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 AL-
ZUBA'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.
No. 13-2162
SUHAIL NAJIM ABDULLAH AL SHIMARI; TAHA YASEEN ARRAQ RASHID;
SALAH HASAN NUSAIF AL-EJAILI; ASA'AD HAMZA HANFOOSH AL-
ZUBA'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: June 30, 2014
2
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.
3
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 the district court erred in reaching a
contrary conclusion. Upon applying the fact-based 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.
4
plaintiffs’ claims “touch and 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 to detain various individuals, including criminals,
enemies of the provisional government, and other persons
selected for interrogation because they were thought to possess
information regarding Iraqi insurgents.
5
Due to a shortage of trained military interrogators, the
United States hired civilian contractors to interrogate
detainees at Abu Ghraib. During the time period relevant to
this civil action, those private interrogators were provided
exclusively by CACI Premier Technology, Inc. (CACI), a
corporation domiciled in the United States. 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 being “abhorrent” practices that “don't represent
America.” 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
6
Cong. (2004), and “urg[ing] that all individuals responsible for
such despicable acts be held accountable,” S. Res. 356, 108th
Cong. (2004). Investigations conducted by the Defense
Department concluded that CACI interrogators directed or
participated in some of the abuses, along with a number of
military personnel. 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.)
7
“minimize the risk of detection by nonparticipants” and to
“soften up” the detainees for later interrogation.
The plaintiffs allege that CACI employees “instigated,
directed, participated in, encouraged, and aided and abetted
conduct towards detainees that clearly violated the 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 provide interrogation-related services to the
military. This contract was not awarded by the Defense
Department or military sources, but by the Department of the
Interior (Interior Department). The contract, which was issued
by an Interior Department contracting officer in Arizona,
authorized CACI to collect payments in excess of $19 million by
mailing invoices to Interior Department accounting offices in
Colorado.
8
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 interrogation regulations and
procedures. The SOW stated that CACI would “provide
Interrogation Support Cells, as directed 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 plaintiffs allege that during CACI’s performance of
this contract, CACI’s managers failed to hire 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 prison, Daniel Porvaznik, reviewed interrogation
reports that “raised concerns of potential abuse” by CACI
employees, established “daily contact with CACI [] in the United
States,” and submitted reports that were reviewed weekly by
CACI’s executive team in the United States “to assess the
company’s overall worldwide business situation.” The plaintiffs
also claim that CACI vice-president Chuck Mudd traveled
“regularly” to Iraq to become familiar with the interrogation
operation at Abu Ghraib.
9
In addition, the plaintiffs allege that, despite troubling
reports from CACI employees, CACI management failed to
investigate or to report accusations of wrongdoing 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, and L-3 Services, Inc., another government
contractor. The action originally was filed in the Southern
District of Ohio, where defendant Timothy Dugan resided. In the
complaint, Al Shimari alleged claims under the Alien Tort
Statute (ATS), 28 U.S.C. § 1350, including claims of war crimes,
torture, and cruel, inhuman, or degrading treatment
(collectively, the ATS claims). The complaint also contained
numerous common law claims, 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
10
of CACI and CACI 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 not present a political
question. However, the court concluded that it lacked
jurisdiction over the plaintiffs’ ATS claims because of the
novelty of asserting such claims against private parties as
3
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.
11
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 v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949). See Al Shimari, 679
F.3d at 212-13. We observed that a denial of a motion to
dismiss on political question grounds does not itself constitute
an immediately appealable collateral order. Id. at 215. We
also explained that we were unable to exercise “pendent”
appellate jurisdiction because there was no independent
12
jurisdictional basis for the appeal. See id. at 210, 224
(rejecting existence of an independent basis for jurisdiction by
virtue of the defendants asserting the “law-of-war defense”
under Coleman v. Tennessee, 97 U.S. 509 (1878), and Dow v.
Johnson, 100 U.S. 158 (1879); preemption by the “combatant
activities” exception to the Federal Tort 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 a conspiracy between CACI and the United States
military. The court also dismissed the Rashid 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.
13
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. The deadline for
discovery in the case expired in April 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. Also, no depositions
appear to have been taken of any individuals who served as
former interrogators at Abu Ghraib, including the 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 over Plaintiffs’ claims because the acts giving
rise to their tort claims occurred exclusively in Iraq, a
foreign sovereign.”
The district court also dismissed Al Shimari’s remaining
common law tort claims, holding that governing Iraqi law
14
promulgated by the Coalition Provisional Authority (CPA) 4
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 CACI’s two challenges to our subject matter
jurisdiction. Because the district court 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.
15
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 created as part of the Judiciary Act of 1789, 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” that were familiar at the time that the ATS was
enacted. Id. at 732. 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.” Id. at 715; see also id. at
720. 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.
16
1980) (holding that “official torture is now prohibited by the
law of nations” and that federal courts may exercise
jurisdiction under the ATS concerning such 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 the plaintiffs sufficiently have stated or
established claims under the ATS alleging violations of
international law. 5 Instead, we address our subject matter
jurisdiction under the ATS, and decide whether the 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
Act of 1789); id. at 724 (stating that the ATS “is a
jurisdictional statute creating no new causes of 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 conduct occurring in the
territory of a foreign sovereign.” 133 S. Ct. at 1664. In that
case, Nigerian nationals (the petitioners), who became legal
residents of the United States after being granted political
asylum, brought tort claims under the ATS against certain
British, Dutch, and Nigerian corporations. 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.
18
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. Id. at 1669 (majority opinion). In reaching this
conclusion, the Court primarily relied on the principles
underlying an established canon of statutory interpretation,
which raises a presumption against extraterritorial application
of acts of Congress (“the presumption,” or “the presumption
against extraterritorial application”). See id. at 1664-65,
1669. 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).
19
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. Kiobel, 133 S. Ct.
at 1664. Those principles reflect “foreign policy concerns”
arising from potential “unintended clashes between our laws and
those of other nations which could result in international
discord,” and from “the danger of unwarranted judicial
interference in the conduct of foreign policy.” 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. Id. at 1669. The
Court concluded that although “Congress, even in 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 law of nations occurring outside the
United States is barred.” Id. at 1669.
Crucially, however, the Court explained its holding by
stating that “[o]n these facts, all the relevant conduct took
20
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”).
21
The Court’s choice of such broad terminology was not
happenstance, as illustrated by the opinions of concurring
Justices who offered alternative views. 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
22
(3) the defendant’s conduct substantially and adversely affects
an important American national interest.” Id. at 1674 (Breyer,
J., concurring in the judgment). 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 and explanation” of the “proper
implementation” of the presumption in cases that 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 with “sufficient force to
displace” the presumption. See id. (majority opinion). 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 any circumstances reach
tortious conduct occurring abroad. 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
23
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 applying the presumption against
extraterritorial application, the presumption is part of the
calculus that we apply here. 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. Under
the “touch and concern” language, a fact-based analysis is
required in such cases to determine whether courts may exercise
jurisdiction over certain ATS claims. Accordingly, the
presumption against extraterritorial application bars 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.” Indeed, the only facts relating
to the territory of the United States were the foreign
corporations’ public relations office in New York City and their
24
listings on the New York 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 analysis is required to determine whether the
presumption has been displaced. In such cases, it is 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 corporation, CACI, which has corporate headquarters
located in Fairfax County, Virginia. The alleged torture
occurred at a military facility operated by United States
government personnel.
25
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. The contract between
CACI and the Department of the 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. Under the terms of the contract, CACI interrogators
were 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. See id. at 189-94. The plaintiffs in
Balintulo alleged that those corporations “s[old] cars and
computers to the South African government, thus facilitating the
26
apartheid regime’s innumerable race-based depredations and
injustices, including rape, torture, and extrajudicial
killings.” Id. at 179-80. 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 that this language provides current guidance to
federal courts when ATS claims involve substantial ties to
United States territory. We have such a case before us now, and
we cannot decline to consider the Supreme Court’s guidance
simply because it does not state a precise formula for our
analysis.
27
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 self-
evidently dispositive” and “requires further analysis.” 561
U.S. at 266. We have undertaken that analysis here, employing
the “touch and concern” inquiry articulated in Kiobel, by
considering a broader range of facts than the location where the
plaintiffs actually sustained their injuries.
Indeed, we observe that mechanically applying the
presumption to bar these ATS claims would not advance the
purposes of the presumption. A basic premise of the presumption
against extraterritorial application is that United States
courts must be wary of “international discord” resulting from
“unintended clashes between our laws and those of other
nations.” 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.
28
Moreover, this case does not 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, or color of law, of any foreign
nation . . . .” Pub. L. No. 102-256, 106 Stat. 73, note
following 28 U.S.C. § 1350 (emphasis added). Nevertheless, the
TVPA’s broad prohibition against torture reflects Congress’s
recognition of a “distinct interest in preventing the United
States from becoming a safe harbor (free of civil as well as
29
criminal liability) for a torturer or other common enemy of
mankind.” Kiobel, 133 S. Ct. at 1671 (Breyer, J., concurring in
the judgment). This conclusion is reinforced by the fact that
Congress has authorized the imposition of severe criminal
penalties for acts of torture committed by United States
nationals abroad. See 18 U.S.C. § 2340A. 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 that the plaintiffs’ ATS claims “touch and
concern” the territory of the United States with sufficient
force to displace the presumption against extraterritorial
application based on: (1) CACI’s status as a United States
7
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
corporation; (2) the United 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.
31
B.
Our decision regarding the ATS answers only the first issue
of subject matter jurisdiction presented in this appeal. We
also must consider whether the record before us 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. Baker v.
Carr, 369 U.S. 186, 217 (1982); see also Tiffany 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
32
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 need for unquestioning adherence to a political
decision already made;” or (6) “the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.” Baker, 369 U.S. at 217.
In considering these issues when a defendant challenges
subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1), a court may evaluate the pleadings as
evidence on the issue and may consider other evidence in the
record “without converting the proceeding to one for summary
judgment.” Velasco v. Gov’t of Indon., 370 F.3d 392, 398 (4th
Cir. 2004) (citation omitted). “However, 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.” 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
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 of government
contractors carrying on a business for profit.” 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 conspiracy” without questioning the
interrogation policies authorized by “top military and
government officials.”
The district court further concluded that there were
“judicially discoverable and manageable standards” for
evaluating the plaintiffs’ claims, citing other “extensive”
litigation regarding the events at Abu Ghraib 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
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.” The court found that the case could be decided
without the need for policy determinations clearly 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 over the interlocutory appeal under the
collateral order doctrine returned the case to the district
court without a decision whether the case presented a political
35
question. 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,” Taylor, 658 F.3d at 407 n.9,
and that the Constitution delegates authority over military
matters to both the executive and legislative branches of
36
government. 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.” Taylor, 658
F.3d at 411. Accordingly, before declaring such a case “to be
nonjusticiable, a court must undertake ‘a discriminating
analysis’ that includes the litigation’s ‘susceptibility to
judicial handling in the light of its nature and posture in the
specific case, and of the possible consequences of judicial
action.’” 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 rendered its initial
determination of justiciability. During the intervening period,
this Court has formulated a test for considering whether
litigation involving the actions of certain types of government
contractors is justiciable under the political question
doctrine. 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 contractors who perform
37
services for the military. See Burn Pit, 744 F.3d at 334
(observing that Taylor “adapted Baker to the 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 a military base in Iraq, and was
electrocuted when an employee of a government contractor
activated a nearby generator despite an instruction from
military personnel not to do so. Taylor, 658 F.3d at 404. When
the soldier sued the military contractor for negligence, the
government contractor claimed that the case presented a
nonjusticiable political question. 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. Id. at 409-
10. We distilled the six Baker factors into two 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). We noted that an
38
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 “Baker-
style 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.” Taylor, 658 F.3d at 409
(quoting Lane, 529 F.3d at 565) (original brackets omitted)
(alterations added) (emphasis in original). 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 Taylor, we stated that “if a military contractor
operates under the plenary control of the 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. Id. at 411. In
39
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 camp residents during all
contractor operations,” and that “the contractor shall have
exclusive supervisory authority and responsibility over
employees.” 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 regarding the
movement of the military convoy vehicle. Id. at 1282. 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 be impossible to make any determination regarding
[either party’s] negligence without bringing those essential
military judgments and decisions under searching judicial
scrutiny.” Id. at 1282-83. Because the facts in Taylor did not
40
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. Burn Pit,
744 F.3d at 339. 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 guidelines that can be satisfied at the
contractor’s discretion” because “contractor actions 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).
41
The second Taylor factor concerns whether “a decision on
the merits . . . would require the judiciary to question actual,
sensitive judgments made by the military.” Taylor, 658 F.3d at
412 (internal quotation marks 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 against those claims. See id. at 409.
Addressing this issue in Taylor, we held that a political
question was presented because a military 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. Id. at 411-12.
By contrast, in Burn Pit we analyzed a military
contractor’s “proximate causation” defense, in 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 that the contractor’s causation defense would
require an examination of the reasonableness of military
decisions only if the case ultimately proceeded under the law of
a state having a proportional-liability system that assigns
liability based on fault. Id. at 340-41; see also Harris, 724
42
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 proceed on any damages claim that did not
implicate proportional liability); Lane, 529 F.3d at 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 record before us, we are unable to 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 is inconclusive regarding the extent to which
military personnel actually exercised control 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.
43
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. Therefore, we
will remand this case to the district court for further
consideration with respect to the application of the first
Taylor factor of “direct control.” 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 ATS claims for the alleged
international law violations. 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.” See
Taylor, 658 F.3d at 411 (internal quotation marks omitted).
46
Although the plaintiffs’ remaining common law tort claims
are premised on familiar causes of action, which the district
court thoroughly analyzed in its decision regarding the
sufficiency of those claims under Federal Rule of 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. We therefore refrain from reaching the additional
issues presented on appeal regarding whether the plaintiffs’
common law claims properly were dismissed under Rule 12(b)(6). 10
Based on the issues we have identified that cannot be
resolved on the present record, we are unable to perform 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.” Baker, 369
U.S. at 211-12. 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
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