Reply Brief — Saleh v. Titan Corp.

S

No. 09-1313 f ?—

— = ee JUL 13 Lu0

Jn The

Supreme Court of the Anited States

_ ¢ ieee

HAIDAR MUHSIN SALEH, et al.,

Petitioners,

V.

TITAN CORPORATION, et al.,

Respondents

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia

@

CONSOLIDATED REPLY BRIEF

FOR PETITIONERS

*

VINCENT I. PARRETT SUSAN L. BURKE

Counsel of Record KATHERINE HAWKINS

MOTLEY RICE LLC BURKE PLLC

28 Bridgeside Blvd. 1000 Potomac St., N.W.

Mt. Pleasant, SC 29464 Suite 150

vparrett@motlevrice.com Washington, DC 20007

(843) 216-9214 (202) 232-5504

Counsel for Petitioners

[Additional Counsel Listed On Inside Cover!

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

KATHERINE GALLAGHER

CENTER FOR CONSTITUTIONAL RIGHTS

666 Broadway, 7th Floor

New York, NY 10012

(212) 614-6464

SHEREEF HADI AKEEL

AKEEL & VALENTINE, PC

888 West Big Beaver Rd.

Troy, MI 48084

(248) 269-9595

CRAIG T. JONES

RODERICK E. EDMOND

EDMOND JONES LINDSAY, LLP

127 Peachtree St., N.E.

Suite 410

Atlanta, GA 30303

(404) 525-1080

L. PALMER FORET

THE LAW FIRM OF L. PALMER FORET, PC.

1735 20th Street, N.W.

Washington, DC 20009

(202) 332-2404

I.

IT.

TABLE OF CONTENTS

The Majority’s Decision Creates a Genuine

Circuit Split as to Non-State Actors’ ATS

Liability for the War Crime of Torture........

A.

B,

The Court of Appeals’ Affirmance of the

District Court’s Rationale for Dismis-

sal of the Petitioners’ ATS Claims Is

Binding Precedent, Not Mere Dicta......

Petitioners’ Appellate Briefs Argued

Against Dismissal of Their ATS Claims

on the Same Grounds as Their Peti

The Court of Appeals’ Alternate Ration-

ales for Dismissal of the Petitioners’

ATS Claims Warrant Summary Re-

NN en ce eee ape

1. The Court of Appeals Erred in Re-

fusing to Credit the Allegations in

the Petitioners’ Complaint...............

2. The Court of Appeals Erred in

Holding that its Judicially Created

“Battle-field Preemption” Defense

Bars ATS Claims Arising Under

Federal Common Law.......................

The Majority’s “Battle-Field” Preemption

Holding Warrants Immediate Review ........

TABLE OF AUTHORITIES

Page

CASES

Anderson vu. Liberty Lobby, 477 U.S. 242 (1986) ......10

Baker v. Carr, 369 U.S. 186 (1962) 13,14

Banco Nacional de Cuba v. Sabbatino, 376 U.S

398 (1964) an 12

Boyle v. United Technologies Corp., 487 U.S

500 (1988)....... 15, 20

Carmichael v. Kellogg, Brown & Root Sucs.,

Inc., 572 F.3d 1271 (11th Cir. 2009)....13, 14, 16, 17, 18

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 10

Chamber of Commerce of U.S. v. Reich, 74 ¥.3d

1322 (D.C. Cir. 1996). | | 1]

Chipanno v. Champion Int'l Corp., 702 F.2d

827 (9th Cir. 19838)... LO

Correctional Svcs. Corp. v. Malesko, 534 U.S

61 (2001)........ ae ROR YE SAA AWS 15

Dolliver v. Unitted States, 379 F.2d 307 (9th Cir

RD eRe eS RRR 1]

Estate of Manook v. Resources Triangle Inc.,

Int'l, 693 F.Supp.2d 4 (D.D.C. 2010)....... a 3

First Chicago Intl v. United Exch. Co., 836 F.2d

1375 (D.C. Cir. 1988)....... ano ae lO

Gibson v. City of Chicago, 910 F.2d 1510 (7th

Cir. 1990) lO

Leatherman v. Tarrant County Narcotics Intel

ligence and Coordination Unit, 507 U.S. 163

(1993).

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996

Murray v. Schooner Charming Betsy, 2 Cran

64 (1804).

The Nereide, 9 Cranch 388 (1815)

The Paquete Habana, 175 U.S. 677 (1900

Richardson v McKnight, 21 U.S. 399 (1997

Robison v. Canterbury Village, Inc., 48 F.2d 4:

(3d Cir. 1988)...

SEC v. Chenery Corp., 318 U.S. 80 (1943)

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004

United States U Hill. 13] E38d 1Q56 (D i;

1997)

Wyatt v. Cole, 504 U.S. 158 (1992)

Wyeth v. Levine, 129 S. Ct. 1187 (200

LS U.S.C. 8244 1(

28 U.S.C. §1292(t

8 UT S.C. 81350

This case warrants review because it creates a

circuit split regarding the application of the Alen

Tort Statute (ATS) to non-state actors for war crimes.

Respondents’ attempts to obscure that circuit split by

claiming that Petitioners have not previously alleged

war crimes are disingenuous. Petitioners are civilian

detainees protected by the Geneva Conventions, and

have consistently maintained throughout this htiga

tion that they are victims of war crimes, including

torture, for which the corporate defendants bear

responsibility.

Furthermore, Respondents’ submissions that this

case challenges Executive “war making” powers or

governmental policies regarding the use of con-

tractors is simply inaccurate: this is a case about the

commission of war crimes by private actors who

violated state, federal and international law. Because

of the far-reaching effects of the majority’s “battlefield

preemption” at a time when contractors outnumber

the military participating in overseas operations,

this case requires the Supreme Court’s immediate

attention.

I. THE MAJORITY’S DECISION CREATES A

GENUINE CIRCUIT SPLIT AS TO NON-

STATE ACTORS’ ATS LIABILITY FOR

THE WAR CRIME OF TORTURE

Respondents’ claim that the majority’s ATS holding

does not create a genuine circuit split is erroneous,

and rests on an inaccurate characterization of the

record below. First, the district court’s dismissal of

Petitioners’ ATS claims rested solely on Respondents’

status as non-state actors, and the majority affirmed

both the district court’s judgment and its rationale.

The fact that the majority advanced additional,

alternative justifications for its dismissal of the

Petitioners’ ATS claims does not. convert this holding

into dicta. Second, Respondents’ claim that the

Petitioners forfeited their claim that non-state actors

are liable for war crimes by failing to preserve it on

appeal is flatly tnaccurate. Third, the mayjority’s

alternative rationales for rejecting Petitioners’ ATS

claims present no obstacle to review of the first

question presented, because they are clearly in error,

and warrant summary reversal.

A. The Court of Appeals’ Affirmance of the

District Court’s Rationale for Dismissal

of the Petitioners’ ATS Claims Is

Binding Precedent, Not Mere Dicta

The Court of Appeals held that private actors’

torture of civilian prisoners detained in the course

of an armed conflict was not actionable under the

ATS, 28 U.S.C. §1350, because “la]lthough torture

committed by a state is recognized as a violation of a

settled international norm, that cannot be said of

private actors.” App. 34. Respondents attempt to

characterize this holding as dicta. That attempt fails.

The majority's ruling that non-state actors are not

liable under the ATS for the war crime of torture

affirmed both the judgment and rationale of the

district court, and is binding precedent in the D.C

Circuit.

The district court acknowledged that Petitioners

had properly alleged torture and war crimes in their

complaints. App. 107 (Petitioners “bring allegations of

nearly unspeakable acts of torture”); App. 114 (“The

complaint asserts Alien Tort Statute claims for

war crimes”); App. 119. It nonetheless dismissed their

Ahen Tort Statute claims because it found that “the

question is whether the law of nations applies to

private actors like the defendants in the present

case.... in the D.C. Circuit the answer is no.” App.

22. The majority affirmed both the district court's

judgment and its reasoning, acknowledging that

“whether a private actor, as opposed to a state, could

be hable under the ATS” is an “issue which divides us

from the Second Circuit.” App. 31.

The fact that the majority made additional,

alternative holdings justifying dismissal of the Peti-

tioners’ ATS claims do not convert this affirmance

into dicta, as lower courts in the District of Columbia

Circuit have already confirmed. In February 2010, a

federal district judge dismissed an ATS war crimes

claim on the basis of the majority's decision, holding

that although “[pJlaintiffs have alleged sufficient

facts to establish that Defendants have allegedly

committed war crimes in violation of the law of

nations,” their ATS claims were not actionable

because the defendant “is not a state actor.” Estate

of Manook v. Resources Triangle Inc., Intl, 693

F.Supp.2d 4, 19 (D.D.C. 2010).

B. Petitioners’ Appellate Briefs Argued

Against Dismissal of Their ATS Claims

on the Same Grounds as Their Petition

Respondents claim that Petitioners forfeited

their argument that private actors’ war crimes are

actionable under the law of nations, because they did

not preserve it in the Court of Appeals. Titan Opp. 9.

This is simply false. In their opening brief below,

Petitioners listed the following issue presented for

review: “Did the District Court err in holding that

torture and war crimes by corporate employees are

not actionable under the Alien Tort Statute?” Peti-

tioners’ Opening Appellate Br., Saleh v. Titan Corp.,

No. 08-7008. See also id. at 19 (citing allegation in

government report that a Titan employee had raped a

prisoner), 7d. at 39 (stating that Titan was legally

required to “discipline and supervise its employees to

prevent them from committing war crimes.”); id. at

63 (“This Court should follow the lead of the Supreme

Court, look to the well-developed consensus in both

domestic and international law, and hold that Plain

tiffs may state ATS claims against [Titan] for war

crimes”); Petitioners’ Reply Br. 6, n.2, Saleh v. Titan

Corp., No. 08-7008 (citing to Iitan translator Adel

Nakhla’s confession to acts that U.S. law defines as

war crimes); id. at 18 (referring to Plaintiffs’ “allega-

tions of torture, war crimes and assault and battery”);

id. at 24 (arguing that “private actors can be held

liable for serious violations of international law, such

as the claims for war crimes of the type alleged by

Plaintiffs.”); id. at 24 (noting that “torture 1s a war

)

crime”); id. at 27 (arguing that Titan should be held

liable for violation of “Sosa-level norms, such as the

prohibition against war crimes and torture.”); 1d. at

28 (“At this early stage in the litigation, this Court

must look to Plaintiffs’ Complaint, which pled wide-

spread rape, cruel treatment, forced nudity and mur-

der. The Complaint properly pled war crimes”); Arg.

Tr. 30, Saleh v. Titan Corp., No. 08-7008 (D.C. Cir.

Feb. 10, 2009) (Petitioners’ counsel states that the

“ATS claim that has that level of concreteness that

Sosa requires is the war crimes claim.”); Arg. Tr. 29,

Saleh v. CACTI Int'l, Inc., No. 08-7001 (D.C. Cir. Feb.

10, 2009) (Petitioners’ counsel states that “if you look

at the conduct that’s alleged for each individual

[plaintiff], every individual was subjected to a level of

physical force that rose to the level of torture.”).

Petitioners’ counsel did state during oral argu-

ment that abuse against prisoners violated the law of

nations even if it did not rise to the level of torture,

because “the Geneva Convention [states] that you’re

not to use any physical force” against civilian prison-

ers. Arg. Tr. 29, Saleh v. CACT Int'l, Inc., No. 08-7001

(D.C. Cir. Feb. 10, 2009). But this statement — which

was made during oral arguments in CACI’s appeal,’

' Petitioners did not file a notice of cross-appeal regarding

CACI’s ATS lability for war crimes, because there was no order

or fina] judgment of the district court that they had the mght to

appeal. CACI’s appeal was a challenge to the district court's

November 6, 2007 interlocutory order (App. 84-106) denying

summary judgment to CACI, pursuant to 28 U.S.C. §1292(b)

The November 6th order did not discuss the Petitioners’ ATS

(Continued on following page)

6

not the Petitioners’ appeal of the district court’s ATS

holding — was not a request for the lower court to

recognize a new cause of action for assault and

battery under the ATS. Rather, it was an argument

that that there was no conflict between the Respon-

dents’ state and federal legal duties. In response to

the Court’s inquiry whether “assault and battery

would be covered by the law of nations,” counsel

confirmed that “[iln this context it would be,” rd. at

claims, which the district court had dismissed in two previous

interlocutory orders. App. 107-138. Because of this, CACI moved

to intervene in the Petitioners’ appeal of the district court's

judgment regarding Titan, on grounds that “CACI remains a

defendant in the Jbrahim and Saleh lawsuits, and CACI will be

bound by this Court’s resolution of these appeals to the extent

this Court’s ruling addresses the legal sufficiency of Plaintiffs

Alien Tort Statute claims.” CACI Mot. to Intervene, SaleA v.

Titan Corp., No. 08-7008 (Mar. 28, 2008). The Court of Appeals

granted CACI’s motion on June 13, 2008. Because of this,

Petitioners briefed the issue of corporate liability for war crimes

solely in the Titan appeal, but made clear during briefing and

oral argument that CACI had also committed the war crime of

torture. See Petitioners’ Appellate Br. 17, 39-40, Saleh v. CAC]

Int'l, Inc., No. 08-7001; Petitioners’ Opening Appellate Br. 17,

n.5, Saleh v. Titan Corp., No. 08-7008 (citing evidence that

“CACI interrogators Steven Stefanowicz and Daniel Johnson

were two of the ringleaders of prisoner torture at Abu Ghraib”).

Given the majority's acknowledgement that Petitioners’

allegation “that one of CACIs employees observed and

encouraged beating of a detainee’s soles with a rubber hose,

which could well constitute torture or a war crime,” App. 5, n.1

(emphasis in original), its failure to remand to the district court

on the issue of CACI’s lability for war crimes underscores its

adoption of the district court’s conclusion regarding non-state

actors’ ATS liability.

30, because it violated the duty imposed by federal

common law and the Geneva Conventions

not to inflict physical harm on the detainees.

And this really goes to the point of the duty

of care and why the argument made by CACI

that the combatant activities exception

eliminates any duty of care is not accurate

because when we're looking under federal

common law ... the federal common law

incorporating the law of war, the law of war

does not eliminate a duty of care. The law of

war does the opposite, it makes specific when

there are duties of care. And one of the

places in which there is a duty of care is

when people are detained, they’re no longer

out in the battlefield.

fd. at 31.

This statement, far from being “absurd” or

“untenable,” App. 33, is plainly accurate. The Army

has acknowledged that prisoners at Abu Ghraib were

protected persons under the Fourth Geneva Con-

vention. Titan J.A. 529-530. Article 27 of that treaty

requires that protected persons “be humanely

treated, and ... protected especially against all acts

of violence or threats thereof.” App. 156. Article 32

forbids signatories from “taking any measure ... to

cause the physical suffering” of protected persons

in captivity, including “corporal punishments” and

“any other measures of brutality whether applied

by civilian or military agents.” App. 157. Article 37

states that protected persons who are detained must

1 8)

“during their confinement be humanely treated.” App.

157. Article 147 defines “grave breaches” of the

Convention to include not only torture and murder,

but also “inhuman treatment,” and “willfully causing

great suffering or serious injury to body or to health.”

App. 159. See also U.S. Army Regulation 190-8,

Enemy Prisoners of War, Retained Personnel,

Civilian Internees and Other Detainees, §1-5(a)(4)

(Oct. 1, 1997) (App. 160-161) (military regulations

implementing the Geneva Conventions state that

inhumane treatment of detainees “is a serious and

punishable violation under international law ... ”);

id. at §1-5(b) (prohibiting “corporal punishment” and

“all cruel and degrading treatment” of prisoners); id.

at §1-5(c) (prisoners “will be protected against all acts

of violence to include rape, forced prostitution, assault

and theft, insults, public curiosity, bodily injury, and

reprisals of any kind”) (emphasis added).

Grave breaches of the Geneva Conventions are

war crimes under United States and international

law. See 18 U.S.C. §2441(c)(1). The Petitioners’ com-

plaints alleged such grave breaches. Petitioners

asked the Court of Appeals to reverse the district

court’s dismissal of their ATS claims for the war

crime of torture, which violates a specific, universal,

and obligavory international law norm. As Petitioners

argued below, private parties’ liability for war crimes,

including torture, has been recognized by the Second

and Eleventh Circuits, by numerous international

law sources starting with the Nuremberg tribu-

nals, and recently confirmed by the United States’

Congress and Executive Branch. The Court of Ap-

peals’ contrary holding warrants a grant of certiorari.

9

C. The Court of Appeals’ Alternate Ration-

ales for Dismissal of the Petitioners’

ATS Claims Warrant Summary Rever-

sal.

The majority’s alternative grounds for dismissing

Petitioners’ ATS claims are so clearly in error as to

warrant summary reversal, and thus present no

obstacle to reaching Petitioners’ first question

presented.

1. The Court of Appeals Erred in Re-

fusing to Credit the Allegations in

the Petitioners’ Complaint.

The Third Amended Complaint in and the Second

Amended Complaint in Jbrahim allege specific acts of

brutality that rise to the level of torture, and properly

state causes of action for torture and war crimes. Pet.

6-7. The majority, however, held that it was not

required to credit these allegations, because,

after discovery and the summary judgment

proceeding, for whatever reason, plaintiffs

did not refer to those allegations in their

briefs on appeal. Indeed, no accusation of

“torture” or specific “war crimes” is made

against Titan interpreters in the briefs be-

fore us. We are entitled, therefore to take the

plaintiffs’ cases as they present them to us.

App. 4. As noted above in Section I(B), this is not an

accurate characterization of the Petitioners’ briefs.

Moreover, the majority disregarded the fact that

the district court limited both discovery and summary

10

judgment briefing to the issue of preemption. There

has been no discovery on the merits of Petitioners’

allegations. App. 38, 44, 115-16, 133-35. This Court

has held that summary judgment is not appropriate

unless the plaintiff has “a full opportunity to conduct

discovery” on the issues in question. Anderson uv.

Liberty Lobby, Inc., 477 U.S. 242, 257 (1986); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986) (summary

judgment appropriate only “after adequate time for

discovery”). See also Leatherman v. Tarrant County

Narcotics Intelligence and Coordination Unit, 507

U.S. 163, 164 (1993); Gibson v. City of Chicago, 910

F.2d 1510, 1520-21 (7th Cir. 1990) (before plaintiffs

were permitted to take discovery on an issue, court

was required to “accept as true all the plaintiff’s

well-pleaded factual allegations and the inferences

reasonably drawn from them.”); First Chicago Int'l v.

United Exch. Co., 836 F.2d 1375, 1376 (D.C. Cir.

1988); Robison v. Canterbury Village, Inc., 848 F.2d

424, 426, 429 (3d Cir. 1988); Chipanno v. Champion

Intl Corp., 702 F.2d 827, 831 n.2 (9th Cir. 1983).

In line with these precedents, and the limitations

it placed on discovery, the district court has not made

any factual findings regarding the merits of plaintiffs’

allegations of torture and war crimes. An appellate

court has no authority to act as an initial fact finder.

See, e.g., United States v. Hill, 131 F.3d 1056, 1061 (D.C.

Cir. 1997) (noting that “where the correctness of the

lower court’s decision depends upon a determination

of fact which only a [fact-finder] could make but which

has not been made, the appellate court cannot take

the place of the [fact-finder]”) (internal quotations

and citations deleted’ See also SEC v. Chenery Corp.,

L]

318 U.S. 80, 88 (1943) (same). This Court should

summarily reverse the majority’s attempt to “usurp

the function of the duly constituted fact finder,” Dol-

liver v. United States, 379 F.2d 307, 308 n.1 (9th Cir.

1967).

2. The Court of Appeals Erred in

Holding that its Judicially Created

“Battle-field Preemption” Defense

Bars ATS Claims Arising Under

Federal Common Law

The lower court’s holding that if “state tort law is

preempted on the battlefield because it runs counter

to federal interests, the application of international

law to support a tort action on the battlefield must be

equally barred,” App. 37, conflicts with this Court’s

decisions, and has no basis in precedent or statute. In

support of its argument, the majority cited only one

inapposite case, Chamber of Commerce of U.S. v.

Reich, 74 F.3d 1322 (D.C. Cir. 1996), in which the

D.C. Circuit held that a federal statute (the National

Labor Relations Act) preempted an Executive Order

on federal procurement policy. App. 37. A precedent

holding that a federal statute is lex superior to an

executive order does not support the Court of Appeals’

holding that its newly-created common law defense of

“battle-field” preemption is lex superior to the long

line of precedents affirming that federal common law

incorporates the law of nations. See Brief of Amici

Curiae Professors of Federal Courts, Internationa!

Law, and U.S. Foreign Relations Law at 10-15. See

12

also Sosa v. Alvarez-Machain, 542 U.S. 692. 729

(2004) (“[f Jor two centuries we have affirmed that the

domestic law of the United States recognizes the law

of nations”); Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398, 423 (1964) (noting that “it is, of course,

true that United States courts apply international

law as a part of our own in appropriate circum-

stances”); The Paquele Habana, 175 U.S. 677, 700

(1900) (“International law is part of our law, and

must be ascertained and administered by the courts

of justice of appropriate jurisdiction, as often as

questions of right depending upon it are duly

presented for their determination”); The Nereide, 9

Cranch 388, 423, 3 L.Ed. 769 (1815) (Marshall, C.J.)

(“[T|he Court is bound by the law of nations which is

a part of the law of the land”). See also Murray v

Schooner Charming Betsy, 2 Cranch 64, 118, 2 L.Ed.

208 (1804) (“‘|[AJn act of congress ought never to be

construed to violate the law of nations if any other

possible construction remains.”).’

' CACI’s claim that “the Constitution itself, by assigning

war powers exclusively to the political branches, occupies the

field and precludes judicial review,” of U.S. contractors’ wartime

conduct is an argument for a finding of nonjusticiability under

the political question doctrine, not a preemption defense. CAC]

Opp. 9, n.5. CACI argued before the both the district court and

the Court of Appeals that this case presents a political question,

but the district court rejected that claim (App. 109, 124-128) and

the Court of Appeals did not reach it

13

Il. THE MAJORITY’S “BATTLE-FLELD” PRE-

EMPTION HOLDING WARRANTS IMME-

DIATE REVIEW

Respondents cite the United States’ amicus brief

opposing certiorart in Carmichael vo. Kellogg, Brown

& Root Sves., Inc., No. 09-683 (May 28, 2010) to argue

that the Court should allow the majority’s preemption

holding to stand while the issue of military service

contractors’ tort liability “percolates” in the lower

courts. But the Court of Appeals’ holding in this case

sweeps far broader than the Eleventh Circuit’s

holding in Carmichael, 572 F.3d 1271 (11th Cir.

2009), and warrants immediate review under the

standards set forth in Supreme Court Rule 10. The

majority held that the Federal Tort Claims Act’s

combatant activities exception, and the federal gov-

ernment’s power over foreign affairs, preempted the

entire body of tort law from applying to private, for

profit military contractors in Iraq and Afghanistan.

Given the conflict between the majority’s decision and

this courts’ preemption jurisprudence, and the harm-

ful policy implications of allowing contractors to

violate the laws of war with impunity, further

percolation is both unnecessary and inappropriate.

In Carmichael, the Eleventh Circuit applied the

well established Baker v. Carr, 369 U.S. 186 (1962),

analysis to determine whether a plaintiff’s claims pre-

sented a nonjusticiable political question to the facts

concerning a military fuel supply convoy accident in

Iraq. See U.S. Br. at 16, Carmichael, supra. Based on

the district court’s factual findings that the convoy

14

was led by a military officer, and the military had

determined the convoy’s exact route, departure time,

the amount of supplies to be transported, the speed at

which vehicles would travel, the security easures

taken, and the space maintained between vehicles,

the Court of Appeals found that it could not evaluate

the Pjaintiff’s negligence claims without examining

sensitive military judgments, which the Constitution

had textually committed to the Executive Branch. /d.

at 2-7. The Carmichael court further found that there

were no judicially manageable standards to resolve

the plaintiff’s negligence claim, because a trial court

would be forced to ask “what a reasonable driver

subject to military control over his exact speed and

path would have done,” and would have to take into

account the fact that “any decision to slow down could

well have jeopardized the entire military mission and

could have made Irvine and other vehicles in the

convoy more vulnerable to an insurgent attack.” /d.

at 7. The Solicitor General stated that the Court of

Appeals “may have ultimately erred” in applying the

Baker v. Carr factors “to the particular facts of this

case,” id. at 16, but nonetheless opposed certiorart.

In this case, the Court of Appeals did not merely

misapply a properly stated rule of law, or make

erroneous factual findings. Instead, the majority

created an entirely new doctrine of government

contractor preemption, “to coin a term, ‘battle-field

preemption,” App. 16, based on the combatant

activities exception to the Federal ‘Tort Claims Act.

The majority held that FTCA preempted all tort suits

against service contractors “integrated and perform-

ing a common mission with the military,” App. 13, in

combat zones, because

the policy embodied by the combatant activi-

ties exception is simply the elimination of

tort from the battlefield. ... And the policies

of the combatant activities exception are

equally implicated whether the alleged tort-

feasor is a soldier or a contractor.

App. 115.

As Judge Garland explained in his well-reasoned

dissent (App. 38-83), this doctrine is not merely

“novel”; it also conflicts with binding Supreme Court

precedents on the scope of government contractor

preemption, and on the proper analysis of whether a

federal statute preempts generally applicable state

tort law. In holding that the combatant activities

exception preempted “the imposition per se” of tort

hability, the majority abandoned the requirement of

Boyle v. United Technologies Corp., 487 U.S. 500, 507-

509 (1992) and Correctional Svcs. v. Malesko, 534

U.S. 61, 74 n.6 (2001), of a direct conflict between a

contractor’s federal and tort law duties. The assertion

that “the policies of the combatant activities excep-

tion are equally implicated whether the alleged

tortfeasor is a soldier or a contractor” disregards the

text of the FTCA, and Wyeth v. Levine's holding that

state law is not to be superseded “unless that was the

clear and manifest purpose of Congress.” 129 S. Ct.

1187, 1194-1195 (2009) (quoting Medtronic, Inc. v.

16

Lohr, 518 U.S. 470, 485 (1996)). See also Pet. 26-32;

Richardson v. McKnight, 521 U.S. 399, 403-404 (1997)

(private actors do not automatically receive govern-

mental immunity, and “private prison guards, unlike

those who work directly for the government, do not

enjoy immunity from suit” for violating prisoners’

civil rights); Wyatt v. Cole, 504 U.S. 158 (1992) (con-

spiracy with government officials does not confer

government immunities). The majority’s alternative

holding, that Petitioners’ claims are preempted by the

federal government's foreign affairs power, is equally

unsupported by precedent. Pet. 33-37.

Further percolation in the Courts of Appeals will

not resolve this conflict, and the grave and harmful

policy implications of the majority’s decision counsel

against letting it stand. As the United States stated

in its amicus brief in Carmichael, the U.S. govern-

ment

has significant interests in ensuring that its

contractors exercise proper care in miuini-

mizing risks to service members and civil-

ians and do not avoid appropriate sanctions

for misconduct. Contractor misconduct re-

sulting in harm to local nationals abroad also

in some circumstances can have significant

negative foreign policy implications for the

United States.

U.S. Br. at 9, Carmichael, supra. See also Brief of

Amici Curiae Human Rights First et al. at 21, quot-

ing U.S. DEP’T OF THE ARMY, UNITED STATES

ARMY COUNTERINSURGENCY HANDBOOK 1-24,

17

11-1382 (2006) (Participants in counterinsurgency

operations “must follow United States law, including

domestic laws, treaties to which the United States is

a party, and certain [host nation] laws. Any human

rights abuses or legal violations committed by U.S.

forces quickly become known throughout the local

populace and eventually around the world. Illegiti-

mate actions undermine both long- and short-term

[counterinsurgency] efforts”); App. 173 (Department

of Defense affirms “the current rule of law . . . holding

contractors accountable for the negligent or willful

actions of their employees, officers, and subcon-

tractors,” and declines to “invite courts to shift the

risk of loss to innocent third parties” through “de-

fenses based on the sovereignty of the United States”

for the contractor’s “own actions.”).”

* Respondents’ claim that the Solicitor General's brief in

Carmichael disavowed DoD's regulatory comments is incorrect

The Solicitor General’s brief noted that the DoD comments

supported “holding contractors accountable for the negligent or

willful actions of their employees, officers, and subcontractors,”

and suggested that courts should not permit contractors to

invoke *he United States’ sovereignty to avoid liability for their

“own actions.” U.S. Br. at 12, n.4, Carmichael, supra. It also

noted DoD’s statement that “[clontractors will still be able to

defend themselves when injuries ¢o third parties are caused by

the actions or decisions of the Government,” and stated that the

regulatory comments took no position as to liability in cases like

Carmichael, where there is genuine ambiguity as to whether the

military's or contractor's conduct caused the plaintiffs’ injuries.

Id. In this case, however, there is no such ambiguity. Petitioners

allege conduct that violates federal law, the laws of war, and

US. policy, and Respondents have never produced evidence that

(Continued on following page)

To be sure, this interest must be balanced against

competing governmental interests. See U.S. Br. at. 9,

Carmichael, supra. But there is no justification for

disregarding it entirely. This is particularly true in a

case that arises out of the torture of prisoners at

Abu Ghraib, which amici Retired Military Officers

describe as “one of the most shameful episodes in our

Nation’s otherwise honorable military history — an

episode that damaged our country’s hard-earned rep-

utation for lawful and humane treatment of wartime

detainees.” Bref of Amici Curiae Retired Military

Officers at 4.

As the officers state, “[a]bsent traditional tort

liability, there is not a meaningful mechanism to hold

accountable those who engage in patently unlawful

conduct or to deter private military contractors from

abusing prisoners in the future.” /d. at 21. Although

criminal prosecution and contractual remedies for

contractor misconduct are theoretically available, U.S.

Br. at 14, n.7, Carmichael, supra, there are substantial

legal and practical obstacles to federal prosecution of

contractors who commit felonies. Id. at 22-23. More-

over, “absent the coercive effect of tort lability, pri-

vate military contractors have little incentive to

prevent future abuses by their employees,” because

“(cJorporations may shift responsibility to individual

employees and claim that they have fulfilled their

legal obligations by firing them.” Jd. at 23.

the military ordered or authorized its employees’ torture of

pmsoners

1g

Corporate actors do have contractual duties to

the government, but they are “primarily accountable

to private shareholders,” id. at 15, and the federal

government has had difficulty enforcing contractual

remedies even against corporations that serially

violate United States criminal law. See, e.g.. Black-

water Deal in Afghanistan Questioned by Congress,

The Guardian, Jun. 28, 2010; Blackwater Likely to

Face No Sanctions, McClatchy Newspapers, June 28,

2010 (recent news articles describe recent award of

new security contracts worth $220 million to Xe

Services, Inc., despite its employees’ multiple mas-

sacres of unarmed civilians and the recent indictment

of its former President and four other high ranking

executives on weapons smuggling charges).

There are 217,832 contractor personnel providing

services to the United States in Iraq and Afghanistan,

answering not to the military chain of command but

to for-profit corporations who receive a total of over

$5 billion annually for their services. Pet. at 20-21.

The majority’s holding has “eviscerated” one of the

most effective means of deterring them from violating

the law, Brief of Amzct Curiae Retired Military

Officers at 25, and is contrary to Supreme Court

precedent, the text of the relevant statute, and the

stated policy interests of the Executive branch. ‘The

hability of military service contractors for common

law torts and for war crimes is clearly an issue

of national importance. Further percolation in the

lower courts may be helpful in cases that turn on a

factual dispute as to whether the military or a

20

contractor caused a plaintiff’s injury, or how to pre-

cisely apply the Boyle preemption test, the political

doctrine, and other relevant defenses to the facts of

cases arising in combat zones. But the mayjority’s

opinion presents the threshold question of whether

military contractors providing services in war zones

can ever be held civilly liable for their tortious

conduct, or if all such suits are preempted because

the combatant activities exception to FTCA’s waiver

of sovereign immunity demonstrates that “the very

purposes of tort law are in conflict with the pursuit of

warfare.” App. 16. The answer to that question will

have serious implications not only for the torture

victims in this case, but for U.S. foreign policy, and

for thousands of U.S. soldiers and innocent civilians

who have been or may be gravely injured by military

contractors’ misconduct. Because of the breadth of the

majority's holding, this case is an unusually strong

vehicle for resolving that question, and warrants

immediate review by this Court.

Respectfully submitted,

VINCENT I. PARRETT

Counsel of Record

Mot.ey RicE LLC

28 Bridgeside Blvd.

Mt. Pleasant, SC 29464

vparrett@motleyrice.com

(843) 216-9214

SUSAN L. BURKE

KATHERINE HAWKINS

KURKE PLLC

1000 Potomac St., N.W

Suite 150

Washington, DC 20007

(202) 232-5504

KATHERINE GALLAGHER

CENTER FOR CONSTITUTIONAL RIGHTS

666 Broadway, 7th Floor

New York, NY 10012

(212) 614-6464

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AKEEL & VALENTINE, PC

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Troy, MI 48084

(248) 269-9595

CRAIG T. JONES

RODERICK E. EDMOND

EDMOND JONES LINDSaAy, LLP

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Suite 410

Atlanta, GA 30303

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L. PALMER FORET

THE LAW FIRM OF

L. PALMER FORET, P.C

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