ inevitable missteps and

excesses. But the FTCA does not permit such a dichotomy. It

makes even less sense than in Boyle to shield the military

from litigation for the battlefield activities of soldiers but not

contractors. In Boyle, the Supreme Court did not even require

a military-specific exception before insulating military con-

tractors from design-defect liability. Instead, the Court relied

on the discretionary function exception, which is not specific

to military operations but instead broadly precludes claims

"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 Government."

28 U.S.C. § 2680(a); Boyle, 487 U.S. at 511-12. Here, by con-

trast, Congress has provided an exception that singles out

claims "arising out of . . . combatant activities." 28 U.S.C.

§ 2680(j). If the Supreme Court was willing to read the former

general provision to cover military contractors, it would not

hesitate to do the same with the latter more targeted excep-

tion.

In addition to enacting the combatant activities exception,

Congress has indicated its desire to keep tort law off the bat-

60 AL SHIMARI v. CACI INTERNATIONAL

tlefield by subjecting certain military contractors to other

forms of discipline for war-zone conduct. For instance, the

Uniform Code of Military Justice ("UCMJ") applies not only

to members of our military, but to "persons serving with or

accompanying an armed force in the field" in "time of

declared war or a contingency operation" as well. 10 U.S.C.

§ 802(a)(10). The Military Extraterritorial Jurisdiction Act

likewise subjects these contractors to domestic criminal sanc-

tions by punishing anyone who, "while employed by or

accompanying the Armed Forces" abroad, "engages in con-

duct outside the United States that would constitute an offense

punishable by imprisonment for more than 1 year if the con-

duct had been engaged in within the special maritime and ter-

ritorial jurisdiction of the United States." 18 U.S.C.

§ 3261(a)(1). Unlike the application of state tort law, these

procedures for holding contractors accountable were approved

by Congress.

Ignoring the military risks and legal constraints that pro-

hibit extraterritorial application of state tort law, the majority

inserts tort into the battlefield by allowing these suits to go

forward. But before applying state tort law to the combat

activities of contractors working under the U.S. military, we

should make certain that the legislative branch has authorized

us to do so. As the Supreme Court explained in United States

v. Stanley, 483 U.S. 669 (1987), "[T]he insistence . . . with

which the Constitution confers authority over the Army,

Navy, and militia upon the political branches . . . counsels

hesitation in our creation of damages remedies in this field."

Id. at 682. Because I find no evidence that Congress has

recruited private parties—much less foreign nationals—to

police the frontline, I cannot join my colleagues’ decision to

the contrary.

C.

Instead of deferring to Congress’s valid exercise of its con-

stitutionally granted powers, the majority places contractor

AL SHIMARI v. CACI INTERNATIONAL 61

accountability in the hands of the unaccountable. Thanks to

the majority’s efforts, contractors that were previously subject

to the control of the executive have new judicial masters. But

when unelected judges render contestable decisions about

military policy in the course of applying tort law to contrac-

tors, the public will be unable to remove them from their

posts. This flies in the face of our constitutional tradition of

ensuring some popular control over the prosecution of a war.

As the Supreme Court has explained, "[M]atters of warmak-

ing belong in the hands of those who are . . . most politically

accountable for making them." Hamdi v. Rumsfeld, 542 U.S.

507, 531 (2004) (plurality opinion).

No one will contend that tort law, however derived and

defined, is a field excelling in precision. The vagueness and

indeterminacy of these cut-and-paste causes of action will

permit judicial discretion and jury variability to govern this

most sensitive of areas. Courts must henceforth set the stan-

dards of care in matters of wartime captures, detentions, and

interrogations as well as the measure of damages for the

same. Not only that, but methods of interrogation and pro-

curement of intelligence will be at the sufferance of a single

judicial officer, safely ensconced in a secure courtroom, pass-

ing judgment on battlefield conduct thousands of miles away.

Litigants will plead as a matter of course to the breach of

whatever may seem the prevailing standard of care, thus set-

ting in motion logistical problems inherent in transcontinental

tort suits of such novel stripe.

The results of the rising tide of litigation will be both

unpredictable and contradictory, as particular judges and

juries debate and disagree over which methods of detention

and interrogation are permissible. And as detention of the

enemy becomes a more litigious enterprise, the incentives to

shortcut capture with more lethal and unmanned measures

may rise. Whether or not one approves of transplanting the

delicacy and etiquette of the judicial branch into a theatre of

war is not the question. These lawsuits presage a massive

62 AL SHIMARI v. CACI INTERNATIONAL

transfer of authority reserved to the political branches under

Articles I and II of our Constitution into judicial hands, and

to a single trial judge and jury to boot. This is a subject one

would expect Congress to address in great and meticulous

detail, as it has, for example, in the Military Commissions Act

of 2009, Pub. L. 111-84, 123 Stat. 2190, 2574-614, the Mili-

tary Commissions Act of 2006, Pub. L. 109-366, 120 Stat.

2600, and the Detainee Treatment Act of 2005, Pub. L. 109-

148, 119 Stat. 2739, and I respectfully take issue with the

matter-of-fact manner in which the gravity of the step taken

is not even acknowledged by the majority, much less

addressed.

By opening the door to the extraterritorial application of

different state tort regimes, the majority allows for unlimited

variation in the standard of care that is applied to critical com-

batant activities. There is not a widely agreed upon standard

of care for overseas detentions and interrogations, and differ-

ent states will allow different causes of action to go forward

and will apply different standards to them. And even if there

were an agreed upon standard—which there is not—particular

judges and juries would apply that standard inconsistently.

Such a standard would probably bottom out on some version

of reasonableness. But in the context of detention and interro-

gation, what exactly does reasonableness mean? That question

could provoke innumerable answers, and the very vagueness

of tort formulations as to the standard of care means that civil-

ian jurors will be setting the standards for detention and inter-

rogation of military detainees without knowledge of

conditions that obtain in a zone of combat halfway across the

globe. I imply no disrespect of jurors who give of their time

and good sense to our system of justice, but this system will

provide no guidance and no predictability whatsoever because

it will leave the conduct of military functions to the fortuities

of litigious hindsight.

Contractors can be forgiven for not wanting to entrust their

employees to the vagaries and caprice of individual verdicts

AL SHIMARI v. CACI INTERNATIONAL 63

and trials. Add to that the prospect of punitive damages and

other uncertain measures of recovery, and one will introduce

into the detention and interrogation process a degree of risk

aversion that could well result in the gathering of as little vital

intelligence as possible. While some may regard reduced

interrogations with satisfaction, those whose lives and for-

tunes depend upon the acquisition of vital intelligence are not

likely to join any chorus of approval.

The majority’s response is undoubtedly that all these ques-

tions remain to be "ironed out." But such words are small

comfort to those who must make critical decisions in the field

while we sit here in Virginia or Maryland or whatever other

venue is doing the "ironing."

By dismissing these appeals, the majority only drifts and

dawdles, sparing itself the need to come to grips with the

issues, and kicking the can far down the road. The majority

fails to recognize that this is a matter of some urgency. Just

for starters, commanders in the field need actionable battle-

field intelligence in order for soldiers to survive. Few wars

have been or will be prosecuted successfully without intelli-

gence that permits units to plan accurate strikes against enemy

forces, and every bit as importantly, to know when lethal

force is plotted against Americans themselves. Actionable

intelligence has always had both offensive and defensive

value. In other words, intelligence not only assists us in pre-

vailing; it saves American lives.

While there is legitimate debate about how intelligence is

best obtained, a tort suit is probably the very worst forum in

which that issue can or should be resolved. The judges and

juries who review those matters cannot fairly be expected to

possess a background in the utility of different forms of mili-

tary intelligence, and to ask them to decide such sensitive,

delicate, and complicated questions is, in a word, unrealistic.

See Carmichael v. Kellogg, Brown & Root Servs., Inc., 572

F.3d 1271, 1286-87 (11th Cir. 2009) (explaining that military

64 AL SHIMARI v. CACI INTERNATIONAL

intelligence-gathering is traditionally insulated from judicial

review); United States v. Truong Dinh Hung, 629 F.2d 908,

913-14 (4th Cir. 1980) (noting that "the courts are unschooled

in diplomacy and military affairs, a mastery of which would

be essential to passing upon" matters of intelligence). None of

this is to say, of course, that military contractors are without

fault or that abuses should ever go unremedied. It is simply

to make the point that something as mischievous as the place-

ment of tort law in military calculations should be approved

by some body capable of appreciating the consequences of its

action and constitutionally entrusted with the task.

II.

A.

While the present suits may focus upon methods of interro-

gation and conditions of detention, the issue is larger even

than that. In assuming that tort suits are a preferred method of

policing the contractors who assist military operations, the

majority obscures the fact that there exists a more proper rem-

edy in this area. In the absence of some contrary expression

by the Congress, the most basic precepts of separation of

powers require that the alleged abuses of military contractors

must be addressed through the medium of contract, not

through tort. In short, without a clear manifestation of Article

I congressional intent, Article II mandates that contractual,

not tort remedies, be utilized.

It is a truism that government, including the military, must

contract. Few, if any, governmental tasks are undertaken

today without some form of public-private partnership. The

federal government routinely carries out sensitive public func-

tions through private entities, from running background

checks, see United States v. Virginia, 139 F.3d 984, 986 (4th

Cir. 1998), to rehabilitating prisoners, see Corr. Servs. Corp.

v. Malesko, 534 U.S. 61, 63 n.1 (2001), to investigating crimi-

nal activity, see United States v. Warshak, 631 F.3d 266, 320

AL SHIMARI v. CACI INTERNATIONAL 65

(6th Cir. 2010). Assisting with combat operations is no differ-

ent. There is "ample evidence that the military finds the use

of civilian contractors in support roles to be an essential com-

ponent of a successful war-time mission." Lane v. Hallibur-

ton, 529 F.3d 548, 554 (5th Cir. 2008). The Department of

Defense "employs around 170,000 military contractors on a

yearly basis, having more than doubled its use of contracting

services since 2001." Lauren Groth, Transforming Account-

ability: A Proposal for Reconsidering how Human Rights

Obligations Are Applied to Private Military Security Firms,

35 Hastings Int’l & Comp. L. Rev. 29, 38 (2012).

Apart from being necessary, the military’s partnership with

private enterprise has salutary aspects as well. For one thing,

it permits our all-volunteer military to handle troop shortages

in a cost-efficient manner. According to the Army Field Man-

ual, "[r]ecent reductions in military structure, coupled with

high mission requirements and the unlikely prospect of full

mobilization, mean that to reach a minimum of required levels

of support, deployed military forces will often have to be sig-

nificantly augmented with contractor support." U.S. Dep’t of

the Army, Field Manual 3-100.21, Contractors on the Battle-

field Preface (2003). Because of these changes in our military,

"the future battlefield will require ever increasing numbers of

often critically important contractor employees." Id.

These partnerships also allow the military and its contrac-

tors to pool their respective expertise and bring the best of

public service and private industry to bear on the mission at

hand. This reliance on contractor expertise will become only

more necessary as warfare becomes more technologically

demanding. As the Army Field Manual notes, "the increas-

ingly hi-tech nature of our equipment . . . [has] significantly

increased the need to properly integrate contractor support

into all military operations." Id. War is not a static enterprise,

and our military will need every bit of the edge that techno-

logical expertise affords in order to face the hostilities of the

66 AL SHIMARI v. CACI INTERNATIONAL

future. Only the clueless believe future battlefields will not

prominently feature private contractors.

B.

Given these realities, it is illusory to pretend that these suits

are simply ordinary tort actions by one private party against

another. Instead, because contractors regularly assist in "the

type of governmental action that was intended by the Consti-

tution to be left to the political branches directly responsible

. . . to the electoral process," see Gilligan v. Morgan, 413 U.S.

1, 10 (1973), a decent respect for the separation of powers

compels us to consider what sort of remedy would best ensure

the authority of the executive over those with whom it part-

ners in carrying out what are core executive functions. The

answer is obvious. Unlike tort, contract law gives the execu-

tive branch a mechanism of control over those who regularly

assist the military in performing its mission.

For one thing, contract law is a more textually precise field

than tort law, allowing the executive branch to set the stan-

dard of care in the terms of the contract. In contrast to tort

suits in which judges would have to decide what constitutes

a "reasonable bombing," McMahon v. Presidential Airways,

Inc., 502 F.3d 1331, 1350 (11th Cir. 2007), a "prudent inter-

cept," Tiffany v. United States, 931 F.2d 271, 279 (4th Cir.

1991), or a legitimate interrogation method, contract cases

would turn on more definite language in the contract itself—

language that reflected the policy choices of a democratically

accountable branch. Rather than rely on the judicial applica-

tion of some indeterminate standard of reasonable care, the

executive branch could require contractors to abide by well-

established military rules and manuals in the terms of its con-

tractual agreement. For instance, the government could direct

military contractors to "adhere to the standards of conduct

established by the operational or unit commander." See Ibra-

him v. Titan Corp., 556 F. Supp. 2d 1, 6 (D.D.C. 2007) (inter-

nal quotation mark and citation omitted). Focusing on the

AL SHIMARI v. CACI INTERNATIONAL 67

government’s contract rather than theories of tort would also

ensure that important federal interests were not "left to the

vagaries of the laws of the several States," but instead "gov-

erned by uniform rules" in the contracts themselves. Carlson

v. Green, 446 U.S. 14, 23 (1980). The majority, however,

appears to prefer judicial supervision through malleable and

multiple tort standards to executive control through clearer

and more consistent contractual provisions.

Contract law also gives the executive branch, as party to

the contract, the opportunity to pursue a variety of remedies.

In addition to being able to sue a contractor in the event of a

breach, the executive can create more tailored sanctions in the

terms of the contract itself. The government, for example,

could contractually reserve the right to demand that its con-

tractor "remove . . . any employee for reasons of misconduct,"

see Ibrahim, 556 F. Supp. 2d at 7 (omission in original),

thereby allowing it to jettison bad apples without jeopardizing

an entire military operation.

These contractual tools are not the only ones available to

the executive branch. They are augmented by a web of regula-

tions to which contractors subject themselves by partnering

with the military. Army Regulations, for example, permit

commanders to "apprehend and detain contractors for viola-

tions of the law" as well as "restrict or revoke . . . access to

Army facilities or installations for disciplinary infractions."

Army Reg. 715-9 § 4-2(e). What is more, the government can

pursue military sanctions against contractors for battlefield

misconduct under the UCMJ, see 10 U.S.C. § 802(a)(10), as

well as domestic criminal punishments against contractors for

crimes committed abroad, see 18 U.S.C. § 3261(a)(1). Just

within this circuit, in United States v. Passaro, 577 F.3d 207

(4th Cir. 2009), a "paramilitary contractor" was convicted of

federal assault charges arising out of the lethal interrogation

of a detainee in Afghanistan. See id. at 210-12. The govern-

ment has employed its prosecutorial powers to punish rogue

interrogators in the past, and I see little reason why it would

68 AL SHIMARI v. CACI INTERNATIONAL

forswear the use of such sanctions in the future. See Saleh,

580 F.3d at 2 (noting that in the wake of the events at Abu

Ghraib, the executive branch obtained convictions of a num-

ber of soldiers involved and pursued "extensive investiga-

tions" into allegations of abuse by contractors).

When combined with contractual tools, these laws provide

the executive branch with an arsenal of remedies ranging

from removal of a specific contractor to criminal punishment.

The executive requires "a degree of discretion" in the area of

national security, see United States v. Curtiss-Wright Export

Corp., 299 U.S. 304, 320 (1936), and this selection of sanc-

tions gives it an appropriate amount of flexibility. Because the

military and its contractors are tightly bound, litigation in fed-

eral court often subjects both to judicial process. Unlike tort

suits instigated at the behest of private parties, contractual and

criminal enforcement permits the executive to protect military

commanders and contractors from being "unnecessarily and

dangerously distracted by litigation half a world away" and to

prevent "discovery into military operations" from "intrud[ing]

on the sensitive secrets of national defense." See Hamdi, 542

U.S. at 532 (plurality opinion).

In sum, it is silly to think that without tort suits, military

contractors will simply be wandering around war zones uns-

upervised. What the chain of command does for military offi-

cers, contract law does for military contractors. As the Army

Field Manual notes, "The military chain of command exer-

cises management control through the contract." U.S. Dep’t of

the Army, Field Manual, supra, § 1-25. "[P]roper military

oversight of contractors is imperative" to integrating these pri-

vate actors into military operations, id. § 1-23, and contract

law achieves this goal in ways that tort law cannot. Even

though contractors are not formally "part of the operational

chain of command," they are "managed in accordance with

the terms and conditions of their contract" through the Con-

tracting Officer Representative, who "serves as the opera-

tional commander’s primary oversight." Army Reg. 715-9

AL SHIMARI v. CACI INTERNATIONAL 69

§ 4-1(c)-(d). Thus, contract law ensures that these contractors

are "subject to military direction, even if not subject to normal

military discipline." Saleh, 580 F.3d at 7. In other words, "the

Government’s broad authority . . . in managing its operations

does not turn on" whether "contract employees" or "civil ser-

vants" are involved. NASA v. Nelson, 131 S. Ct. 746, 758-59

(2011) (citation omitted).

Tort law, however, conflicts with rather than complements

these contractual mechanisms of control by "interfer[ing] with

the federal government’s authority to punish and deter mis-

conduct by its own contractors." See Saleh, 580 F.3d at 8. The

majority’s allocation of common law remedies is paradoxi-

cally not just a matter of common law. It is a decision con-

cerning which branch of government will control the

contractors that assist our soldiers on the battlefield. Whereas

contract and criminal law places contractor accountability

where Article II places it—in the hands of the executive—tort

law places it in the hands of the judiciary. But the executive

branch—and not the judicial—is responsible for overseeing a

war effort under the Constitution. Whereas the President is

required as Commander in Chief "to take responsible and con-

tinuing action to superintend the military," Loving v. United

States, 517 U.S. 748, 772 (1996), we as judges are "not given

the task of running the Army." Orloff v. Willoughby, 345 U.S.

83, 93 (1953).

It is disquieting to say the least that the majority now

believes it can displace, or to use a euphemism, "supplement"

executive control of military contractors with judicial over-

sight. The costs of that decision will be severe. For one thing,

it bleeds together two areas of law—tort and contract—that

are conceptually distinct. No one disputes that those contrac-

tors who actually engage in torture breach those provisions of

their contracts that require them to act in accordance with fed-

eral law. But a "[b]reach of contract is not a tort," XCO Int’l

Inc. v. Pac. Scientific Co., 369 F.3d 998, 1002 (7th Cir. 2004),

and it only muddies the law to permit private litigants to bring

70 AL SHIMARI v. CACI INTERNATIONAL

tort suits against contractors just because the latter allegedly

violated an agreement with the executive. "[T]he main cur-

rents of tort law run in different directions from those of con-

tract," E. River S.S. Corp. v. Transamerica Delaval, Inc., 476

U.S. 858, 873 n.8 (1986), and it does little good to attempt to

channel them together.

C.

At bottom, the majority’s facilitation of tort remedies chills

the willingness of both military contractors and the govern-

ment to contract. I have previously discussed the chilling

effect today’s decision will have on private contractors, see

supra Part I, but I fear that the majority’s efforts will discour-

age the government from partnering with private industry as

well. Congress might well think the defense budget large

enough without courts adding the prospect of uncertain tort

liabilities. By increasing through prospective tort suits the

costs of employing contractors on the battlefield, the majority

interferes with the executive branch’s capacity to carry out its

constitutional duties. To the Defense Department in an era of

cost consciousness, the threat of tort liability can chill both

the government’s ability and willingness to contract by raising

the price of partnering with private industry, and that is partic-

ularly true here. Boyle noted, in fact, that burdens of "tort

suits" against military contractors "would ultimately be

passed through . . . to the United States itself, since defense

contractors will predictably raise their prices to cover . . . con-

tingent liability." 487 U.S. at 511-12. So long as the executive

branch could control contractual performance through con-

tract law, it had little reason to eschew valuable partnerships

with private enterprise. But now that third parties can pull

contractors and their military supervisors into protracted legal

battles, we can expect a distortion of contractor and military

decisionmaking to account for that contingency. As the Saleh

court explained, "Allowance of such suits will surely hamper

military flexibility and cost-effectiveness, as contractors may

prove reluctant to expose their employees to litigation-prone

AL SHIMARI v. CACI INTERNATIONAL 71

combat situations." 580 F.3d at 8. It will no longer be enough

that military contractors meet their contractual commitments

to a T, for there exists no assurance that the standard of care

embraced in subsequent tort suits will incorporate by refer-

ence or otherwise the criterion of meeting one’s contractual

obligations.

"[T]he separation-of-powers doctrine requires that a branch

not impair another in the performance of its constitutional

duties." Loving, 517 U.S. at 757. Today’s decision does pre-

cisely that. "[T]he Government’s practical capacity to make

contracts" is "the essence of sovereignty itself." United States

v. Winstar, 518 U.S. 839, 884 (1996) (internal quotation mark

and citation omitted). By making the contract the essence of

the government-contractor partnership, we diminish the

capacity of our adversaries to erode this critical aspect of our

national sovereignty through litigation. Conversely, by elevat-

ing tort as a mechanism of weakening this essential partner-

ship, we give those who do not wish us well a means of

putting their ill will to use. I can understand that our enemies

would seek to use our own laws as a weapon against us, but

I cannot understand why we should sanction suits, the unin-

tended effect of which is to equip them.

III.

Rather than engage in a frank discussion of the conse-

quences that will ensue from its ruling, the majority seeks a

cubby hole in the collateral order doctrine. This argument

misses the mark—for many of the same reasons that tort law

does not belong on the battlefield, this case does not belong

back before the district court. We are engaged in a lot of

semantic word games here, losing completely the forest for

the trees. The collateral order doctrine is not a matter of legal-

istic banter, but of letting an appellate court confront in a

timely manner issues presenting grave, far-reaching conse-

quences. Before us is a deeply unfortunate instance of litiga-

tion creep where doctrines that postpone appeals in a

72 AL SHIMARI v. CACI INTERNATIONAL

domestic context are transposed to an international setting

without recognition of the gravity of such a shift of gears.

The collateral order doctrine is premised on the eminently

reasonable conclusion that immunities from suit should be

recognized sooner rather than later, because the "rigors of

trial" can often be every bit as damaging as an adverse judg-

ment. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.

863, 870 (1994). Indeed, the "crucial distinction between a

right not to be tried and a right whose remedy requires . . .

dismissal" is whether the immunity in question would be evis-

cerated by the very process of litigation. United States v. Hol-

lywood Motor Car Co., 458 U.S. 263, 269 (1982).

Here, the asserted immunity can take on different labels

—"law-of-war immunity," "Boyle preemption," or an inher-

ently political question—but the underlying premise is the

same: that suits for damages against private defendants arising

out of military contracts performed in a theatre of war are not

cognizable by the federal courts under state tort law. The

point of this immunity is not to determine after all the vicissi-

tudes of litigation who should win and who should lose.

Rather, it is a recognition that sensitive military matters

should be insulated at the outset from judicial scrutiny, and

the cases to this effect are legion.

The majority’s contrary holding is animated by a single

mistaken belief: that "the denial of a preemption claim stem-

ming from the combatant activities exception would not . . .

entail significant scrutiny of sensitive military issues." Ante at

27. The majority expresses this confidence despite its obser-

vation that "the questions that will require proper answers . . .

have yet to be fully ascertained." Id. at 34. At a minimum, it

seems clear that the majority’s pursuit of "the luxury of a

complete record developed through discovery," id. at 33,

"careful analysis of intrinsically fact-bound issues," id. at 34,

and "exploration of the appellants’ duties under their contracts

with the government," id. at 34, contemplates full-fledged liti-

AL SHIMARI v. CACI INTERNATIONAL 73

gation that will inevitably require the substantial scrutiny of

military affairs.

But this is not just another day at the ranch. This is an

extraordinary case presenting issues that touch on the most

sensitive aspects of military operations and intelligence. The

majority’s proposed inquiry, "focuse[d] on whether the con-

tractor complied with the government’s specifications and

instructions," id. at 27, must perforce entail bringing the mili-

tary personnel who gave those instructions before a court

halfway around the world. The Supreme Court has long cau-

tioned against "compelled depositions . . . by military officers

concerning the details of their military commands," which

will only "disrupt the military regime." Stanley, 483 U.S. at

682-83.

Domestically, this sort of "broad ranging discovery and the

deposing of numerous persons . . . can be peculiarly disrup-

tive of effective government." Harlow v. Fitzgerald, 457 U.S.

800, 817 (1982). It carries the risks of "distraction of officials

from their governmental duties, inhibition of discretionary

action, and deterrence of able people from public service." Id.

at 816. In the context of the battlefield, the consequences are

geometrically more dire, since the plaintiffs seek information

about the interrogation methods and intelligence gathering

techniques critical to our nation’s success in combat. "Even a

small chance that some court will order disclosure of a

source’s identity could well impair intelligence gathering

. . . ." CIA v. Sims, 471 U.S. 159, 175 (1985). I wonder how

the majority expects an "inquiry focuse[d] on whether the

contractor complied with the government’s specifications and

instructions," ante at 27, to be resolved without hauling before

the district court the military officers who gave those instruc-

tions, exposing our national security apparatus in direct con-

travention of the Supreme Court’s clear instructions to the

contrary.

Because military contractors work at such close quarters

with the military, judicial "inquiry into the civilian activities

74 AL SHIMARI v. CACI INTERNATIONAL

[will] have the same effect on military discipline as a direct

inquiry into military judgments." Johnson, 481 U.S. at 691

n.11. This is hardly a fanciful concern. Al-Quraishi, for

instance, will likely seek discovery to validate the allegation

in his complaint that "L-3 employees[ ] and CACI employees

conspired with certain military personnel to torture prisoners."

And the defendants are no better. CACI acknowledged at oral

argument that, in order to produce sensitive military docu-

ments that would vindicate itself, it would push the discovery

process against the military "as broadly as [it] possibly

could."

This quite plainly is the stuff of immunity, not just some

affirmative defense. Despite the Supreme Court’s explicit

admonition to the contrary, both parties frankly seek to "re-

quire members of the Armed Services" and their contractors

"to testify in court as to each other’s decisions and actions" in

an attempt to sort out "the degree of fault," thereby undermin-

ing the private-public cooperation and discipline necessary for

the execution of military operations. See Stencel Aero Eng’g

Corp. v. United States, 431 U.S. 666, 673 (1977). Both parties

to this suit propose to go rummaging through the most sensi-

tive military files and documents, seeking to prove or dis-

prove a broad-reaching conspiracy to conduct the alleged

illegal interrogations. I have no doubt that these proceedings

will quickly "devolve into an exercise in finger-pointing

between the defendant contractor and the military, requiring

extensive judicial probing of the government’s wartime poli-

cies." Saleh, 580 F.3d at 8.

By pitting uniformed soldiers and military contractors

against one another, we will only "hamper the war effort and

bring aid and comfort to the enemy," which will relish the

opportunity to drag American soldiers into our "own civil

courts" and thereby divert their "efforts and attention from the

military offensive abroad to the legal defensive at home."

Johnson v. Eisentrager, 339 U.S. 763, 779 (1950). "[T]hese

cases are really indirect challenges to the actions of the U.S.

AL SHIMARI v. CACI INTERNATIONAL 75

military," Saleh, 580 F.3d at 7, and it "would be difficult to

devise more effective fettering of a field commander than to

allow" the suits the majority encourages today. See Eisen-

trager, 339 U.S. at 779.

Rather than allow this court to address the merits of the

immunity question and decide once and for all whether the

demands of national security preclude this suit, the majority

prefers sending this litigation back to a lone district judge

with no more guidance than to say that he should keep his fin-

ger in the dike and avoid discovery that imperils national

security. The ringing klaxons that t

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