Suhail Al Shimari v. CACI Premier Technology, Inc.
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:08-cv-00827-GBL-JFA. [999385609]. [13-1937, 13-2162]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1937
SUHAIL NAJIM ABDULLAH AL SHIMARI; TAHA YASEEN ARRAQ RASHID;
SALAH HASAN NUSAIF AL-EJAILI; ASA'AD HAMZA HANFOOSH ALZUBA'E,
Plaintiffs - Appellants,
v.
CACI PREMIER TECHNOLOGY, INC.; CACI INTERNATIONAL, INC.,
Defendants – Appellees,
and
TIMOTHY DUGAN; L-3 SERVICES, INC.,
Defendants.
-------------------------------CIVIL PROCEDURE PROFESSORS; DOLLY FILARTIGA; ABUKAR HASSAN
AHMED; DANIEL ALVARADO; DR. JUAN ROMAGOZA ARCE; ALDO
CABELLO; ZITA CABELLO; AZIZ MOHAMED DERIA; NERIS GONZALES;
CARLOS MAURICIO; GLORIA REYES; OSCAR REYES; CECILIA SANTOS
MORAN; ZENAIDA VELASQUEZ; BASHE ABDI YOUSUF; INTERNATIONAL
LAW SCHOLARS; WILLIAM R. CASTO; MARTIN S. FLAHERTY; NASSER
HUSSEIN; STANLEY N. KATZ; MICHAEL LOBBAN; JENNY S. MARTINEZ;
RETIRED
MILITARY
OFFICERS;
UNITED
NATIONS
SPECIAL
RAPPORTEURS ON TORTURE,
Amici Supporting Appellants.
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No. 13-2162
SUHAIL NAJIM ABDULLAH AL SHIMARI; TAHA YASEEN ARRAQ RASHID;
SALAH HASAN NUSAIF AL-EJAILI; ASA'AD HAMZA HANFOOSH ALZUBA'E,
Plaintiffs – Appellants,
v.
CACI PREMIER TECHNOLOGY, INC.; CACI INTERNATIONAL, INC.,
Defendants – Appellees,
and
TIMOTHY DUGAN; L-3 SERVICES, INC.,
Defendants.
-------------------------------CIVIL PROCEDURE PROFESSORS; DOLLY FILARTIGA; ABUKAR HASSAN
AHMED; DANIEL ALVARADO; DR. JUAN ROMAGOZA ARCE; ALDO
CABELLO; ZITA CABELLO; AZIZ MOHAMED DERIA; NERIS GONZALES;
CARLOS MAURICIO; GLORIA REYES; OSCAR REYES; CECILIA SANTOS
MORAN; ZENAIDA VELASQUEZ; BASHE ABDI YOUSEF; INTERNATIONAL
LAW SCHOLARS; WILLIAM R. CASTRO; MARTIN S. FLAHERTY; NASSER
HUSSEIN; STANLEY N. KATZ; MICHAEL LOBBAN; JENNY S. MARTINEZ;
RETIRED
MILITARY
OFFICERS;
UNITED
NATIONS
SPECIAL
RAPPORTEURS ON TORTURE,
Amici Supporting Appellants.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:08-cv-00827-GBL-JFA)
Argued:
March 18, 2014
Decided:
2
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Before KEENAN and FLOYD, Circuit Judges, and Max O. COGBURN,
Jr., United States District Judge for the Western District of
North Carolina, sitting by designation.
Vacated and remanded by published opinion.
Judge Keenan wrote
the opinion, in which Judge Floyd and Judge Cogburn joined.
ARGUED: Baher Azmy, CENTER FOR CONSTITUTIONAL RIGHTS, New York,
New York; Robert P. LoBue, PATTERSON, BELKNAP, WEBB & TYLER, New
York, New York, for Appellants.
Joseph William Koegel, Jr.,
STEPTOE & JOHNSON LLP, Washington, D.C., for Appellees.
ON
BRIEF:
Katherine
Gallagher,
Jeena
Shah,
CENTER
FOR
CONSTITUTIONAL RIGHTS, New York, New York; Shereef Hadi Akeel,
AKEEL & VALENTINE, P.C., Troy, Michigan; George Brent Mickum IV,
LAW FIRM OF GEORGE BRENT MICKUM IV, Bethesda, Maryland, for
Appellants.
John F. O'Connor, STEPTOE & JOHNSON LLP,
Washington, D.C., for Appellees.
Tyler R. Giannini, Sarah P.
Alexander, International Human Rights Clinic, HARVARD LAW
SCHOOL, Cambridge, Massachusetts, for Amici William R. Casto,
Martin S. Flaherty, Nasser Hussain, Stanley N. Katz, Michael
Lobban, and Jenny S. Martinez. Stephen B. Pershing, THE CHAVERS
FIRM, LLC, Washington, D.C.; Ralph G. Steinhardt, Arin Melissa
Brenner, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, Washington,
D.C., for Amicus International Law Scholars.
Jonathan Hafetz,
Rachel Godsil, Jon Romberg, Chelsea Jasnoff, Matthew Mierswa,
Center for Social Justice, SETON HALL UNIVERSITY SCHOOL OF LAW,
Newark, New Jersey, for Amicus Retired Military Officers.
L.
Kathleen Roberts, Nushin Sarkarati, Scott A. Gilmore, THE CENTER
FOR JUSTICE & ACCOUNTABILITY, San Francisco, California; Ali A.
Beydoun,
UNROW
HUMAN
RIGHTS
IMPACT
LITIGATION
CLINIC,
Washington, D.C., for Amici Dolly Filartiga, Abukar Hassan
Ahmed, Daniel Alvarado, Juan Romagoza Arce, Aldo Cabello, Zita
Cabello, Aziz Mohamed Deria, Neris Gonzales, Carlos Mauricio,
Gloria Reyes, Oscar Reyes, Cecilia Santos Moran, Zenaida
Velasquez, and Bashe Abdi.
Deena R. Hurwitz, Lauren Schnyer,
Second Year Law Student, Jennifer Tian, Third Year Law Student,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia,
for Amicus United Nations Special Rapporteurs on Torture.
Joshua S. Devore, Agnieszka M. Fryszman, CHOEN MILSTEIN SELLERS
& TOLL PLLC, Washington, D.C., for Amici Civil Procedure
Professors, Erwin Chemerinsky, Helen Hershkoff, Allan Paul Ides,
Stephen I. Vladeck, and Howard M. Wasserman.
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BARBARA MILANO KEENAN, Circuit Judge:
In
this
appeal,
we
consider
whether
a
federal
district
court has subject matter jurisdiction to consider certain civil
claims seeking damages against an American corporation for the
torture and mistreatment of foreign nationals at the Abu Ghraib
prison in Iraq. 1
The primary issue on appeal concerns whether
the Alien Tort Statute, 28 U.S.C. § 1350, as interpreted by the
Supreme Court in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct.
1659 (2013), provides a jurisdictional basis for the plaintiffs’
alleged violations of international law, despite the presumption
against extraterritorial application of acts of Congress.
We
also address the defendants’ contention that the case presents a
“political
question”
that
is
inappropriate
for
judicial
resolution under our decision in Taylor v. Kellogg Brown & Root
Services, Inc., 658 F.3d 402 (4th Cir. 2011).
We conclude that the Supreme Court’s decision in Kiobel
does not foreclose the plaintiffs’ claims under the Alien Tort
Statute,
and
that
contrary
conclusion.
the
district
Upon
court
applying
erred
the
in
reaching
fact-based
a
inquiry
articulated by the Supreme Court in Kiobel, we hold that the
1
Some of the information pertinent to this appeal has been
filed under seal.
This Court has avoided reference to sealed
documents to the greatest extent possible and has made any
necessary redactions to the publicly available version of the
opinion.
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plaintiffs’
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claims
“touch
and
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concern”
the
territory
of
the
United States with sufficient force to displace the presumption
against extraterritorial application of the Alien Tort Statute.
See Kiobel, 133 S. Ct. at 1669.
However, we are unable to
determine from the present record whether the claims before us
present nonjusticiable political questions.
Therefore, we do
not reach the additional issue of the district court’s dismissal
of the plaintiffs’ common law claims, and we vacate the district
court’s judgment with respect to all the plaintiffs’ claims and
remand the case to the district court.
We direct that the
district court undertake factual development of the record and
analyze its subject matter jurisdiction in light of our decision
in Taylor and the principles expressed in this opinion.
I.
In 2003, a multi-national force led by the United States
and the United Kingdom invaded Iraq and deposed its sovereign
leader, Saddam Hussein.
The United States took control of Abu
Ghraib, the site of a prison facility near Baghdad, and used the
prison
enemies
to
of
detain
various
individuals,
the
provisional
government,
including
and
criminals,
other
persons
selected for interrogation because they were thought to possess
information regarding Iraqi insurgents.
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Due to a shortage of trained military interrogators, the
United
States
hired
civilian
detainees at Abu Ghraib.
this
civil
exclusively
action,
by
those
CACI
contractors
to
interrogate
During the time period relevant to
private
Premier
interrogators
Technology,
were
Inc.
corporation domiciled in the United States.
provided
(CACI),
a
CACI’s corporate
headquarters is located in Virginia, and CACI is a wholly-owned
subsidiary of CACI International, Inc. (CACI International), a
publicly
traded
Delaware
corporation
that
also
has
corporate
headquarters in Virginia.
According to an official investigation commissioned by the
United
States
Department
of
Defense
(Defense
Department),
“numerous incidents of sadistic, blatant, and wanton criminal
abuses were inflicted on several detainees” at the Abu Ghraib
prison between October and December 2003.
MAJ. GEN. ANTONIO M.
TAGUBA, ARTICLE 15-6 INVESTIGATION OF THE 800TH MILITARY POLICE
BRIGADE
16
(2004)
[hereinafter
REPORT
OF
MAJ.
GEN.
TAGUBA].
These atrocities were condemned by the President of the United
States
as
America.”
being
“abhorrent”
practices
that
“don't
represent
White House, Press Release, President Bush Meets with
Al Arabiya Television, 2004 WLNR 2540883 (May 5, 2004).
Both
houses of Congress condemned the abuses, stating that those acts
“contradict[ed] the policies, orders, and laws of the United
States and the United States military,” H.R. Res. 627, 108th
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Cong. (2004), and “urg[ing] that all individuals responsible for
such despicable acts be held accountable,” S. Res. 356, 108th
Cong.
(2004).
Department
Investigations
concluded
participated
in
that
some
military personnel.
of
conducted
CACI
the
by
the
interrogators
abuses,
along
Defense
directed
a
with
or
of
number
See REPORT OF MAJ. GEN. TAGUBA 48; MAJ.
GEN. GEORGE R. FAY, ARTICLE 15-6 INVESTIGATION OF THE ABU GHRAIB
DETENTION FACILITY AND 205TH MILITARY INTELLIGENCE BRIGADE 7-8,
84, 86-87, 89, 116-17, 132-35 (2004).
The four plaintiffs in this case are foreign nationals who
allege
that
they
were
tortured
and
otherwise
mistreated
by
American civilian and military personnel while detained at Abu
Ghraib. 2
Among
many
other
examples
of
mistreatment,
the
plaintiffs describe having been “repeatedly beaten,” “shot in
the
leg,”
“repeatedly
shot
in
the
head
with
a
taser
gun,”
“subjected to mock execution,” “threatened with unleashed dogs,”
“stripped naked,” “kept in a cage,” “beaten on [the] genitals
with a stick,” “forcibly subjected to sexual acts,” and “forced
to watch” the “rape[] [of] a female detainee.”
Many of the acts
allegedly were perpetrated “during the night shift” in order to
2
The record does not contain any evidence that the
plaintiffs were designated “enemy combatants” by the United
States government. In fact, Defense Department documents in the
record state that plaintiff Al Shimari “is not an Enemy
Combatant in the Global War on Terror.” (Emphasis in original.)
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“minimize
the
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risk
of
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detection
by
nonparticipants”
and
to
“soften up” the detainees for later interrogation.
The
plaintiffs
directed,
allege
conduct
participated
towards
that
in,
CACI
encouraged,
detainees
that
employees
“instigated,
and
and
clearly
aided
violated
the
abetted
Geneva
Conventions, the Army Field Manual, and the laws of the United
States.”
In
particular,
the
plaintiffs
allege
that
in
the
“command vacuum at Abu Ghraib,” CACI interrogators operated with
“little to no supervision” and were perceived as superiors by
United States military personnel.
Military personnel allegedly
carried out orders issued by the CACI civilian interrogators to
“soften up” and “set conditions” for the abuse of particular
detainees, contrary to the terms of CACI’s contract with the
United States government.
In that contract, which was executed in August 2003, CACI
agreed
to
military.
provide
This
interrogation-related
contract
was
not
services
awarded
by
the
to
the
Defense
Department or military sources, but by the Department of the
Interior (Interior Department).
by
an
Interior
Department
The contract, which was issued
contracting
officer
in
Arizona,
authorized CACI to collect payments in excess of $19 million by
mailing invoices to Interior Department accounting offices in
Colorado.
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Under the terms of the Statement of Work (SOW) governing
CACI’s
contract
with
the
government,
CACI
was
obligated
to
supply interrogation “management and support” and to “function[]
as
resident
experts”
in
procedures.
The
stated
Interrogation
Support
SOW
interrogation
that
Cells,
as
regulations
CACI
would
directed
and
“provide
by
military
authority, . . . to assist, supervise, coordinate, and monitor
all
aspects
of
interrogation
activities.”
The
SOW
further
specified that “[t]he Contractor is responsible for providing
supervision for all contractor personnel.”
The
this
plaintiffs
contract,
allege
CACI’s
that
during
managers
CACI’s
failed
performance
to
hire
of
suitable
interrogators, insufficiently supervised CACI employees, ignored
reports of abuse, and attempted to “cover up” the misconduct.
The plaintiffs further allege that CACI’s site manager at the
Abu
Ghraib
reports
that
prison,
Daniel
“raised
Porvaznik,
concerns
of
reviewed
potential
interrogation
abuse”
by
CACI
employees, established “daily contact with CACI [] in the United
States,”
CACI’s
and
submitted
executive
team
reports
in
the
that
were
United
reviewed
States
“to
weekly
assess
by
the
company’s overall worldwide business situation.”
The plaintiffs
also
Mudd
claim
that
CACI
vice-president
Chuck
traveled
“regularly” to Iraq to become familiar with the interrogation
operation at Abu Ghraib.
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In addition, the plaintiffs allege that, despite troubling
reports
from
investigate
CACI
or
to
employees,
report
CACI
management
accusations
of
failed
wrongdoing
to
and
repeatedly denied that any CACI employees had engaged in abusive
conduct.
Also,
according
to
the
complaint,
CACI
management
The present litigation began with a civil action filed in
June 2008 by plaintiff Suhail Najim Abdullah Al Shimari (Al
Shimari) against CACI, CACI International, former CACI employee
Timothy
Dugan,
contractor.
and
L-3
Services,
Inc.,
another
government
The action originally was filed in the Southern
District of Ohio, where defendant Timothy Dugan resided.
complaint,
Al
Shimari
alleged
claims
under
the
In the
Alien
Tort
Statute (ATS), 28 U.S.C. § 1350, including claims of war crimes,
torture,
and
cruel,
inhuman,
(collectively, the ATS claims).
numerous
common
law
claims,
or
degrading
treatment
The complaint also contained
including
claims
of
assault
and
battery, sexual assault and battery, intentional and negligent
infliction
of
emotional
distress,
and
negligent
hiring
and
training (collectively, the common law tort claims).
In August 2008, Al Shimari’s action was transferred to the
Eastern District of Virginia, where the corporate headquarters
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CACI
and
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CACI
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International
are
located.
The
following
month, Al Shimari submitted an amended complaint that included
the
similar
claims
of
three
other
plaintiffs,
namely,
Taha
Yaseen Arraq Rashid, Salah Hasan Nusaif Al-Ejaili, and Asa’ad
Hamza Hanfoosh Al-Zuba’e 3 (collectively, the Rashid plaintiffs).
The amended complaint also identified the names of three CACI
employees who allegedly “directed and caused some of the most
egregious [acts of] torture and abuse at Abu Ghraib,” which
information
was
based
on
post-conviction
testimony
and
statements given by military personnel who had been prosecuted
for their misconduct.
In
October
2008,
the
defendants
moved
to
dismiss
the
amended complaint on numerous grounds, including the political
question
doctrine,
federal
preemption,
derivative
sovereign
immunity, and lack of subject matter jurisdiction under the ATS.
The district court denied the defendants’ motion and held that
the
plaintiffs’
allegations
did
question.
However,
the
jurisdiction
over
plaintiffs’
novelty
of
the
asserting
such
court
claims
3
not
present
concluded
ATS
claims
against
that
a
political
it
because
private
lacked
of
parties
the
as
We note that various spellings of the name of one of the
plaintiffs, Asa’ad Hamza Hanfoosh Al-Zuba’e, appear in documents
filed with the district court and in the parties’ appellate
briefs. For the purposes of this opinion, we adopt the spelling
that appears on the face of the plaintiffs’ third amended
complaint and in the plaintiffs’ opening brief.
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opposed to state actors, and indicated that those claims could
only proceed under diversity or federal question jurisdiction
rather than under the ATS.
CACI filed an interlocutory appeal
of the district court’s decision.
On
appeal,
a
panel
of
this
Court
concluded
that
the
district court erred in permitting the plaintiffs’ claims to
proceed because they were preempted by federal law under the
Supreme Court’s reasoning in Boyle v. United Technologies Corp.,
487 U.S. 500 (1988).
Al Shimari v. CACI Int’l, Inc., 658 F.3d
413 (4th Cir. 2011), vacated, 679 F.3d 205 (4th Cir. 2012) (en
banc).
However, after granting the plaintiffs’ petition for
rehearing en banc, this Court vacated the panel’s decision and
dismissed the defendants’ interlocutory appeal.
See Al Shimari
v. CACI Int’l, Inc., 679 F.3d 205 (4th Cir. 2012) (en banc).
Our en banc decision was based on the conclusion that we
lacked
appellate
jurisdiction
because
the
district
court’s
rulings were not appealable under the collateral order doctrine
articulated
by
the
Supreme
Court
in
Cohen
Industrial Loan Corp., 337 U.S. 541 (1949).
F.3d at 212-13.
v.
Beneficial
See Al Shimari, 679
We observed that a denial of a motion to
dismiss on political question grounds does not itself constitute
an immediately appealable collateral order.
also
explained
appellate
that
we
jurisdiction
were
unable
because
12
there
to
Id. at 215.
exercise
was
no
We
“pendent”
independent
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jurisdictional
basis
for
the
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appeal.
See
id.
at
210,
224
(rejecting existence of an independent basis for jurisdiction by
virtue
under
of
the
Coleman
Johnson,
100
activities”
defendants
v.
asserting
Tennessee,
U.S.
158
exception
97
U.S.
(1879);
to
the
the
“law-of-war
509
(1878),
preemption
Federal
by
Tort
defense”
and
the
Dow
v.
“combatant
Claims
Act,
as
recognized by Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009);
or
absolute
official
immunity
under
Mangold
v.
Analytic
Services, Inc., 77 F.3d 1442 (4th Cir. 1996)).
The case was returned to the district court, which entered
a number of orders that are relevant to this appeal.
First, the
district court reinstated the plaintiffs’ ATS claims, observing
that
“a
growing
body
of
law . . . suggests
that
plaintiffs’
claims . . . are within the purview of international law.”
The
court dismissed some of the plaintiffs’ claims as insufficiently
pleaded, but permitted the plaintiffs to amend their pleadings
to
allege
military.
a
conspiracy
The
court
between
also
CACI
and
the
United
dismissed
the
Rashid
States
plaintiffs’
common law tort claims with prejudice, concluding that Virginia
law applied to the common law claims and that those claims were
barred by the applicable statute of limitations and by a recent
decision of the Supreme Court of Virginia holding that equitable
tolling was unavailable under Virginia law.
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The plaintiffs filed a third amended complaint against CACI
only, which contained all four plaintiffs’ ATS claims and only
plaintiff Al Shimari’s common law tort claims.
discovery
in
the
case
expired
in
April
The deadline for
2013.
However,
the
record reflects that only a limited amount of information was
obtained during discovery.
Three of the four plaintiffs did not
give deposition testimony in the case.
appear
to
former
have
been
interrogators
taken
of
any
at
Abu
Also, no depositions
individuals
Ghraib,
who
served
including
the
as
CACI
interrogators who were identified specifically by the plaintiffs
as participants in the alleged abuse.
Within weeks of the close of discovery, the Supreme Court
issued its decision in Kiobel v. Royal Dutch Petroleum Co., 133
S. Ct. 1659 (2013).
In the majority opinion in that case, the
Court discussed limitations on the scope of ATS jurisdiction
imposed by a canon of statutory interpretation known as the
presumption against extraterritorial application.
Id.
Based on
the decision in Kiobel, the district court dismissed all four
plaintiffs’ ATS claims, concluding that the court “lack[ed] ATS
jurisdiction
rise
to
over
their
Plaintiffs’
tort
claims
claims
occurred
because
the
exclusively
acts
in
giving
Iraq,
a
foreign sovereign.”
The district court also dismissed Al Shimari’s remaining
common
law
tort
claims,
holding
14
that
governing
Iraqi
law
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promulgated
by
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the
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Coalition
Provisional
(CPA) 4
Authority
precluded imposition of liability on the defendants, and awarded
CACI $13,731.61 in costs as the prevailing party in the civil
action.
The plaintiffs timely appealed the district court’s
entry of final judgment with respect to all four plaintiffs’ ATS
and common law claims, as well as the district court’s taxation
of costs against the plaintiffs.
II.
We
address
jurisdiction.
CACI’s
two
Because
challenges
the
to
district
our
court
subject
matter
dismissed
the
plaintiffs’ claims under the ATS for lack of jurisdiction, we
first consider the jurisdictional scope of the ATS and whether
the plaintiffs’ ATS claims fall within the reach of the statute.
Based on our conclusion that the plaintiffs’ ATS claims are
within the statute’s reach, we also address whether those claims
or
the
plaintiffs’
common
law
tort
claims
raise
any
nonjusticiable political questions.
4
The CPA was a temporary governing body that was created by
U.S. Army General Tommy Franks, the Commander of Coalition
Forces, and recognized by a United Nations Security Council
resolution.
See, e.g., U.S. ex rel. DRC, Inc. v. Custer
Battles, LLC, 562 F.3d 295, 297 (4th Cir. 2009).
The CPA
governed Iraq from May 2003 to June 2004, when governing
authority passed to the Interim Government of Iraq. Id. at 298.
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A.
The plaintiffs seek to impose liability on CACI for alleged
violations of international law, including torture.
They assert
that the claimed violations fall within the jurisdictional scope
of the ATS, which provides that “[t]he district courts shall
have original jurisdiction of any civil action by an alien for a
tort only, committed in violation of the law of nations or a
treaty of the United States.”
28 U.S.C. § 1350.
The ATS, which
was
Judiciary
1789,
created
as
part
of
the
Act
of
enables
federal courts to consider a limited category of claims that are
defined by the law of nations.
Sosa v. Alvarez-Machain, 542
U.S. 692, 712, 724-25 (2004).
The international law violations that may be asserted under
the
ATS
must
be
sufficiently
definite
in
their
content
and
acceptance among civilized nations that they reflect “historical
paradigms”
enacted.
that
were
Id. at 732.
familiar
at
the
time
that
the
ATS
was
Paradigmatic violations of the law of
nations that were “probably on [the] minds” of the drafters of
the ATS include “violation of safe conducts, infringement of the
rights of ambassadors, and piracy.”
720.
Id. at 715; see also id. at
The Supreme Court also has suggested that the prohibition
against torture exemplifies a norm that is “specific, universal,
and obligatory.”
Kiobel, 133 S. Ct. at 1665 (citation omitted);
see also Filartiga v. Pena-Irala, 630 F.2d 876, 884-87 (2d Cir.
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1980) (holding that “official torture is now prohibited by the
law
of
nations”
and
that
the
federal
ATS
courts
concerning
may
such
exercise
jurisdiction
under
international
violations).
Indeed, in the present case, the district court
held that the plaintiffs’ ATS claims for torture, war crimes,
and cruel, inhuman, or degrading treatment alleged sufficiently
definite and universal violations of international law.
We emphasize, however, that we do not have before us the
question
whether
established
international
jurisdiction
the
claims
law. 5
under
plaintiffs
under
the
Instead,
the
ATS,
sufficiently
ATS
we
and
have
alleging
address
decide
our
stated
violations
subject
whether
the
or
of
matter
district
court erred in holding that the ATS does not provide a cause of
action for tortious conduct occurring outside the United States.
We begin by observing that the ATS is a jurisdictional
statute that addresses “the power of the courts to entertain
cases concerned with a certain subject,” and does not authorize
the courts to “mold substantive law.”
Sosa, 542 U.S. at 713-14;
see also id. at 712 (stating that “the statute is in terms only
jurisdictional”); id. at 717 (comparing the ATS to other grants
of original jurisdiction in the Constitution and the Judiciary
5
We also do not have before us the question whether a
corporation can be held liable for the tortious conduct of its
employees constituting international law violations under the
ATS.
17
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Act
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of
Filed: 06/30/2014
1789);
jurisdictional
id.
at
statute
724
Pg: 18 of 48
(stating
creating
no
that
new
the
causes
ATS
of
“is
a
action”).
Thus, the ATS confers jurisdiction on the district courts to
consider certain types of tort claims asserted by aliens based
on alleged violations of the law of nations, but does not create
any particular causes of action.
See Kiobel, 133 S. Ct. at
1663; Sosa, 542 U.S. at 712.
In Kiobel, the Supreme Court considered “whether a claim
[brought
under
the
ATS]
may
reach
territory of a foreign sovereign.”
case,
Nigerian
nationals
(the
conduct
occurring
133 S. Ct. at 1664.
petitioners),
who
in
the
In that
became
legal
residents of the United States after being granted political
asylum,
brought
tort
claims
under
the
British, Dutch, and Nigerian corporations.
ATS
against
certain
Id. at 1662-63.
In
their complaint, the petitioners contended that the corporate
defendants violated the law of nations by aiding and abetting
atrocities committed by Nigerian military and police forces, 6 in
providing those forces with food, transportation, compensation,
and access to property.
Id. at 1662-63.
All the atrocities were alleged to have been committed in
Nigeria, and it was undisputed that none of the conduct alleged
6
The petitioners alleged that Nigerian police and military
forces were responsible for “beating, raping, killing, and
arresting residents and destroying or looting property.”
Kiobel, 133 S. Ct. at 1662.
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in the complaint occurred within the territory of the United
States.
Id. at 1662-63.
Moreover, none of the defendants had
engaged in any activities in the United States that appeared
relevant to the claimed tortious acts that occurred in Nigeria.
The ATS claims’ only connections to the territory of the United
States consisted of the foreign corporate defendants’ listings
on the New York Stock Exchange and their affiliation with a
public relations office in New York City.
Id. at 1677 (Breyer,
J., concurring in the judgment).
The Supreme Court held that the petitioners’ ATS claims
were barred.
conclusion,
underlying
Id. at 1669 (majority opinion).
the
an
Court
primarily
established
canon
relied
of
In reaching this
on
the
statutory
principles
interpretation,
which raises a presumption against extraterritorial application
of
acts
against
1669.
of
Congress
(“the
extraterritorial
presumption,”
application”).
or
“the
See
id.
presumption
at
1664-65,
The presumption reflects the “longstanding principle of
American law that legislation of Congress, unless a contrary
intent appears, is meant to apply only within the territorial
jurisdiction of the United States” because “Congress ordinarily
legislates
with
respect
to
domestic,
not
foreign
matters.”
Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 255 (2010)
(citations and internal quotation marks omitted).
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The Supreme Court explained that the principles underlying
the presumption restrain courts in their consideration of causes
of action that may be brought under the ATS.
at 1664.
Kiobel, 133 S. Ct.
Those principles reflect “foreign policy concerns”
arising from potential “unintended clashes between our laws and
those
of
discord,”
other
and
nations
from
which
“the
could
danger
result
of
in
international
unwarranted
interference in the conduct of foreign policy.”
judicial
Id. (citation
omitted).
Under the presumption, “[w]hen a statute gives no clear
indication of an extraterritorial application, it has none[.]”
Id. (quoting Morrison, 561 U.S. at 255).
After considering the
text of the ATS, the Court held in Kiobel that nothing in the
statutory language provided a clear indication that the statute
was intended to have extraterritorial reach.
Court
concluded
that
although
Id. at 1669.
“Congress,
even
in
The
a
jurisdictional provision, can indicate that it intends federal
law to apply to conduct occurring abroad,” Congress failed to do
so when it enacted the ATS.
Id. at 1665.
Thereafter, the
Supreme Court held that the “petitioners’ case seeking relief
for
violations
of
the
United States is barred.”
Crucially,
however,
law
of
nations
occurring
outside
the
Id. at 1669.
the
Court
explained
its
holding
by
stating that “[o]n these facts, all the relevant conduct took
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place outside the United States.”
Id.
The Court elaborated
that “even where the claims touch and concern the territory of
the United States, they must do so with sufficient force to
displace the presumption against extraterritorial application.”
Id.
And, in a reference to the fact that the petitioners had
not alleged any connection with the territory of the United
States other than the physical presence of the foreign corporate
defendants, the Court explained that “[c]orporations are often
present in many countries, and it would reach too far to say
that mere corporate presence suffices.”
Id.
We observe that the Supreme Court used the phrase “relevant
conduct” to frame its “touch and concern” inquiry, but never
defined that term.
Under the facts presented, there was no need
to do so because all the conduct underlying the petitioners’
claims occurred outside United States territory.
We also note
that the Court broadly stated that the “claims,” rather than the
alleged tortious conduct, must touch and concern United States
territory
with
sufficient
force,
suggesting
that
courts
must
consider all the facts that give rise to ATS claims, including
the parties’ identities and their relationship to the causes of
action.
Id.; see, e.g., Black’s Law Dictionary 281 (9th ed.
2009) (defining “claim” as the “aggregate of operative facts
giving rise to a right enforceable by a court”).
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The
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Court’s
happenstance,
as
choice
of
Pg: 22 of 48
such
illustrated
by
broad
the
terminology
opinions
Justices who offered alternative views.
of
was
not
concurring
For example, Justice
Alito, in a concurring opinion in which Justice Thomas joined,
advocated a “broader” view of the presumption’s effect on ATS
jurisdiction, which would bar an ATS action “unless the domestic
conduct is sufficient to violate an international law norm” that
is sufficiently definite and accepted among civilized nations.
Kiobel, 133 S. Ct. at 1670 (Alito, J., concurring).
Under the
standard proposed by Justice Alito, courts could consider only
the
domestic
tortious
conduct
of
the
defendants.
Such
an
analysis is far more circumscribed than the majority opinion’s
requirement that “the claims touch and concern the territory of
the United States . . . with sufficient force to displace the
presumption against extraterritorial application.”
Id. at 1669
(majority opinion).
The “touch and concern” language set forth in the majority
opinion
contemplates
that
courts
will
apply
a
fact-based
analysis to determine whether particular ATS claims displace the
presumption against extraterritorial application.
In an opinion
concurring in the judgment, Justice Breyer, with whom Justice
Ginsburg,
Justice
Sotomayor,
and
Justice
Kagan
joined,
would
have allowed jurisdiction whenever: “(1) the alleged tort occurs
on American soil, (2) the defendant is an American national, or
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(3) the defendant’s conduct substantially and adversely affects
an important American national interest.”
J.,
concurring
in
the
judgment).
Id. at 1674 (Breyer,
And,
as
Justice
Kennedy
observed in his concurring opinion, the Supreme Court evidently
left unanswered “significant questions regarding the reach and
interpretation of the Alien Tort Statute” that “may require some
further
elaboration
implementation”
of
and
the
explanation”
presumption
the
cases
in
of
that
“proper
are
not
“covered . . . by the reasoning and holding of [Kiobel].”
Id.
at 1669 (Kennedy, J., concurring).
In the present case, the plaintiffs argue that based on
Kiobel, the ATS provides jurisdiction for claims that “touch and
concern”
United
States
territory
displace” the presumption.
with
“sufficient
force
See id. (majority opinion).
to
The
plaintiffs contend that their claims’ substantial connections to
United States territory are sufficient to rebut the presumption.
In response, the defendants argue that, under the decision
in
Kiobel,
the
ATS
does
not
under
tortious conduct occurring abroad.
any
circumstances
reach
The defendants maintain that
the sole material consideration before us is the fact that the
plaintiffs’
claims
allege
extraterritorial
tortious
conduct,
which subjects their claims to the same fatal outcome as those
in Kiobel.
We disagree with the defendants’ argument, which
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essentially advances the view expressed by Justices Alito and
Thomas in their separate opinion in Kiobel.
Because five justices, including Justice Kennedy, joined in
the
majority’s
rationale
extraterritorial
applying
application,
calculus that we apply here.
the
the
presumption
presumption
is
against
part
of
the
However, the clear implication of
the Court’s “touch and concern” language is that courts should
not assume that the presumption categorically bars cases that
manifest a close connection to United States territory.
the
“touch
and
concern”
language,
a
fact-based
Under
analysis
is
required in such cases to determine whether courts may exercise
jurisdiction
presumption
over
certain
against
ATS
claims.
extraterritorial
Accordingly,
application
bars
the
the
exercise of subject matter jurisdiction over the plaintiffs’ ATS
claims
unless
the
“relevant
conduct”
alleged
in
the
claims
“touch[es] and concern[s] the territory of the United States
with sufficient force to displace the presumption . . . .”
133
S. Ct. at 1669.
In Kiobel, the Court’s observation that all the “relevant
conduct”
occurred
abroad
reflected
those
claims’
extremely
attenuated connection to United States territory, which amounted
to “mere corporate presence.”
to
the
territory
of
the
Indeed, the only facts relating
United
States
were
the
foreign
corporations’ public relations office in New York City and their
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listings
on
Filed: 06/30/2014
the
New
York
Pg: 25 of 48
Stock
Exchange.
Because
the
petitioners in Kiobel were unable to point to any “relevant
conduct” in their claims that occurred in the territory of the
United States, the presumption was conclusive when applied to
the facts presented.
In the present case, however, the issue is not as easily
resolved.
The plaintiffs’ claims reflect extensive “relevant
conduct” in United States territory, in contrast to the “mere
presence” of foreign corporations that was deemed insufficient
in Kiobel.
When a claim’s substantial ties to United States
territory include the performance of a contract executed by a
United States corporation with the United States government, a
more
nuanced
presumption
analysis
has
been
is
required
displaced.
to
In
determine
such
cases,
whether
it
is
the
not
sufficient merely to say that because the actual injuries were
inflicted abroad, the claims do not touch and concern United
States territory.
Here,
the
plaintiffs’
claims
allege
acts
of
torture
committed by United States citizens who were employed by an
American
located
occurred
corporation,
in
at
Fairfax
a
CACI,
County,
military
which
has
Virginia.
facility
government personnel.
25
corporate
The
operated
headquarters
alleged
by
United
torture
States
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In addition, the employees who allegedly participated in
the acts of torture were hired by CACI in the United States to
fulfill the terms of a contract that CACI executed with the
United States Department of the Interior.
CACI
and
the
Department
of
the
The contract between
Interior
was
issued
by
a
government office in Arizona, and CACI was authorized to collect
payments by mailing invoices to government accounting offices in
Colorado.
were
Under the terms of the contract, CACI interrogators
required
to
obtain
security
clearances
from
the
United
States Department of Defense.
Finally, the allegations are not confined to the assertion
that CACI’s employees participated directly in acts of torture
committed at the Abu Ghraib prison.
The plaintiffs also allege
that CACI’s managers located in the United States were aware of
reports
of
misconduct
abroad,
attempted
to
“cover
up”
the
misconduct, and “implicitly, if not expressly, encouraged” it.
These ties to the territory of the United States are far
greater than those considered recently by the Second Circuit in
Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013).
In that
case, the Second Circuit declined to extend ATS jurisdiction to
claims involving foreign conduct by South African subsidiaries
of American corporations.
Balintulo
alleged
that
See id. at 189-94.
those
corporations
The plaintiffs in
“s[old]
cars
and
computers to the South African government, thus facilitating the
26
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apartheid
Filed: 06/30/2014
regime’s
injustices,
innumerable
including
killings.”
rape,
Id. at 179-80.
Pg: 27 of 48
race-based
torture,
depredations
and
and
extrajudicial
Interpreting the holding of Kiobel
to stand for the proposition that “claims under the ATS cannot
be brought for violations of the law of nations occurring within
the territory of a sovereign other than the United States,” id.
at 189 (citing Kiobel, 133 S. Ct. at 1662, 1668-69), the Second
Circuit construed the Court’s “touch and concern” language as
impacting the exercise of jurisdiction only “when some of the
relevant
conduct
occurs
in
the
United
States.”
Id.
at
191
(footnote omitted) (emphasis in original); see also Chowdhury v.
Worldtel Bangl. Holding, Ltd., 746 F.3d 42, 45-46, 49-50 (2d
Cir. 2014) (applying Kiobel to foreclose jurisdiction over ATS
claims
filed
by
a
Bangladeshi
plaintiff
who
allegedly
was
detained and tortured by the Bangladesh National Police at the
direction of his Bangladeshi business partner).
Although the “touch and concern” language in Kiobel may be
explained in greater detail in future Supreme Court decisions,
we
conclude
federal
that
courts
this
when
ATS
United States territory.
we
cannot
simply
decline
because
it
language
to
does
claims
provides
involve
current
guidance
substantial
ties
to
to
We have such a case before us now, and
consider
not
the
state
analysis.
27
a
Supreme
precise
Court’s
guidance
formula
for
our
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Applying this guidance, we conclude that the ATS claims’
connection to the territory of the United States and CACI’s
relevant conduct in the United States require a different result
than that reached in Kiobel.
In its decision in Morrison, the
Supreme Court emphasized that although the presumption is no
“timid sentinel,” its proper application “often[] is not selfevidently
dispositive”
U.S. at 266.
the
“touch
and
“requires
further
analysis.”
561
We have undertaken that analysis here, employing
and
concern”
inquiry
articulated
in
Kiobel,
by
considering a broader range of facts than the location where the
plaintiffs actually sustained their injuries.
Indeed,
presumption
we
to
observe
bar
that
these
ATS
purposes of the presumption.
against
extraterritorial
mechanically
claims
would
applying
not
the
advance
the
A basic premise of the presumption
application
is
that
United
States
courts must be wary of “international discord” resulting from
“unintended
nations.”
clashes
between
our
laws
and
those
of
other
Kiobel, 133 S. Ct. at 1664 (citation omitted).
In
the present case, however, the plaintiffs seek to enforce the
customary
law
of
nations
through
a
jurisdictional
vehicle
provided under United States law, the ATS, rather than a federal
statute that itself details conduct to be regulated or enforced.
Thus,
any
substantive
norm
enforced
through
an
ATS
claim
necessarily is recognized by other nations as being actionable.
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Moreover,
Filed: 06/30/2014
this
case
does
not
Pg: 29 of 48
present
any
potential
problems
associated with bringing foreign nationals into United States
courts to answer for conduct committed abroad, given that the
defendants are United States citizens.
Cf. Sexual Minorities
Uganda v. Lively, 960 F. Supp. 2d 304, 322-24 (D. Mass. 2013)
(holding that Kiobel did not bar ATS claims against an American
citizen, in part because “[t]his is not a case where a foreign
national is being hailed into an unfamiliar court to defend
himself”).
We
likewise
note
that
further
litigation
of
these
ATS
claims will not require “unwarranted judicial interference in
the conduct of foreign policy.”
Kiobel, 133 S. Ct. at 1664.
The political branches already have indicated that the United
States will not tolerate acts of torture, whether committed by
United States citizens or by foreign nationals.
The plaintiffs do not appear to have access to federal
courts under the Torture Victim Protection Act of 1991 (TVPA),
presumably because they did not suffer injury “under actual or
apparent
authority,
nation . . . .”
Pub.
or
L.
color
No.
of
law,
102-256,
of
106
following 28 U.S.C. § 1350 (emphasis added).
TVPA’s
broad
prohibition
against
torture
any
Stat.
foreign
73,
note
Nevertheless, the
reflects
Congress’s
recognition of a “distinct interest in preventing the United
States from becoming a safe harbor (free of civil as well as
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criminal liability) for a torturer or other common enemy of
mankind.”
Kiobel, 133 S. Ct. at 1671 (Breyer, J., concurring in
the judgment).
Congress
has
penalties
for
This conclusion is reinforced by the fact that
authorized
acts
nationals abroad.
of
the
imposition
torture
of
committed
severe
by
See 18 U.S.C. § 2340A.
criminal
United
States
The Supreme Court
certainly was aware of these civil and criminal statutes when it
articulated its “touch and concern” language in Kiobel. 7
See
Kiobel, 133 S. Ct. at 1669 (Kennedy, J., concurring) (predicting
that
“[o]ther
cases
may
arise
with
allegations
of
serious
violations of international law principles protecting persons”
that are “covered neither by the TVPA nor by the reasoning and
holding of today’s case”).
We
conclude
concern”
force
the
to
application
that
the
territory
displace
based
of
the
on:
plaintiffs’
ATS
the
States
United
presumption
(1)
CACI’s
7
claims
against
status
as
with
“touch
and
sufficient
extraterritorial
a
United
States
We also note that ATS jurisdiction is not precluded by the
fact that the alleged conduct occurred while the plaintiffs in
this case were detained in the custody of the United States
military.
In Rasul v. Bush, the Supreme Court considered this
issue with regard to detainees at Guantanamo Bay, Cuba, where
the United States maintains a Naval Base under a treaty and a
long-term lease with the government of Cuba. See 542 U.S. 466,
471 (2004).
There, briefly addressing the jurisdiction of
federal courts to consider the petitioners’ ATS claims, the
Court stated that “nothing . . . categorically excludes aliens
detained in military custody outside the United States from
[asserting an ATS claim] in U.S. courts.” Id. at 484.
30
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corporation;
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(2)
the
United
Pg: 31 of 48
States
citizenship
of
CACI’s
employees, upon whose conduct the ATS claims are based; (3) the
facts in the record showing that CACI’s contract to perform
interrogation services in Iraq was issued in the United States
by the United States Department of the Interior, and that the
contract required CACI’s employees to obtain security clearances
from
the
United
States
Department
of
Defense;
(4)
the
allegations that CACI’s managers in the United States gave tacit
approval to the acts of torture committed by CACI employees at
the Abu Ghraib prison, attempted to “cover up” the misconduct,
and “implicitly, if not expressly, encouraged” it; and (5) the
expressed intent of Congress, through enactment of the TVPA and
18 U.S.C. § 2340A, to provide aliens access to United States
courts and to hold citizens of the United States accountable for
acts of torture committed abroad. 8
Accordingly, we hold that the
district court erred in concluding that it lacked subject matter
jurisdiction under the ATS, and we vacate the district court’s
judgment dismissing the plaintiffs’ ATS claims on that basis.
8
Because of our holding that the plaintiffs’ ATS claims
“touch and concern” the territory of the United States with
sufficient
force
to
displace
the
presumption
against
extraterritorial
application,
we
need
not
address
the
plaintiffs’ alternative argument that the relevant conduct did
not occur within the territory of a foreign sovereign because
the Abu Ghraib prison constituted the “de facto territory” of
the United States.
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B.
Our decision regarding the ATS answers only the first issue
of subject matter jurisdiction presented in this appeal.
also
must
consider
whether
the
record
before
us
We
adequately
supports a finding that litigation of the plaintiffs’ ATS claims
and common law tort claims will avoid any “political questions”
that would place those claims outside the jurisdiction of the
federal courts.
The
political
question
doctrine
is
a
“function
of
the
separation of powers,” and prevents federal courts from deciding
issues that the Constitution assigns to the political branches,
or that the judiciary is ill-equipped to address.
Carr,
369
U.S.
186,
217
(1982);
see
also
Tiffany
Baker v.
v.
United
States, 931 F.2d 271, 276 (4th Cir. 1991) (stating that the
constitutional separation of powers “requires that we examine
the
relationship
between
the
judiciary
and
the
coordinate
branches of the federal government cognizant of the limits upon
judicial power”).
The Supreme Court has defined a political
question by reference to whether a case presents any of the
following
attributes:
(1)
“a
textually
demonstrable
constitutional commitment of the issue to a coordinate political
department;”
(2)
“a
lack
of
judicially
discoverable
and
manageable standards for resolving it;” (3) “the impossibility
of deciding without an initial policy determination of a kind
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clearly for nonjudicial discretion;” (4) “the impossibility of a
court’s
undertaking
independent
resolution
without
expressing
lack of the respect due coordinate branches of government;” (5)
“an
unusual
decision
need
for
already
embarrassment
from
unquestioning
made;”
or
In
considering
subject
matter
Procedure
these
a
court
“the
to
a
political
potentiality
pronouncements
by
of
various
Baker, 369 U.S. at 217.
issues
jurisdiction
12(b)(1),
(6)
multifarious
departments on one question.”
adherence
when
under
may
a
defendant
Federal
evaluate
Rule
the
challenges
of
Civil
pleadings
as
evidence on the issue and may consider other evidence in the
record “without converting the proceeding to one for summary
judgment.”
Cir.
Velasco v. Gov’t of Indon., 370 F.3d 392, 398 (4th
2004)
jurisdictional
(citation
facts
are
omitted).
inextricably
“However,
intertwined
when
with
the
those
central to the merits, the district court should resolve the
relevant factual disputes only after appropriate discovery.”
In
re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 334 (4th Cir. 2014)
(hereinafter Burn Pit) (quoting Kerns v. United States, 585 F.3d
187, 193 (4th Cir. 2009) (brackets and internal quotation marks
omitted)).
We
first
observe
that
CACI’s
position
asserting
the
presence of a political question was resolved by the district
court in the plaintiffs’ favor much earlier in this litigation.
33
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In March 2009, before any discovery had been conducted, CACI
challenged the court’s subject matter jurisdiction on political
question grounds, based on the allegations in the complaint.
At that time, the district court analyzed the six factors
set forth by the Supreme Court in Baker solely by reference to
the plaintiffs’ complaint, and rejected CACI’s jurisdictional
challenge.
The
court
concluded
that
the
case
was
not
“constitutionally committed” to the executive branch because the
case “challenges not the government itself or the adequacy of
official
government
policies,
but
the
conduct
contractors carrying on a business for profit.”
of
government
Next, the court
found that in view of the allegations of a conspiracy between
“low-level contractors and military personnel,” the court “could
analyze
this
low-level
without
policies
interrogation
conspiracy”
authorized
by
questioning
“top
military
the
and
government officials.”
The
district
“judicially
court
further
concluded
and
manageable
discoverable
evaluating
the
plaintiffs’
litigation
regarding
the
claims,
events
at
citing
Abu
that
there
were
standards”
for
other
Ghraib
“extensive”
prison,
the
availability of eyewitness testimony based on courts martial of
military personnel, and the limited nature of any classified
discovery material.
The court stated that “manageable judicial
standards are readily accessible through the discovery process,”
34
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and that the court “suspect[ed] that the contract [between CACI
and
the
government]
details
CACI’s
responsibilities
in
conducting the interrogations, outlines the applicable laws and
rules
that
CACI
personnel
are
bound
by,
and
sets
further
restrictions on the type of conduct permitted.”
The district court also noted that the process of reviewing
CACI’s conduct would not demonstrate a “lack of respect” for the
political branches, because “matters are not beyond the reach of
the judiciary simply because they touch upon war or foreign
affairs.”
without
The
the
court
need
for
found
policy
that
the
case
could
determinations
be
clearly
decided
requiring
“nonjudicial discretion,” see Baker, 369 U.S. at 217, stating
that “the policy determination central to this case has already
been made; this country does not condone torture, especially
when committed by its citizens.”
Finally, the court concluded
that consideration of the other Baker factors did not render the
case nonjusticiable, and held that the case did not present a
political question barring the exercise of its subject matter
jurisdiction.
Although
CACI
appealed
the
district
court’s
ruling
on
numerous bases, including justiciability, our conclusion that we
lacked
jurisdiction
collateral
order
over
doctrine
the
interlocutory
returned
the
case
appeal
to
under
the
the
district
court without a decision whether the case presented a political
35
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question.
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See Al Shimari, 679 F.3d at 224.
On remand, the
district court dismissed the plaintiffs’ ATS claims for lack of
jurisdiction under Kiobel, and also dismissed the plaintiffs’
remaining common law tort claims under Federal Rule of Civil
Procedure 12(b)(6).
In
this
appeal,
CACI
renews
its
political
question
challenge, contending that the treatment and interrogation of
detainees during war is a key component of national defense
considerations that are committed to the political branches of
government.
CACI also asserts that there are no judicially
discoverable standards for deciding intentional tort claims in
the context of a war zone, and that CACI interrogators were
performing a “common mission” with the military and were acting
under
direct
military
command
and
control.
CACI
further
maintains that most of the alleged forms of abuse at issue “were
approved by the Secretary of Defense and incorporated into rules
of engagement by military commanders at Abu Ghraib.”
CACI’s arguments are based on constitutional considerations
and factual assertions that are intertwined in many respects.
We begin our consideration of these arguments by recognizing
that “most military decisions” are matters “solely within the
purview of the executive branch,”
and
that
matters
the
to
Constitution
both
the
Taylor, 658 F.3d at 407 n.9,
delegates
executive
36
and
authority
legislative
over
military
branches
of
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government.
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Pg: 37 of 48
See Burn Pit, 744 F.3d at 334; Lebron v. Rumsfeld,
670 F.3d 540, 548 (4th Cir. 2012).
Nevertheless,
the
fact
that
a
military
contractor
was
acting pursuant to “orders of the military does not, in and of
itself, insulate the claim from judicial review.”
F.3d at 411.
Taylor, 658
Accordingly, before declaring such a case “to be
nonjusticiable,
a
analysis’
includes
that
court
must
the
undertake
‘a
litigation’s
discriminating
‘susceptibility
to
judicial handling in the light of its nature and posture in the
specific
case,
action.’”
and
of
the
possible
consequences
of
judicial
Lane v. Halliburton, 529 F.3d 548, 559 (5th Cir.
2008) (quoting Baker, 369 U.S. at 211-12).
Such an analysis
involves a “delicate exercise in constitutional interpretation.”
Baker, 369 U.S. at 211.
Importantly, in the present case, more than five years have
elapsed
since
the
district
court
determination of justiciability.
this
Court
has
formulated
a
rendered
its
initial
During the intervening period,
test
for
considering
whether
litigation involving the actions of certain types of government
contractors
doctrine.
is
justiciable
under
the
political
question
See Taylor, 658 F.3d at 411.
In our decision in Taylor, we adapted the Supreme Court’s
analysis in Baker to a particular subset of lawsuits, namely,
those
brought
against
government
37
contractors
who
perform
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services
for
(observing
Filed: 06/30/2014
the
that
military.
Taylor
Pg: 38 of 48
See
Burn
“adapted
Pit,
Baker
744
to
F.3d
the
at
334
government
contractor context through a new two-factor test”).
The factual
record in Taylor involved a soldier who was performing work on
an
electrical
box
at
electrocuted
when
activated
nearby
a
an
a
military
employee
base
of
generator
a
in
Iraq,
government
despite
was
contractor
instruction
from
Taylor, 658 F.3d at 404.
military personnel not to do so.
an
and
When
the soldier sued the military contractor for negligence, the
government
contractor
claimed
that
nonjusticiable political question.
the
case
presented
a
Id.
In analyzing the justiciability of the soldier’s negligence
claim,
we
recognized
the
need
to
“carefully
assess
the
relationship” between the military and the contractor, and to
“gauge the degree to which national defense interests may be
implicated in a judicial assessment” of the claim.
10.
We
distilled
the
six
Baker
factors
into
Id. at 409two
critical
components: (1) whether the government contractor was under the
“plenary” or “direct” control of the military; and (2) whether
national
defense
interests
were
“closely
intertwined”
with
military decisions governing the contractor’s conduct, such that
a
decision
on
the
merits
of
the
claim
“would
require
the
judiciary to question actual, sensitive judgments made by the
military.”
Id. at 411 (quotation omitted).
38
We noted that an
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affirmative answer to either of these questions will signal the
presence of a nonjusticiable political question.
See Burn Pit,
744 F.3d at 335 (stating that under Taylor, a formal “Bakerstyle analysis” is not necessary, and that “if a case satisfies
either
factor
[articulated
in
Taylor],
it
is
nonjusticiable
under the political question doctrine”).
We further explained in Taylor that, in conducting this
two-part inquiry, a court must “‘look beyond the complaint, and
consider how [the plaintiffs] might prove [their] claim[s] and
how [the contractor] would defend.”
(quoting
Lane,
529
F.3d
at
565)
Taylor, 658 F.3d at 409
(original
(alterations added) (emphasis in original).
brackets
omitted)
This determination
requires consideration of the facts alleged in the complaint,
facts developed through discovery or otherwise made a part of
the record in the case, and the legal theories on which the
parties will rely to prove their case.
In
operates
Taylor,
we
under
the
stated
plenary
that
“if
control
a
of
military
the
contractor
military,
the
contractor’s decisions may be considered as de facto military
decisions.”
658 F.3d at 410.
Based on the factual record
presented in that case, we concluded that the military did not
exercise “direct control” over the contractor because the record
showed that responsibility for the manner in which the job was
performed was delegated to the contractor.
39
Id. at 411.
In
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drawing this conclusion, we relied on the parties’ contract,
which recited that “[t]he contractor shall be responsible for
the
safety
of
employees
and
base
contractor
operations,”
and
exclusive
supervisory
authority
employees.”
that
camp
“the
residents
contractor
and
during
shall
all
have
responsibility
over
Id. at 411.
We contrasted these facts with those reviewed in Carmichael
v. Kellogg, Brown & Root Services, Inc., 572 F.3d 1271, 1275-79
(11th Cir. 2009), a case in which the plaintiff had sued a
military
contractor
for
negligence
resulting
from
injuries
sustained when the plaintiff’s husband, a sergeant in the United
States Army, was thrown from a vehicle in a military convoy that
was driven by the contractor’s employee.
In deciding whether
the case presented a political question, the Eleventh Circuit
observed that there was no indication in the record that the
contractor
had
any
role
in
making
decisions
movement of the military convoy vehicle.
regarding
Id. at 1282.
the
Thus,
the court held that the case was nonjusticiable, “[b]ecause the
circumstances
under
which
the
accident
took
place
were
so
thoroughly pervaded by military judgments and decisions, [and]
it
would
[either
be
impossible
party’s]
military
scrutiny.”
to
negligence
judgments
and
make
without
decisions
Id. at 1282-83.
any
determination
bringing
under
those
searching
regarding
essential
judicial
Because the facts in Taylor did not
40
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manifest such “direct control” over the contractor’s performance
of its duties, we resolved this factor in the plaintiff’s favor.
658 F.3d at 411.
Since our decision in Taylor, we have clarified that the
critical issue with respect to the question of “plenary” or
“direct” control is not whether the military “exercised some
level of oversight” over a contractor’s activities.
744 F.3d at 339.
Burn Pit,
Instead, a court must inquire whether the
military clearly “chose how to carry out these tasks,” rather
than giving the contractor discretion to determine the manner in
which the contractual duties would be performed.
Id. (emphasis
added); see also Harris v. Kellogg Brown & Root Servs., Inc.,
724 F.3d 458, 467 (3d Cir. 2013) (stating that plenary control
does not exist when the military “merely provides the contractor
with
general
contractor’s
guidelines
discretion”
that
because
can
be
satisfied
“contractor
at
actions
the
taken
within that discretion do not necessarily implicate unreviewable
military decisions”); McMahon v. Presidential Airways, Inc., 502
F.3d 1331, 1359-61 (11th Cir. 2007) (holding that a contract for
aviation
services
in
Afghanistan
did
not
manifest
sufficient
military control to present a political question because the
contractor retained authority over the type of plane, flight
path, and safety of the flight).
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The second Taylor factor concerns whether “a decision on
the merits . . . would require the judiciary to question actual,
sensitive judgments made by the military.”
412
(internal
quotation
marks
Taylor, 658 F.3d at
omitted).
In
analyzing
this
factor, a court must focus on the manner in which the plaintiffs
might attempt to prove their claims, and how the defendants are
likely
to
defend
Addressing
question
this
was
against
issue
in
presented
those
claims.
Taylor,
we
because
a
See
held
id.
that
military
a
at
409.
political
contractor’s
contributory negligence defense to the plaintiff’s common law
negligence claim “would invariably require the Court to decide
whether the Marines made a reasonable decision in seeking to
install the wiring box,” and would oblige the court to evaluate
the reasonableness of military decisions.
By
contrast,
contractor’s
in
“proximate
Burn
Pit
we
causation”
Id. at 411-12.
analyzed
defense,
a
in
military
which
the
contractor maintained that the plaintiffs’ alleged injuries were
caused by military decisions and conduct.
744 F.3d at 340.
After examining the record that the district court considered,
we
concluded
require
an
that
the
examination
contractor’s
of
the
causation
reasonableness
defense
of
would
military
decisions only if the case ultimately proceeded under the law of
a
state
having
a
proportional-liability
liability based on fault.
system
that
assigns
Id. at 340-41; see also Harris, 724
42
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F.3d at 463 (holding that the contractor’s assertion that the
military was a proximate cause of the alleged injury did not
present a political question under a joint-and-several liability
regime, and that even if proportional liability applied, the
plaintiffs
could
implicate
proceed
proportional
on
any
damages
liability);
Lane,
claim
529
that
F.3d
did
at
not
565-67
(concluding that the assertion of a causation defense to fraud
and negligence claims did not necessarily implicate a political
question).
In the present case, however, we do not have a factual
record
developed
by
the
district
court
like
the
records
considered in Taylor and in Burn Pit.
And, from our review of
the
to
record
before
us,
we
are
unable
determine
whether
a
political question exists at this stage of the litigation. 9
With respect to the first Taylor factor, the evidence in
the
record
military
is
inconclusive
personnel
actually
regarding
exercised
the
extent
control
to
which
over
CACI
employees in their performance of their interrogation functions.
CACI argues that military control is evidenced by the contract’s
9
We also observe that the United States has not sought to
intervene or file an amicus brief with respect to the present
appeal.
We note, however, that during earlier proceedings in
this case, the United States represented that “[t]he Court need
not resolve defendants’ political question arguments at this
stage of the litigation.” Brief for the United States as Amicus
Curiae, Al Shimari v. CACI Int’l, Inc., 679 F.3d 205 (4th Cir.
2012) (en banc) (Nos. 09-1335, 10-1891, 10-1921), at 9.
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that the abuse was intended to “soften up” the detainees for
later interrogations.
A
thorough
analysis
of
these
matters,
as
mandated
by
Taylor, cannot be achieved simply by reviewing the plaintiffs’
pleadings
and
the
limited
record
on
appeal,
but
also
will
require factual development of the record by the district court
and possibly additional jurisdictional discovery.
will
remand
consideration
this
with
case
to
respect
the
to
district
the
Taylor factor of “direct control.”
court
application
Therefore, we
for
of
further
the
first
See Burn Pit, 744 F.3d at
334 (noting that “when the jurisdictional facts are inextricably
intertwined with those central to the merits, the district court
should
resolve
the
relevant
factual
disputes
only
after
appropriate discovery”).
We reach a similar conclusion with respect to the second
Taylor factor, because the record does not reveal the defenses
that the defendants intend to employ with regard to the merits
of the plaintiffs’ claims.
Indeed, the district court has not
yet identified the precise elements that the plaintiffs will be
required
to
prove
in
their
international law violations.
ATS
claims
for
the
alleged
Thus, we are unable to assess
whether a decision on the merits would require the judiciary “to
question actual, sensitive judgments made by the military.”
Taylor, 658 F.3d at 411 (internal quotation marks omitted).
46
See
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Although the plaintiffs’ remaining common law tort claims
are premised on familiar causes of action, which the district
court
thoroughly
sufficiency
of
analyzed
those
in
claims
its
under
decision
Federal
regarding
Rule
of
the
Civil
Procedure 12(b)(6), we do not know the degree to which CACI’s
defenses to these claims might implicate any political questions
until the contours of all the plaintiffs’ claims are further
developed.
issues
We therefore refrain from reaching the additional
presented
on
appeal
regarding
whether
the
plaintiffs’
common law claims properly were dismissed under Rule 12(b)(6). 10
Based
resolved
on
on
the
the
issues
present
we
have
record,
we
identified
are
that
unable
to
cannot
perform
be
a
“discriminating analysis of the particular question posed, in
terms
of
the
history
of
its
management
by
the
political
branches, of its susceptibility to judicial handling . . . , and
of the possible consequences of judicial action.”
U.S. at 211-12.
Baker, 369
Accordingly, we vacate the district court’s
dismissal of all four plaintiffs’ common law tort claims, and
instruct the district court to reexamine the justiciability of
10
In remanding the plaintiffs’ common law claims for
further proceedings under Federal Rule of Civil Procedure
12(b)(1), we express no opinion regarding the correctness of the
district court’s dismissal of those claims under Federal Rule of
Civil Procedure 12(b)(6).
47
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the ATS claims and the common law tort claims before proceeding
further in the case.
III.
For these reasons, we vacate the district court’s judgment
and, consequently, the court’s award of costs, and remand all
the
plaintiffs’
claims
for
further
proceedings
in
accordance
with the principles expressed in this opinion.
VACATED AND REMANDED
48
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