Filed: May 14, 2012
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1335
(1:08-cv-00827-GBL-JFA)
SUHAIL NAJIM ABDULLAH AL SHIMARI; TAHA YASEEN ARRAQ RASHID;
SA'AD HAMZA HANTOOSH AL-ZUBA'E; SALAH HASAN NUSAIF JASIM
AL-EJAILI,
Plaintiffs - Appellees,
v.
CACI INTERNATIONAL, INCORPORATED; CACI PREMIER TECHNOLOGY,
INCORPORATED,
Defendants - Appellants.
--------------------
KELLOGG BROWN & ROOT SERVICES, INCORPORATED,
Amicus Supporting Appellants,
PROFESSORS OF CIVIL PROCEDURE AND FEDERAL COURTS, Erwin
Chemerinsky, Dean and Distinguished Professor of Law,
University of California, Irvine School of Law, Eric M.
Freedman, Maurice A. Deane Distinguished Professor of
Constitutional Law, Hofstra University School of Law,
Jennifer M. Green, Director, Human Rights Litigation and
International Advocacy Clinic, University of Minnesota Law
School, Jonathan Hafetz Associate Professor of Law, Seton
Hall University School of Law, Alan B. Morrison, Lerner
Family Associate Dean for Public Interest and Public Service
Law, George Washington University School of Law, Stephen I.
Vladeck, Professor of Law and Associate Dean for
Scholarship, American University Washington College of Law;
RETIRED MILITARY OFFICERS; EARTHRIGHTS INTERNATIONAL;
INTERNATIONAL HUMAN RIGHTS ORGANIZATIONS AND EXPERTS, Human
Rights First, The Center for Victims of Torture, The
International Commission of Jurists, The Working Group
Established by the Commission on Human Rights on the Use of
Mercenaries as a Means of Violating Human Rights and
Impeding the Exercise of the Right of Peoples to Self-
Determination, Human Rights Watch, Ilias Bantekas, John
Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller,
Michael Newton, Marco Sassoli, Gary Solis, Scott M.
Sullivan, Dr. Anicee Van Engeland,
Amici Supporting Appellees,
UNITED STATES OF AMERICA,
Amicus Curiae.
No. 10-1891
(8:08-cv-01696-PJM)
WISSAM ABDULLATEFF SA'EED AL-QURAISHI,
Plaintiff - Appellee,
v.
L-3 SERVICES, INCORPORATED,
Defendant – Appellant,
and
ADEL NAKHLA; CACI INTERNATIONAL, INCORPORATED; CACI PREMIER
TECHNOLOGY, INCORPORATED,
Defendants.
--------------------
PROFESSORS OF CIVIL PROCEDURE AND FEDERAL COURTS, Erwin
Chemerinsky, Dean and Distinguished Professor of Law,
University of California, Irvine School of Law, Eric M.
Freedman, Maurice A. Deane Distinguished Professor of
Constitutional Law, Hofstra University School of Law,
Jennifer M. Green, Director, Human Rights Litigation and
2
International Advocacy Clinic, University of Minnesota Law
School, Jonathan Hafetz Associate Professor of Law, Seton
Hall University School of Law, Alan B. Morrison, Lerner
Family Associate Dean for Public Interest and Public Service
Law, George Washington University School of Law, Stephen I.
Vladeck, Professor of Law and Associate Dean for
Scholarship, American University Washington College of Law;
RETIRED MILITARY OFFICERS; EARTHRIGHTS INTERNATIONAL;
INTERNATIONAL HUMAN RIGHTS ORGANIZATIONS AND EXPERTS, Human
Rights First, The Center for Victims of Torture, The
International Commission of Jurists, The Working Group
Established by the Commission on Human Rights on the Use of
Mercenaries as a Means of Violating Human Rights and
Impeding the Exercise of the Right of Peoples to Self-
Determination, Human Rights Watch, Ilias Bantekas, John
Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller,
Michael Newton, Marco Sassoli, Gary Solis, Scott M.
Sullivan, Dr. Anicee Van Engeland,
Amici Supporting Appellee,
UNITED STATES OF AMERICA,
Amicus Curiae.
No. 10-1921
(8:08-cv-01696-PJM)
WISSAM ABDULLATEFF SA'EED AL-QURAISHI,
Plaintiff - Appellee,
v.
ADEL NAKHLA,
Defendant – Appellant,
and
L-3 SERVICES, INCORPORATED; CACI INTERNATIONAL,
INCORPORATED; CACI PREMIER TECHNOLOGY, INCORPORATED,
Defendants.
3
--------------------
PROFESSORS OF CIVIL PROCEDURE AND FEDERAL COURTS, Erwin
Chemerinsky, Dean and Distinguished Professor of Law,
University of California, Irvine School of Law, Eric M.
Freedman, Maurice A. Deane Distinguished Professor of
Constitutional Law, Hofstra University School of Law,
Jennifer M. Green, Director, Human Rights Litigation and
International Advocacy Clinic, University of Minnesota Law
School, Jonathan Hafetz Associate Professor of Law, Seton
Hall University School of Law, Alan B. Morrison, Lerner
Family Associate Dean for Public Interest and Public Service
Law, George Washington University School of Law, Stephen I.
Vladeck, Professor of Law and Associate Dean for
Scholarship, American University Washington College of Law;
RETIRED MILITARY OFFICERS; EARTHRIGHTS INTERNATIONAL;
INTERNATIONAL HUMAN RIGHTS ORGANIZATIONS AND EXPERTS, Human
Rights First, The Center for Victims of Torture, The
International Commission of Jurists, The Working Group
Established by the Commission on Human Rights on the Use of
Mercenaries as a Means of Violating Human Rights and
Impeding the Exercise of the Right of Peoples to Self-
Determination, Human Rights Watch, Ilias Bantekas, John
Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller,
Michael Newton, Marco Sassoli, Gary Solis, Scott M.
Sullivan, Dr. Anicee Van Engeland,
Amici Supporting Appellee,
UNITED STATES OF AMERICA,
Amicus Curiae.
O R D E R
The Court amends its opinion filed May 11, 2012, as
follows:
On page 9, attorney information section, line 17, the
names of “Raymond B. Biagini, Lawrence S. Ebner, MCKENNA LONG &
ALDRIDGE LLP, Washington, D.C., for Kellogg Brown & Root
Services, Incorporated, Amicus Supporting Appellants CACI
4
International, Incorporated, and CACI Premier Technology,
Incorporated” are added.
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
5
ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SUHAIL NAJIM ABDULLAH AL
SHIMARI; TAHA YASEEN ARRAQ
RASHID; SA’AD HAMZA HANTOOSH
AL-ZUBA’E; SALAH HASAN NUSAIF
JASIM AL-EJAILI,
Plaintiffs-Appellees,
v.
CACI INTERNATIONAL,
INCORPORATED; CACI PREMIER
TECHNOLOGY, INCORPORATED,
Defendants-Appellants. No. 09-1335
KELLOGG BROWN & ROOT SERVICES,
INCORPORATED,
Amicus Supporting Appellants,
PROFESSORS OF CIVIL
PROCEDURE AND FEDERAL COURTS,
Erwin Chemerinsky, Dean and
Distinguished Professor of Law,
University of California, Irvine
School of Law,
2 AL SHIMARI v. CACI INTERNATIONAL
Eric M. Freedman, Maurice A.
Deane Distinguished Professor of
Constitutional Law, Hofstra
University School of Law, Jennifer
M. Green, Director, Human Rights
Litigation and International
Advocacy Clinic, University of
Minnesota Law School, Jonathan
Hafetz Associate Professor of
Law, Seton Hall University School
of Law, Alan B. Morrison, Lerner
Family Associate Dean for Public
Interest and Public Service Law,
George Washington University
School of Law, Stephen I.
Vladeck, Professor of Law and
Associate Dean for Scholarship,
American University Washington
College of Law; RETIRED MILITARY
OFFICERS; EARTHRIGHTS
INTERNATIONAL; INTERNATIONAL
HUMAN RIGHTS ORGANIZATIONS AND
EXPERTS, Human Rights First, The
Center for Victims of Torture, The
International Commission of
Jurists,
AL SHIMARI v. CACI INTERNATIONAL 3
The Working Group Established
by the Commission on Human
Rights on the Use of Mercenaries
as a Means of Violating Human
Rights and Impeding the Exercise
of the Right of Peoples to Self-
Determination, Human Rights
Watch, Ilias Bantekas, John
Cerone, Geoffrey Corn, David
Glazier, Kevin Jon Heller, Michael
Newton, Marco Sassoli, Gary
Solis, Scott M. Sullivan, Dr.
Anicee Van Engeland,
Amici Supporting Appellees,
UNITED STATES OF AMERICA,
Amicus Curiae.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:08-cv-00827-GBL-JFA)
WISSAM ABDULLATEFF SA’EED AL-
QURAISHI,
Plaintiff-Appellee,
L-3 SERVICES, INCORPORATED, No. 10-1891
Defendant-Appellant,
and
4 AL SHIMARI v. CACI INTERNATIONAL
ADEL NAKHLA; CACI
INTERNATIONAL, INCORPORATED;
CACI PREMIER TECHNOLOGY,
INCORPORATED,
Defendants.
PROFESSORS OF CIVIL
PROCEDURE AND FEDERAL COURTS,
Erwin Chemerinsky, Dean and
Distinguished Professor of Law,
University of California, Irvine
School of Law, Eric M. Freedman,
Maurice A. Deane Distinguished
Professor of Constitutional Law,
Hofstra University School of Law,
Jennifer M. Green, Director,
Human Rights Litigation and
International Advocacy Clinic,
University of Minnesota Law
School, Jonathan Hafetz Associate
Professor of Law, Seton Hall
University School of Law, Alan B.
Morrison, Lerner Family Associate
Dean for Public Interest and
Public Service Law, George
Washington University School of
Law, Stephen I. Vladeck,
Professor of Law and Associate
Dean for Scholarship, American
University Washington College of
Law; RETIRED MILITARY OFFICERS;
AL SHIMARI v. CACI INTERNATIONAL 5
EARTHRIGHTS INTERNATIONAL;
INTERNATIONAL HUMAN RIGHTS
ORGANIZATIONS AND EXPERTS,
Human Rights First, The Center
for Victims of Torture, The
International Commission of
Jurists, The Working Group
Established by the Commission on
Human Rights on the Use of
Mercenaries as a Means of
Violating Human Rights and
Impeding the Exercise of the
Right of Peoples to Self-
Determination, Human Rights
Watch, Ilias Bantekas, John
Cerone, Geoffrey Corn, David
Glazier, Kevin Jon Heller, Michael
Newton, Marco Sassoli, Gary
Solis, Scott M. Sullivan, Dr.
Anicee Van Engeland,
Amici Supporting Appellee,
UNITED STATES OF AMERICA,
Amicus Curiae.
6 AL SHIMARI v. CACI INTERNATIONAL
WISSAM ABDULLATEFF SA’EED AL-
QURAISHI,
Plaintiff-Appellee,
v.
ADEL NAKHLA,
Defendant-Appellant,
and
L-3 SERVICES, INCORPORATED; CACI
INTERNATIONAL, INCORPORATED;
CACI PREMIER TECHNOLOGY,
INCORPORATED,
Defendants. No. 10-1921
PROFESSORS OF CIVIL
PROCEDURE AND FEDERAL COURTS,
Erwin Chemerinsky, Dean and
Distinguished Professor of Law,
University of California, Irvine
School of Law, Eric M. Freedman,
Maurice A. Deane Distinguished
Professor of Constitutional Law,
Hofstra University School of Law,
Jennifer M. Green, Director,
Human Rights Litigation and
International Advocacy Clinic,
AL SHIMARI v. CACI INTERNATIONAL 7
University of Minnesota Law
School, Jonathan Hafetz Associate
Professor of Law, Seton Hall
University School of Law, Alan B.
Morrison, Lerner Family Associate
Dean for Public Interest and
Public Service Law, George
Washington University School of
Law, Stephen I. Vladeck,
Professor of Law and Associate
Dean for Scholarship, American
University Washington College of
Law; RETIRED MILITARY OFFICERS;
EARTHRIGHTS INTERNATIONAL;
INTERNATIONAL HUMAN RIGHTS
ORGANIZATIONS AND EXPERTS,
Human Rights First, The Center
for Victims of Torture, The
International Commission of
Jurists, The Working Group
Established by the Commission on
Human Rights on the Use of
Mercenaries as a Means of
Violating Human Rights and
Impeding the Exercise of the
Right of Peoples to Self-
Determination, Human Rights
Watch, Ilias Bantekas, John
Cerone, Geoffrey Corn, David
Glazier, Kevin Jon Heller, Michael
Newton, Marco Sassoli, Gary
Solis, Scott M. Sullivan, Dr.
Anicee Van Engeland,
Amici Supporting Appellee,
8 AL SHIMARI v. CACI INTERNATIONAL
UNITED STATES OF AMERICA,
Amicus Curiae.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, Senior District Judge.
(8:08-cv-01696-PJM)
Argued: January 27, 2012
Decided: May 11, 2012
Before TRAXLER, Chief Judge, and WILKINSON,
NIEMEYER, MOTZ, KING, GREGORY, SHEDD,
DUNCAN, AGEE, DAVIS, KEENAN, WYNN, DIAZ, and
FLOYD, Circuit Judges.
Appeals dismissed by published opinion. Judge King wrote
the opinion, in which Chief Judge Traxler and Judges Motz,
Gregory, Duncan, Agee, Davis, Keenan, Wynn, Diaz, and
Floyd joined. Judge Duncan wrote a concurring opinion, in
which Judge Agee joined. Judge Wynn wrote a concurring
opinion. Judge Wilkinson wrote a dissenting opinion, in
which Judge Niemeyer and Judge Shedd joined. Judge Nie-
meyer wrote a dissenting opinion, in which Judge Wilkinson
and Judge Shedd joined.
COUNSEL
ARGUED: Joseph William Koegel, Jr., STEPTOE & JOHN-
SON, LLP, Washington, D.C.; Ari S. Zymelman, WILLIAMS
& CONNOLLY, LLP, Washington, D.C., for Appellants.
AL SHIMARI v. CACI INTERNATIONAL 9
Baher Azmy, CENTER FOR CONSTITUTIONAL RIGHTS,
New York, New York; Susan L. Burke, BURKE PLLC,
Washington, D.C., for Appellees. H. Thomas Byron, III,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Amicus Curiae. ON BRIEF: John F. O’Connor,
STEPTOE & JOHNSON, LLP, Washington, D.C., for Appel-
lants CACI International, Incorporated and CACI Premier
Technology, Incorporated. Eric R. Delinsky, ZUCKERMAN
SPAEDER LLP, Washington, D.C.; F. Whitten Peters, F.
Greg Bowman, WILLIAMS & CONNOLLY, LLP, Washing-
ton, D.C., for Appellants L-3 Services, Incorporated and Adel
Nakhla. Susan M. Sajadi, BURKE PLLC, Washington, D.C.;
Katherine Gallagher, J. Wells Dixon, CENTER FOR CON-
STITUTIONAL RIGHTS, New York, New York; Joseph F.
Rice, MOTLEY RICE LLC, Mt. Pleasant, South Carolina;
Shereef Hadi Akeel, AKEEL & VALENTINE, PC, Troy,
Michigan, for Appellees. Raymond B. Biagini, Lawrence S.
Ebner, MCKENNA LONG & ALDRIDGE LLP, Washington,
D.C., for Kellogg Brown & Root Services, Incorporated, Amicus
Supporting Appellants CACI International, Incorporated, and CACI
Premier Technology, Incorporated. Joshua S. Devore, Agnieszka
M. Fryszman, Maureen E. McOwen, COHEN MILSTEIN SELL-
ERS & TOLL PLLC, Washington, D.C., for Professors of
Civil Procedure and Federal Courts, Amici Supporting Appel-
lees. Jennifer B. Condon, SETON HALL UNIVERSITY
SCHOOL OF LAW, Center for Social Justice, Newark, New
Jersey; John J. Gibbons, Lawrence S. Lustberg, Jonathan M.
Manes, GIBBONS P.C., Newark, New Jersey, for Retired
Military Officers, Amici Supporting Appellees. Gabor Rona,
Melina Milazzo, HUMAN RIGHTS FIRST, New York, New
York; Robert P. LoBue, Ella Campi, Richard Kim, Elizabeth
Shofner, PATTERSON BELKNAP WEBB & TYLER LLP,
New York, New York, for International Human Rights Orga-
nizations and Experts, Amici Supporting Appellees. Marco
Simons, Richard Herz, Marissa Vahlsing, Jonathan Kaufman,
EARTHRIGHTS INTERNATIONAL, Washington, D.C., for
Earthrights International, Amicus Supporting Appellees. Tony
West, Assistant Attorney General, Michael S. Raab, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Amicus Curiae.
10 AL SHIMARI v. CACI INTERNATIONAL
OPINION
KING, Circuit Judge:
Following the 2003 invasion of Iraq, the United States mili-
tary took control of Abu Ghraib prison near Baghdad, using
it to detain criminals, enemies of the provisional government,
and other persons thought to possess information regarding
the anti-Coalition insurgency. The United States contracted
with CACI International, Incorporated (with CACI Premier
Technology, Incorporated, together referred to herein as
"CACI"), and Titan Corporation, now L-3 Services, Incorpo-
rated ("L-3"), to provide civilian employees to assist the mili-
tary in communicating with and interrogating this latter group
of detainees.
On June 30, 2008, a number of Iraqis who had been
detained at Abu Ghraib and elsewhere filed lawsuits against
CACI and L-3 in the Southern District of Ohio and the Dis-
trict of Maryland, alleging that the contractors and certain of
their employees were liable in common law tort and under the
Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, for torturing
and abusing them during their incarceration. Following the
unopposed transfer of the Ohio action to the Eastern District
of Virginia, where CACI is headquartered, Suhail Najim Ab-
dullah Al Shimari and three co-plaintiffs submitted an
Amended Complaint asserting that CACI, through its employ-
ees, agents, and government coconspirators, deprived them of
basic human necessities, beat them and ran electric current
through their bodies, subjected them to sexual abuse and
humiliation, and traumatized them with mock executions and
other sadistic acts. In the operative Second Amended Com-
plaint filed in the companion litigation, seventy-two plaintiffs,
headed by Wissam Abdullateff Sa’eed Al-Quraishi, detailed
similar allegations against L-3 and Adel Nakhla, an L-3
employee residing in Maryland.1
1
CACI and L-3 were each initially named as defendants in both law-
suits. Within a couple of months following commencement of the litiga-
AL SHIMARI v. CACI INTERNATIONAL 11
I.
A.
On September 15, 2008, CACI moved to dismiss the
Amended Complaint filed in the Eastern District of Virginia,
maintaining generally that, among other things: (1) the dis-
pute presented a nonjusticiable political question; (2) the inev-
itable application of the law of occupied Iraq rendered CACI,
as part of the occupying power, immune from suit under
Coleman v. Tennessee, 97 U.S. 509 (1878), and Dow v. John-
son, 100 U.S. 158 (1879); (3) the plaintiffs’ claims were pre-
empted by the "combatant activities" exception to the Federal
Tort Claims Act (the "FTCA"), see 28 U.S.C. § 2680(j), dis-
cussed in Ibrahim v. Titan Corp., 556 F. Supp. 2d 1 (D.D.C.
2007), and subsequently adopted on appeal, see Saleh v. Titan
Corp., 580 F.3d 1 (D.C. Cir. 2009) (citing Boyle v. United
Tech. Corp., 487 U.S. 500 (1988)); and (4) the company was
entitled to absolute official immunity in accordance with
Mangold v. Analytic Services, Inc., 77 F.3d 1442 (4th Cir.
1996), because its employees had performed delegated gov-
ernmental functions. With respect to the ATS claims, CACI
proffered several additional arguments, none of them relevant
here in light of the claims’ eventual dismissal. See infra at 12.
L-3’s motion to dismiss the Second Amended Complaint in
the Maryland action, filed on November 26, 2008, and in
which Nakhla joined, was predicated essentially along the
same lines as CACI’s, though it characterized Mangold as
involving the application of derivative sovereign immunity
instead of absolute official immunity. As CACI had previ-
tion, however, CACI was voluntarily dismissed from the Maryland action
and the same was accomplished with respect to L-3 in the Virginia pro-
ceedings. See Fed. R. Civ. P. 41(a)(1)(A)(i). On March 9, 2009, the district
court in Maryland denied without prejudice L-3’s motion to transfer venue
of that case to the Eastern District of Virginia.
12 AL SHIMARI v. CACI INTERNATIONAL
ously done, L-3 invoked the political question doctrine, cited
the Supreme Court’s decisions in Coleman and Dow (the
"law-of-war defense"), and requested (through supplemental
briefing) that the court adopt the combatant activities excep-
tion ultimately applied in Saleh ("Saleh preemption"). L-3
similarly advocated for dismissal of the ATS claims on sub-
stantially the same grounds identified by CACI.2
1.
On March 19, 2009, the district court in Virginia entered a
Memorandum Order dismissing the ATS claims against
CACI, but permitting the common-law tort claims to proceed.
See Al Shimari v. CACI Premier Tech., Inc., 657 F. Supp. 2d
700 (E.D. Va. 2009). In so ruling, the court acknowledged its
considerable reservations that the action implicated a political
question, in that CACI, a private entity, was not the United
States, and only low-level military and governmental person-
nel appeared to have been involved in the alleged mistreat-
ment. See id. at 708-14. The court was similarly doubtful that
the foreseeable application of Iraqi law required dismissal in
light of CACI’s apparent status as an arms-length contractor,
"because even if the law of a foreign jurisdiction were to gov-
ern any of the Plaintiffs’ claims, it would not regulate the con-
duct of the United States, a non-party to this suit between
private parties." Id. at 725.
The dividing line between the bona fide military and its
civilian support personnel also fueled the district court’s
uncertainty that the latter could have engaged in wartime
activities as a "combatant" for purposes of adopting the D.C.
Circuit’s theory of FTCA preemption. See Al Shimari, 657 F.
2
The Maryland district court denied L-3’s dismissal motion as to the
ATS claims. See infra at 15. L-3 maintains on appeal that this ruling was
in error, but it confines its argument to the identical grounds urged in sup-
port of its primary contention that the court below incorrectly declined to
dismiss the state-law tort claims.
AL SHIMARI v. CACI INTERNATIONAL 13
Supp. 2d at 720-21. The court concluded that, in any event,
the plaintiffs’ allegations of torture at the hands of CACI
failed to implicate the uniquely federal interests or irreconcil-
able conflict with state law that animated the Supreme Court’s
decision in Boyle, on which Saleh relied. See id. at 722-25.
Regarding CACI’s claim of derivative immunity under
Mangold, the district court set forth its view that the validity
of such a claim depends on whether its proponent, in commit-
ting the act complained of, was "‘exercising discretion while
acting within the scope of their employment.’" Al Shimari,
657 F. Supp. 2d at 715 (emphasis omitted) (quoting Mangold,
77 F.3d at 1446). Citing "a very limited factual record," the
court expressed its skepticism that CACI had established at
the dismissal stage that its treatment of the plaintiffs at Abu
Ghraib involved the exercise of discretion. Id. The court
stated further that it was "completely bewildered" by the sug-
gestion that it could accept CACI’s representations that the
company had performed within the scope of its agreement
with the government "when the contract is not before the
Court on this motion." Id. at 717. On March 23, 2009, CACI
noted its appeal (No. 09-1335) from the district court’s ruling.
2.
The assertion of Mangold immunity was viewed much the
same way by the district court in Maryland, which, in its
Opinion of July 29, 2010, concluded that, "relying on the
information in the [Second Amended] Complaint, it is clearly
too early to dismiss Defendants." Al-Quraishi v. Nakhla, 728
F. Supp. 2d 702, 735 (D. Md. 2010).3 The district court per-
(Text continued on page 15)
3
In Mangold, we reversed the district court’s denial of immunity to the
defendant government contractor and its employees in a lawsuit brought
by an Air Force officer and his wife for statements the contractor made to
military officials investigating the officer’s alleged misconduct. L-3 and
CACI have each relied heavily on Mangold for the proposition that our
decision in that case likewise entitles them to immunity for the tort claims
14 AL SHIMARI v. CACI INTERNATIONAL
asserted by the plaintiffs here. The Maryland district court, noting the
defendants’ additional reliance on Butters v. Vance International, Inc., 225
F.3d 462 (4th Cir. 2000), characterized the immunity claimed as being in
the nature of derivative sovereign immunity, which the court described as
"protect[ing] agents of the sovereign from liability for carrying out the
sovereign’s will." Al-Quraishi, 728 F. Supp. 2d at 736. The court distin-
guished Mangold, opining that the immunity discussed therein "was based
on a combination of derivative absolute official immunity and witness
immunity, doctrines that differ from derivative sovereign immunity." Al-
Quraishi, 728 F. Supp. 2d at 736.
The distinction drawn by the district court finds support in the text of
Mangold, as expressed by our careful observation that the public policy
justifying the grant of absolute immunity to federal officials exercising
job-related discretion "provide[d] only a partial foundation for protecting"
the defendant contractor in that case. Mangold, 77 F.3d at 1448 (citing
Westfall v. Ervin, 484 U.S. 292, 300 (1988)). The remainder of that foun-
dation was supplied by "the common law privilege to testify with absolute
immunity in courts of law, before grand juries, and before government
investigators." Id. at 1449. According to the Maryland district court, deriv-
ative absolute official immunity (invoked by CACI and more directly
addressed by the Virginia district court in Al Shimari) "ensures that discre-
tionary governmental decision makers are able to efficiently exercise their
discretion in the best interests of the Government without ‘the potentially
debilitating distraction of defending private lawsuits.’" Id. (quoting Man-
gold, 77 F.3d at 1446). While Mangold immunity certainly has the effect
of removing the potential distraction of litigation, it is important to note
the narrow scope of the immunization actually authorized in that case,
which we applied "only insofar as necessary to shield statements and
information, whether truthful or not, given by a government contractor and
its employees in response to queries by government investigators engaged
in an official investigation." 77 F.3d at 1449. In light of our disposition of
these appeals, infra, we express no opinion as to the merits of any immu-
nity asserted by the defendants in general, or as to the pertinence of our
Mangold precedent in particular, but instead leave those matters for the
district courts to consider in the first instance should they arise on remand.
The difference between derivative sovereign immunity and derivative
absolute official immunity (including any offshoots thereof) appears to be
a fine one that may depend on the degree of discretion afforded the con-
tractor by the government, which, at this stage of the litigation, is not a
question capable of final resolution in either proceeding. Were that not the
AL SHIMARI v. CACI INTERNATIONAL 15
ceived no such record deficiencies concerning L-3’s and
Nakhla’s alternative bases for dismissal, however, deeming
the facts as pleaded sufficient to reject outright both defen-
dants’ arguments. The court thus denied the motion to dismiss
with respect to all claims, including those premised on the
ATS. See id. at 724-33, 736-60. From the court’s accompany-
ing Order, L-3 noted its appeal (No. 10-1891) on August 4,
2010, followed two days later by another appeal (No. 10-
1921) noted on behalf of Nakhla.
B.
The appeals in Al-Quraishi were consolidated and argued
in seriatim with the Al Shimari appeal before a panel of this
Court on October 26, 2010. Apart from urging our affirmance
on the merits, the plaintiffs in each matter alternatively main-
tained that we lacked appellate jurisdiction over the district
courts’ non-final orders denying the contractors’ respective
motions to dismiss. On September 21, 2011, we issued opin-
ions in both cases, in which a majority of the panel concluded
that jurisdiction was proper in this Court, and that the district
courts had erred in permitting the claims against the contrac-
tors to proceed. See Al Shimari v. CACI Int’l, Inc., 658 F.3d
413 (4th Cir. 2011); Al-Quraishi v. L-3 Servs., Inc., 657 F.3d
case, the distinction could be crucial, in that fully developed rulings deny-
ing absolute official immunity are immediately appealable, while denials
based on sovereign immunity (or derivative claims thereof) may not be.
See Hous. Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc., 481 F.3d
265, 279 (5th Cir. 2007) (denial of derivative sovereign immunity not
appealable); Alaska v. United States, 64 F.3d 1352, 1356 (9th Cir. 1995)
(denial of sovereign immunity not appealable); Pullman Const. Indus.,
Inc. v. United States, 23 F.3d 1166, 1168 (7th Cir. 1994) (same). But see
In re World Trade Ctr. Disaster Site Litigation, 521 F.3d 169, 191 (2d Cir.
2008) (disagreeing with foregoing authorities). Although the degree to
which Mangold controls the specific assertions of immunity in these cases
is yet to be decided, we will, for simplicity’s sake, continue to refer to L-
3 and CACI as having asserted "Mangold immunity."
16 AL SHIMARI v. CACI INTERNATIONAL
201 (4th Cir. 2011).4 Consistently therewith, we entered sepa-
rate judgments reversing the orders on appeal and remanding
with instructions to dismiss both proceedings.
On November 8, 2011, upon the timely petitions of the
plaintiffs, see Fed. R. App. P. 35(b)-(c), we entered an Order
granting en banc rehearing of all three appeals, thereby vacat-
ing our prior judgments. The appeals were thereafter consoli-
dated for purposes of oral argument, which was conducted
before the en banc Court on January 27, 2012.5 Having fully
considered the briefs and arguments of the parties, together
with the written and oral submissions of the amici curiae per-
mitted leave to participate, we conclude that we lack jurisdic-
tion over these interlocutory appeals, and we therefore
dismiss them.6
II.
A.
Except for the limited categories of interlocutory orders set
forth at 28 U.S.C. § 1292, federal appellate jurisdiction is
4
We released both of our panel opinions on September 21, 2011, fol-
lowing the Supreme Court’s denial of certiorari in Saleh on June 27, 2011.
We had previously, on March 11, 2011, placed these appeals in abeyance
pending resolution of the Saleh certiorari petition.
5
At our invitation, the Department of Justice, on behalf of the United
States, submitted an amicus brief and participated in oral argument.
Therein, the government took the position that we were without jurisdic-
tion to decide these appeals. Just prior to argument, we granted the defen-
dants leave to submit supplemental briefs in response to the government’s
amicus submission, after which the plaintiffs moved to tender their own
supplemental briefs. We grant the plaintiffs’ motions and accept their sup-
plemental replies for consideration.
6
The arguments and contentions before us in these appeals, though not
identically presented or emphasized, are nonetheless substantially similar
enough that we are content to continue the appeals’ consolidation for pur-
poses of decision. Hereinafter, we shall refer to L-3 and Nakhla together
as "L-3," and both of them collectively with CACI as the "appellants."
AL SHIMARI v. CACI INTERNATIONAL 17
reserved for "final decisions of the district courts of the
United States." 28 U.S.C. § 1291. It is undisputed that the
decisions underlying these putative appeals are interlocutory,
at least in the procedural sense, in that no final order or judg-
ment has been entered by either district court. It is also with-
out contest that neither order has been certified appealable by
the issuing court pursuant to 28 U.S.C. § 1292(b), and that
none of that statute’s provisions otherwise apply to confer
jurisdiction on this Court.
Consequently, the only way we may be entitled to review
the orders on appeal is if they are among "that small class [of
decisions] which finally determine claims of right separable
from, and collateral to, rights asserted in the action, too
important to be denied review and too independent of the
cause itself to require that appellate consideration be deferred
until the whole case is adjudicated." Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949). Expounding on
the topic, the Supreme Court has emphasized that an appeal-
able Cohen order must "[1] conclusively determine the dis-
puted question, [2] resolve an important issue completely
separate from the merits of the action, and [3] be effectively
unreviewable on appeal from a final judgment." Will v. Hal-
lock, 546 U.S. 345, 349 (2006) (alterations in original) (inter-
nal quotation marks omitted).
Cohen involved a stockholder’s derivative action for mis-
management and fraud, in which the Supreme Court reviewed
the district court’s threshold decision declining to enforce a
state law requiring plaintiffs in such cases to post security
ensuring payment of attorney fees in the event the defendant
corporation prevailed. Deeming the appeal properly taken, the
Court declared no exception to the jurisdictional prerequisites
of 28 U.S.C. § 1291, but instead described what would subse-
quently be coined the "collateral order doctrine," MacAlister
v. Guterma, 263 F.2d 65, 67 (2d Cir. 1958), as a "practical,
rather than a technical construction" of the statute. Cohen, 337
U.S. at 546.
18 AL SHIMARI v. CACI INTERNATIONAL
The federal courts of appeals have consistently been
charged with keeping a tight rein on the types of orders suit-
able for appeal consistent with Cohen. We are therefore
bound to maintain "a healthy respect for the virtues of the
final-judgment rule." Mohawk Indus., Inc. v. Carpenter, 130
S. Ct. 599, 605 (2009); see also Will, 546 U.S. at 350 ("[W]e
have not mentioned applying the collateral order doctrine
recently without emphasizing its modest scope.").7
The Supreme Court’s concern, as expressed through its
repeated admonitions, is amply justified. The appellate courts
are, by design, of limited jurisdiction; thus, accepting prejudg-
ment appeals as a matter of course would "undermine[ ] effi-
cient judicial administration and encroach[ ] upon the
prerogatives of district court judges, who play a special role
in managing ongoing litigation." Mohawk, 130 S. Ct. at 605
(internal quotation marks omitted). In addition, routine inter-
locutory review would unacceptably subject meritorious law-
suits to "the harassment and cost of a succession of separate
appeals from the various rulings to which a litigation may
give rise, from its initiation to entry of judgment." Firestone
Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)
(internal quotation marks omitted).
Moreover, there is no need to construe Cohen broadly
given the existence of a suitable alternative. The "safety
valve" of discretionary interlocutory review under 28 U.S.C.
7
This "modest scope" is apparent from the short list of orders approved
by the Supreme Court for immediate review under Cohen. See Osborn v.
Haley, 549 U.S. 225, 238-39 (2007) (denial of substitution of United
States under Westfall Act); P.R. Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 144-45 (1993) (denial to state of claimed Elev-
enth Amendment immunity); Harlow v. Fitzgerald, 457 U.S. 800, 817-18
(1982) (denial of qualified immunity from suit pursuant to 42 U.S.C.
§ 1983); Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982) (denial to presi-
dent of absolute immunity); Helstoski v. Meanor, 442 U.S. 500, 508
(1979) (denial of Speech and Debate Clause immunity); Abney v. United
States, 431 U.S. 651, 660 (1977) (denial of double jeopardy bar).
AL SHIMARI v. CACI INTERNATIONAL 19
§ 1292(b) is frequently a "better vehicle for vindicating [cer-
tain] serious . . . claims than the blunt, categorical instrument
of [a] § 1291 collateral order appeal." Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 883 (1994). Accordingly,
the collateral order doctrine should "never be allowed to swal-
low the general rule that a party is entitled to a single appeal,
to be deferred until final judgment has been entered." Id. at
868 (citation omitted).
B.
Although a properly appealable collateral order under
Cohen must of course satisfy all of the Will requirements, its
hallmark is the encapsulation of a right whose abridgement is
"effectively unreviewable" should appellate review await final
judgment. See Henry v. Lake Charles Am. Press LLC, 566
F.3d 164, 177 (5th Cir. 2009) (describing unreviewability as
"the fundamental characteristic of the collateral order doc-
trine" (citation omitted)). The "critical question" in determin-
ing whether the right at issue is effectively unreviewable in
the normal course "is whether the essence of the claimed right
is a right not to stand trial" — that is, whether it constitutes
an immunity from suit. Van Cauwenberghe v. Biard, 486 U.S.
517, 524 (1988) (internal quotation marks omitted). Absent an
immediate appellate review of the denial of an immunity
claim, the right not to stand trial "would be irretrievably lost."
Id. (internal quotation marks omitted). By contrast, if the right
at issue is one "not to be subject to a binding judgment of the
court" — that is, a defense to liability — then the right can
be vindicated just as readily on appeal from the final judg-
ment, and the collateral order doctrine does not apply. Id. at
527.
In assessing whether the right sought to be protected consti-
tutes a true immunity and not merely a defense, "§ 1291
requires [the court] of appeals to view claims of a ‘right not
to be tried’ with skepticism, if not a jaundiced eye." Digital
Equip., 511 U.S. at 873. As the Supreme Court has cautioned,
20 AL SHIMARI v. CACI INTERNATIONAL
"[o]ne must be careful . . . not to play word games with the
concept of a ‘right not to be tried,’" Midland Asphalt Corp.
v. United States, 489 U.S. 794, 801 (1989), as "virtually every
right that could be enforced appropriately by pretrial dismissal
might loosely be described as conferring a right not to stand
trial," Digital Equip., 511 U.S. at 873. It is within the forego-
ing framework that we review de novo the appealability of the
district courts’ denial orders. See Mitchell v. Forsyth, 472
U.S. 511, 528-30 (1985) (equating denials of qualified immu-
nity to collateral denials of other asserted immunities or of
double jeopardy invocations, and deeming de novo standard
proper based on non-deferential review of latter claims).
III.
In Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir.
2007), the District of Columbia Circuit confronted an
attempted appeal from the district court’s interlocutory order
refusing to dismiss an action brought by Indonesian villagers
alleging serious injuries visited upon them by members of that
nation’s military in the defendants’ private employ. Accord-
ing to the defendants, the dispute presented a nonjusticiable
political question. The court of appeals declined to address the
merits of the issue, noting the absence of "a single case in
which a federal appeals court held that denial of a motion to
dismiss on political question grounds is an immediately
appealable collateral order." Id. at 352.8
8
The D.C. Circuit was presented in Doe with the same argument the
appellants make here: that the denial of a dismissal motion premised on
the separation of powers doctrine is an appealable collateral order under
Cohen because immediate review "is necessary to protect the executive
branch from judicial intrusion into sensitive foreign policy matters" that
could not be remedied on appeal from a final judgment. 473 F.3d at 351.
The Doe court squarely rejected that mistaken notion, however, explaining
that although the Supreme Court has "identif[ied] ‘honoring the separation
of powers’ as a value that could support a party’s interest in avoiding trial,
[the Court has] only d[one] so while discussing cases involving immu-
nity." Id.
AL SHIMARI v. CACI INTERNATIONAL 21
That case yet appears to be lacking, and the appellants do
not contend to the contrary. L-3, however, ventures that an
appellate court may determine whether an action is a political
question or otherwise nonjusticiable when it has proper juris-
diction over a different issue pursuant to Cohen or § 1292(b),
if consideration of the former is "necessary to ensure mean-
ingful review." Swint v. Chambers Cnty. Comm’n, 514 U.S.
35, 51 (1991). We may also exercise so-called "pendent"
appellate jurisdiction in circumstances where the question is
"inextricably intertwined" with another that may be immedi-
ately reviewed. Id.; see Rux v. Republic of Sudan, 461 F.3d
461, 476 (4th Cir. 2006).
L-3’s argument necessarily supposes the existence of an
otherwise valid jurisdictional basis for its appeal. Absent an
independently reviewable issue with which the political ques-
tion doctrine may be inexorably bound, or one that cannot be
reviewed in a meaningful fashion without addressing the justi-
ciability of the underlying dispute, we are without authority
to make any pronouncement on that aspect of the appellants’
defense. We therefore withhold for the moment substantive
comment on the political question doctrine, at least until we
evaluate whether the law-of-war defense, Saleh preemption,
or Mangold immunity provides the jurisdictional green light
for us to proceed.
A.
The appellants characterize their former presence in Iraq as
"occupying forces" (L-3) or "occupying personnel" (CACI)
that are answerable "only to their country’s criminal laws,"
Opening Br. of CACI at 25, and thus "not subject to civil suits
by the occupied," Opening Br. of L-3 at 22-23. In that regard,
the appellants equate their situation with those of the Civil
War soldiers in Coleman v. Tennessee, 97 U.S. 509 (1878),
and Dow v. Johnson, 100 U.S. 158, 166 (1879), who sought
relief from judgments entered against them for their wartime
acts. The defendant in Coleman had been convicted and sen-
22 AL SHIMARI v. CACI INTERNATIONAL
tenced to death by a Tennessee state court for murdering a
civilian, though the same judgment and sentence had been
previously imposed as the result of a United States Army
court-martial. Dow, by contrast, involved a challenge to a
civil judgment entered in Louisiana against a Union general
after forces under his command had seized the plaintiff’s pri-
vate property in furtherance of the war effort.
Neither judgment was permitted to stand. In both cases, the
Supreme Court considered the states of the Confederacy to
have been "the enemy’s country," to whose tribunals the
"[o]fficers and soldiers of the armies of the Union were not
subject." Coleman, 97 U.S. at 515. The Court expressed its
bewilderment that a contrary result could obtain "from the
very nature of war," concluding that "the tribunals of the
enemy must be without jurisdiction to sit in judgment upon
the military conduct of the officers and soldiers of the invad-
ing army. It is difficult to reason upon a proposition so mani-
fest; its correctness is evident upon its bare announcement."
Dow, 100 U.S. at 165.
Some differences between the disputes at bar and those
underlying Coleman and Dow are readily evident. Most
salient is that the civilian employees of CACI and L-3
assigned to Abu Ghraib were not soldiers. The idea that those
employees should nonetheless be treated like full-fledged
members of the military pervades this litigation, though the
concept resonates with more force as to some of the appel-
lants’ other defenses, particularly Saleh preemption and Man-
gold immunity. But cf. Ford v. Surget, 97 U.S. 594, 601-02
(1878) (relieving Mississippi civilian from liability for burn-
ing landowner’s cotton where destruction ordered by Confed-
erate army in face of Union advance and those "commands
would have been undoubtedly enforced by the same means of
coercion as if he had been an enlisted soldier"). The potential
liability of government contractors was front and center in
both Saleh and Mangold, and if the legal principles in either
case (or both) are deemed apposite to the dispute at bar, there
AL SHIMARI v. CACI INTERNATIONAL 23
is little question that the appellants, as contractors themselves,
may avail themselves of them.
Another distinction is that the appellants attempt to invoke
the law-of-war defense exclusively on the assertion that their
alleged wrongs will be evaluated under Iraqi law, and not the
laws of Virginia, Maryland, or another state. If true, that may
or may not be enough to bring Coleman and Dow into play,
inasmuch as the overriding concern in those cases appears to
have been less about the application of the criminal law of
Tennessee or of Louisiana tort law (there being no suggestion
that either differed significantly from the analogous law
applied by the defendants’ states of citizenry), and more about
the jurisdiction of the "foreign" courts. See Coleman, 97 U.S.
at 516 (musing that "there would be something incongruous
and absurd in permitting an officer or soldier of an invading
army to be tried by his enemy"); Dow, 100 U.S. at 163 (iden-
tifying "[t]he important question" for resolution as whether
nation’s military could be held liable "in the local tribunals").
Here, of course, the appellants are being sued on their home
turf, in courts that are indisputably domestic.
Even assuming that the facts before us can be viewed in
such a fashion to permit Coleman and Dow to apply, there is
no indication from the opinions in those cases that the
Supreme Court intended to construe the law-of-war defense as
an immunity from suit, rather than merely an insulation from
liability. See Dow, 100 U.S. at 165 (characterizing dispute as
concerning personal jurisdiction); Lauro Lines s.r.l. v.
Chasser, 490 U.S. 495, 500 (1989) ("[W]e have declined to
hold the collateral order doctrine applicable where a district
court has denied a claim . . . that the suit against the defendant
is not properly before the . . . court because it lacks jurisdic-
tion."). In its subsequent Ford opinion, with judgment having
been entered against the defendant on a jury verdict, the Court
in no way indicated that trial should not have been had.
Indeed, it seems a bit curious to imagine the nineteenth
century Court regarding its decisions in the Civil War cases
24 AL SHIMARI v. CACI INTERNATIONAL
as having durable precedential effect; the appeals afforded an
unusual opportunity for substantive domestic review of what
were, in effect, foreign pronouncements of judgment. But to
the extent that Coleman and Dow possess continued relevance
beyond their immediate context, it is nonetheless clear that the
issues presented in those cases were effectively reviewed and
disposed of on appeal, and, as such, the manner in which the
Supreme Court chose to resolve them fails to compel the con-
clusion that immunity must be accorded all prospective defen-
dants who insist they are similarly situated. The law-of-war
defense thus provides no basis for an interlocutory appeal in
this case.
B.
In a like fashion, Saleh preemption falls squarely on the
side of being a defense to liability and not an immunity from
suit. Immunity, according to the Supreme Court, derives from
"an explicit statutory or constitutional guarantee that trial will
not occur." Midland Asphalt Corp. v. United States, 489 U.S.
794, 801 (1989) (emphasis added).9 There is no contention
that the Supreme Court in Boyle v. United Technologies
Corp., 487 U.S. 500 (1988), from which Saleh preemption is
derived, relied on any such explicit guarantee embodied in
9
The Supreme Court has properly dismissed the mistaken notion that
Midland Asphalt’s "explicit . . . guarantee" requirement is in tension with
the immediate appealability of an order denying qualified immunity, an
inherently equivocal term that appears to connote only an implicit guaran-
tee against the burdens of trial. Any tension can only be characterized as
chimerical, however, in light of qualified immunity’s "good pedigree in
public law," which more than makes up for its implicitness. Digital
Equip., 511 U.S. at 875. The argument that an immunity need not be
explicit in order for jurisdiction to lie under the collateral order doctrine
"only leaves [the proponent of jurisdiction] with the unenviable task of
explaining why other rights that might fairly be said to include an
(implicit) ‘right not to stand trial’ aspect are less in need of protection by
immediate review, or more readily vindicated on appeal from final judg-
ment, than" the right the proponent asserts is an implicit right to be free
from suit. Id. at 875-76.
AL SHIMARI v. CACI INTERNATIONAL 25
statute or in the Constitution. Boyle preemption (and, thus,
Saleh preemption) is, ipso facto, not immunity.
We are not the first court to arrive at this ineluctable con-
clusion. In Martin v. Halliburton, 618 F.3d 476, 487 (5th Cir.
2010), the Fifth Circuit similarly reckoned that "the comba-
tant activities exception is not subject to a sui generis exemp-
tion from the ordinary jurisdictional requirements for denials
of preemption claims."10 Indeed, the Boyle Court itself repeat-
edly framed the preemption it recognized as creating a mere
defense to liability. See, e.g., 487 U.S. at 507 ("The imposi-
tion of liability on Government contractors [in the military
procurement context] will directly affect the terms of Govern-
ment contracts."); id. at 511-12 ("The financial burden of
judgments against the contractors would ultimately be passed
through . . . to the United States itself."); id. at 512 ("[S]tate
law which holds Government contractors liable for design
defects in military equipment does in some circumstances
present a ‘significant conflict’ with federal policy and must be
displaced.").
It is tempting, we suppose, to blur the line between an
eventual frustration of liability and the more immediate right
to avoid suit altogether. One might be persuaded to consider
the words "preemption" and "immunity" as mere labels that
are more or less synonymous with each other, or to presume
that the former can effectively operate as the latter. But
10
See also Rodriguez v. Lockheed Martin Corp., 627 F.3d 1259 (9th Cir.
2010), in which the court addressed its jurisdiction over an interlocutory
appeal premised on the discretionary functions exception to the FTCA.
According to the Rodriguez court, because the right recognized by Boyle
was merely a "defense to judgment" — and not, like qualified immunity,
a "right not to be required to go to trial" — nothing is irretrievably lost
by the lack of an immediate appeal from an adverse pretrial ruling. Rodri-
guez, 627 F.3d at 1266. The Ninth Circuit emphasized that Boyle did not
devise a new species of immunity, but merely recognized that "‘whether
the facts establish the conditions for the [government contractor] defense
is a question for the jury.’" Id. at 1265 (quoting Boyle, 487 U.S. at 514).
26 AL SHIMARI v. CACI INTERNATIONAL
merely repackaging for the sake of convenience the preemp-
tion defense derived from Boyle as "combatant activities
immunity," as our good colleague Judge Niemeyer does in
speaking for the dissenters, post at 97, is patently incorrect.
Though Boyle preemption, like sovereign immunity, may
be invoked to bar state law claims, the encapsulated rights
serve distinct purposes. State law claims are preempted under
Boyle simply because the imposition of liability in such situa-
tions is irreconcilable with uniquely federal interests. The
right conferred through federal preemption, in other words, is
the right not to be bound by a judgment stemming from state
law duties.
In stark contrast, immunity has consistently been adminis-
tered as a protection against the burden of litigation alto-
gether. See Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985).
Further, as the court of appeals explained in Rodriguez v.
Lockheed Martin Corp., 627 F.3d 1259, 1265 (9th Cir. 2010),
"[a]lthough the source of the government contractor defense
[recognized in Boyle] is the United States’ sovereign immu-
nity," the preemption defense is not itself a species thereof.
To the contrary, entitlement to preemption "is only a corollary
financial benefit flowing from the government’s sovereign
immunity." Id. Accordingly, Boyle’s "government contractor
defense does not confer sovereign immunity on contractors,"
and as such, the denial of the defense is not immediately
appealable. Id. (internal quotation marks omitted).
Importantly, the law requires that we assess the appeala-
bility of a potentially qualifying collateral order in a categori-
cal sense, and not on a case-by-case basis.11 Conducting that
11
Whether to recognize an order as collateral is not "an individualized
jurisdictional inquiry," but rather is based "on the entire category to which
a claim belongs." Mohawk, 130 S. Ct. at 605. Consequently, "we do not
now in each individual case engage in ad hoc balancing to decide issues
of appealability." Johnson v. Jones, 515 U.S. 304, 315 (1995). It follows
AL SHIMARI v. CACI INTERNATIONAL 27
assessment here leads to the conclusion that the denial of a
preemption claim stemming from the combatant activities
exception would not necessarily entail significant scrutiny of
sensitive military issues. Fundamentally, there is little intru-
sion because the court’s inquiry focuses on whether the con-
tractor complied with the government’s specifications and
instructions, and not the wisdom or correctness thereof. The
Boyle and Saleh decisions themselves well illustrate the lack
of intrusion that would result from deferring review until after
entry of a final judgment. Boyle, for example, involved an
appeal from a jury verdict for the plaintiff, while "the two
appeals in Saleh reached the D.C. Circuit using the normal
machinery of §§ 1291 and 1292(b)." Martin, 618 F.3d at 488.12
Moreover, the district court in Saleh had conducted exten-
sive discovery "regarding the military’s supervision of the
that "the issue of appealability under § 1291 is to be determined . . . with-
out regard to the chance that the litigation at hand might be speeded, or
a particular justice averted, by a prompt appellate court decision." Digital
Equip., 511 U.S. at 868. Although the presence of a "substantial public
interest," or "some particular value of a high order," is a necessary prereq-
uisite to a collateral order appeal, Will, 546 U.S. at 352-53, the identifica-
tion of such a public interest is not the end of the inquiry. As the Supreme
Court explained in Mohawk, "[t]he crucial question . . . is not whether an
interest is important in the abstract; it is whether deferring review until
final judgment so imperils the interest as to justify the cost of allowing
immediate appeal of the entire class of relevant orders." 130 S. Ct. at 606.
12
It is of no moment that the plaintiffs have alleged a conspiracy among
the contractors, their employees, and certain military personnel. The con-
spiracy allegation does not transform this civil action into a challenge to
the government’s policy or interests, or into an attempt to hold its contrac-
tors liable for acting in accord with governmental decisions. Just as in
Saleh, where some of the plaintiffs alleged a similar conspiracy, "there is
no allegation, and no evidence, that" the "low-level soldiers" alleged to be
acting in conspiracy with contractor personnel "had any control, de jure
or de facto, over the" contractor personnel. 580 F.3d at 20 (Garland, J.,
dissenting). As such, these proceedings — like Saleh — constitute direct
challenges only to "the unlawful and unauthorized actions of private con-
tractors," id., based on the pleadings and record to date.
28 AL SHIMARI v. CACI INTERNATIONAL
contract employees as well as the degree to which such
employees were integrated into the military chain of com-
mand," 580 F.3d at 4, with no ill effects. The Fifth Circuit,
while acknowledging that Boyle preemption is underpinned
by "a respect for the interests of the Government in military
matters," has nonetheless reasoned that those interests can be
safeguarded without resort to interlocutory review. Martin,
618 F.3d at 488. For example, a district court "should take
care to develop and resolve such defenses at an early stage
while avoiding, to the extent possible, any interference with
military prerogatives." Id. Additionally, a trial court should
consider "limiting discovery initially to such defenses" and
"certifying orders denying [the] defense[ ] where the law is
unsettled but, after refinement on appeal, might warrant dis-
missing plaintiffs’ claims." Id.13
When properly conducted, suits against private contractors
pose minimal risk that military personnel will be improperly
haled into court or their depositions taken, because "[w]here
discovery would hamper the military’s mission, district courts
can and must delay it." Saleh, 580 F.3d at 29 (Garland, J., dis-
senting) (citing, inter alia, Watts v. SEC, 482 F.3d 501, 508-09
(D.C. Cir. 2007)). Other procedural and substantive rules,
such as Rule 45 of the Federal Rules of Civil Procedure and
the state secrets doctrine, also adequately safeguard military
interests. See id. at 29 n.18 (Garland, J., dissenting). Accord-
ingly, we decline to recognize denials of Saleh preemption as
a new class of collateral order.14 Insofar as it would be
13
The government’s amicus submission agrees, observing that concerns
over postponing review "can and should be addressed by careful limitation
and close supervision of any necessary discovery by the district courts,
and by the use of existing mechanisms for interlocutory appellate review,
including certification under 28 U.S.C. § 1292(b)." Br. for the United
States as Amicus Curiae at 4.
14
And, indeed, it remains to be seen whether we will adopt the substan-
tive concept of "battlefield preemption" espoused by the Saleh majority.
For the purposes of our decision today, however, we assume but do not
decide that such a defense may be available to the appellants.
AL SHIMARI v. CACI INTERNATIONAL 29
founded on the false premise that immediate appeals are nec-
essary in preemption cases to protect the government’s legiti-
mate military interests, such recognition would reflect an
impermissibly indulgent view of appellate jurisdiction.
C.
Before jurisdiction can be invoked under the collateral
order doctrine, a district court must issue a "fully consum-
mated decision" that constitutes "a complete, formal, and . . .
final" resolution of the issue. Abney v. United States, 431 U.S.
651, 659 (1977). In other words, the court’s ruling must be
"the final word on the subject addressed." Digital Equip., 511
U.S. at 867. If a ruling lacks finality, the threshold require-
ment for collateral order review — that the question in dispute
be definitively resolved — is likewise left wanting. See Will
v. Hallock, 546 U.S. 345, 349 (2006) (confining review of
non-final orders to disputed questions conclusively deter-
mined, which raise important non-merits issues that are effec-
tively unreviewable if not immediately appealed).
A question in dispute cannot be said to have been conclu-
sively resolved if a district court "ma[kes] clear that its deci-
sion [is] a tentative one, . . . and that it might well change its
mind" after further proceedings. Jamison v. Wiley, 14 F.3d
222, 230 (4th Cir. 1994). Disputed questions that arise with
respect to claims of immunity are not the exception to that
ironclad rule. Fundamentally, a court is entitled to have before
it a proper record, sufficiently developed through discovery
proceedings, to accurately assess any claim, including one of
immunity. And even a party whose assertion of immunity ulti-
mately proves worthy must submit to the burdens of litigation
until a court becomes sufficiently informed to rule.
Manifestly, with respect to the appellants’ attempts to
invoke Mangold immunity in their respective actions, suffi-
cient information was lacking. The Maryland and Virginia
district courts each perceived that the validity of such invoca-
30 AL SHIMARI v. CACI INTERNATIONAL
tions depended in significant part on whether the contractor
involved was acting within the scope of its agreement with the
United States. One could hardly begin to answer that question
without resort to any and all contracts between the appellants
and the government pertinent to the claims, defenses, and
related matters below. See, e.g., Al-Quraishi v. Nakhla, 728 F.
Supp. 2d 702, 741 n.11 (D. Md. 2010) (reasoning that con-
tract could show, for example, that "‘federal wartime policy-
making’ was not behind Defendants’ alleged actions," in
which case plaintiffs’ "state law claims [would] not intrude
upon the preempted field"). While other evidence and testi-
mony could also be relevant to ascertain the appellants’ busi-
ness relationship with the government in general, and the
parties’ agreed duties and responsibilities in Iraq and at Abu
Ghraib in particular, the analysis must necessarily begin with
the written contract or contracts. Cf. Harris v. Kellogg Brown
& Root Servs., Inc., 618 F.3d 398, 402 (3d Cir. 2010) (reject-
ing appellate jurisdiction for failure of Will’s "conclusively
determined" requirement, where only limited discovery had
been conducted on combatant activities and political question
defenses).15
In dissent, Judge Niemeyer contends that Behrens v. Pelle-
tier, 516 U.S. 299 (1996), and Ashcroft v. Iqbal, 556 U.S. 662
(2009), each a qualified immunity proceeding, provide for
collateral order jurisdiction of the district courts’ orders deny-
ing Mangold immunity, as illustrated by other of our qualified
immunity cases. See post at 88-89, 90-91 (citing McVey v.
Stacy, 157 F.3d 271 (4th Cir. 1998); Jenkins v. Medford, 119
15
As the Virginia district court pointed out, the contracts "will shed
much light on the responsibilities, limitations and expectations that [the
appellants] were bound to honor as government contractors. In addition,
consideration of [their] course of dealing with the government may reveal
whether deviations from the contract occurred and, if so, whether they
were tolerated or ratified." Al Shimari v. CACI Premier Tech., Inc., 657
F. Supp. 2d 700, 717 (E.D. Va. 2009). Of course, the district court can
receive this evidence under seal, or otherwise, if the circumstances so war-
rant.
AL SHIMARI v. CACI INTERNATIONAL 31
F.3d 1156 (4th Cir. 1997) (en banc); Winfield v. Bass, 106
F.3d 525 (4th Cir. 1997) (en banc)). According to Judge Nie-
meyer, Behrens and Iqbal counsel that Rule 12 denials of
immunity invariably constitute final decisions appealable
under § 1291, and those authorities "clearly establish that
these appeals fit comfortably with the Cohen collateral order
doctrine." Post at 80-81.
It is more accurate to say that orders denying dismissal
motions, insofar as those motions are based on immunities
that are not absolute but conditioned on context, such as qual-
ified immunity in a § 1983 action or the derivative immunities
at issue here, are, in accordance with Behrens and Iqbal,
sometimes immediately appealable. Winfield makes the point:
[W]e possess no jurisdiction over a claim that a
plaintiff has not presented enough evidence to prove
that the plaintiff’s version of the events actually
occurred, but we have jurisdiction over a claim that
there was no violation of clearly established law
accepting the facts as the district court viewed them.
106 F.3d at 530. More generally, we would have jurisdiction
over an appeal like the ones attempted here "if it challenge[d]
the materiality of factual issues." Bazan ex rel. Bazan v.
Hidalgo Cnty., 246 F.3d 481, 490 (5th Cir. 2001). By con-
trast, we lack jurisdiction if such an appeal "challenges the
district court’s genuineness ruling — that genuine issues exist
concerning material facts." Id. Of course, "[w]e always have
jurisdiction to determine whether the facts relevant to our
jurisdiction exist." Wireko v. Reno, 211 F.3d 833, 835 (4th
Cir. 2000) (citation omitted).
In Iqbal, the Supreme Court framed the genuineness-
materiality distinction as one between "fact-based" or "ab-
stract" issues of law, with only the latter supplying a proper
foundation for immediate appeal. 556 U.S. at 674 (quoting
Johnson v. Jones, 515 U.S. 304, 317 (1995)). The Iqbal Court
32 AL SHIMARI v. CACI INTERNATIONAL
concluded that whether a particular constitutional right was
clearly established for qualified immunity purposes presents
an abstract issue of law that permits an appeal at the dismissal
stage. See id. at 674-75. Here, as in Iqbal, there is no "vast
pretrial record" to encumber our decisionmaking, id. at 674,
but the issues before us are more factually entrenched and far
less amenable to meaningful analysis by resort merely to the
plaintiffs’ pleadings. Thus, unlike Iqbal, these appeals encom-
pass fact-based issues of law, with the need for additional
development of the record being among those "matters more
within a district court’s ken." Id.
Hence, insofar as an interlocutory appeal of a denial of
immunity requires resolution of a purely legal question (such
as whether an alleged constitutional violation was of clearly
established law), or an ostensibly fact-bound issue that may
be resolved as a matter of law (such as whether facts that are
undisputed or viewed in a particular light are material to the
immunity calculus), we may consider and rule upon it. See
Behrens, 516 U.S. at 313 (deeming appellate jurisdiction to
have been properly asserted over denial of summary judgment
in § 1983 action where adverse ruling was premised on defen-
dant’s alleged conduct having violated clearly established
law); McVey, 157 F.3d at 276 (approving jurisdiction over
similar legal issue at dismissal stage, where appeal did not
"raise factual questions concerning the defendants’ involve-
ment, which would not be appealable").16
Behrens, then, confers jurisdiction of these appeals only if
the record at the dismissal stage can be construed to present
a pure issue of law. We might discern such an issue if we
16
See also Jenkins, 119 F.3d at 1159-60 (noting existence of appellate
jurisdiction over denial of qualified immunity on motion to dismiss, based
in part on defendant’s assertion that alleged violation did not implicate
clearly established constitutional right); Winfield, 106 F.3d at 530 (recog-
nizing jurisdiction over appeal of denial of qualified immunity insofar as
district court ruled on summary judgment that asserted legal right was
clearly established).
AL SHIMARI v. CACI INTERNATIONAL 33
were of the opinion, as the dissenters evidently are, that per-
sons similarly situated to the appellants are inevitably and
invariably immune from suit premised on any and all conduct
occurring (1) when they are in a war zone, by virtue of (2) a
contract with the government. But not even Saleh, which
receives a ringing endorsement in both dissents, went that far.
The court in Saleh adopted the following rule: "During
wartime, where a private service contractor is integrated into
combatant activities over which the military retains command
authority, a tort claim arising out of the contractor’s engage-
ment in such activities shall be preempted." 580 F. 3d at 9.
The D.C. Circuit therefore conditions preemption on the pres-
ence of a certain level of public/private integration, the con-
duct of activities that may be classified as combat, and the
military’s retained prerogative concerning the decisionmaking
process. Though the Saleh court had the luxury of a complete
record developed through discovery to assist it in pondering
those issues, there has been no discovery in the cases at bar,
and the pleadings provide nothing approaching definitive
answers.17
17
Judge Wilkinson, on behalf of our dissenting friends, assumes as fact
that the contractors were "integrated into wartime combatant activities
under control of the U.S. military," post at 41, notwithstanding that there
is no record evidence to support that assumption, or even what "integra-
tion" means in the context of war. Judge Wilkinson appears to equate inte-
gration with the plaintiffs’ assertion of a conspiracy. See post at 41-42
(citing conspiracy allegations of Amended Complaint in Al Shimari in
support of notion "that the contractors here were acting in collaboration
with U.S. military personnel"); see also supra note 12. But there is simply
no reason to believe that the integration of separate entities into a more or
less unified whole is necessarily the legal equivalent of a collaboration or
conspiracy between those entities.
It is also far from clear that, with respect to the torture and abuses
alleged by the plaintiffs, the appellants were "acting under U.S. military
authority," post at 47, as presumed by Judge Wilkinson. If one felt con-
strained to form a conclusion on the authorization question based on the
available record, then one would be better served to reference the pertinent
34 AL SHIMARI v. CACI INTERNATIONAL
Indeed, the questions that will require proper answers in
order to gauge the appellants’ entitlement to immunity have
yet to be fully ascertained. In Mangold v. Analytic Services,
Inc., supra note 3, the relevant issues on appeal from sum-
mary judgment included whether government personnel were
conducting an "official investigation," and whether the con-
tractors’ statements giving rise to potential liability were
responsive to the investigators’ queries, as opposed to being
extraneous thereto. See Mangold v. Analytic Services, Inc., 77
F.3d at 1449-50. Subsequently, in Butters v. Vance Interna-
tional, Inc., supra note 3, also a summary judgment appeal,
we were constrained to decide whether withholding a job pro-
motion from the plaintiff was a "commercial activity," and
whether that employment decision was made by the defendant
or the foreign government with which it had contracted. See
Butters v. Vance International, Inc., 225 F.3d at 465-67. As
with Mangold and Butters, this case too requires careful anal-
ysis of intrinsically fact-bound issues, which may resemble
any or all of the Saleh considerations, and will almost cer-
tainly entail an exploration of the appellants’ duties under
their contracts with the government and whether they
exceeded the legitimate scope thereof.
The appellants are requesting immunity in a context that
has been heretofore unexplored. These are not disputes in
which facts that might be material to the ultimate issue have
been conclusively identified. Moreover, those facts that may
have been tentatively designated as outcome-determinative
are yet subject to genuine dispute, that is, a reasonable fact-
finder could conclude in favor of either the plaintiffs or the
allegations of the plaintiffs that, for example, "CACI knew that the United
States government has denounced the use of torture and other cruel, inhu-
man, or degrading treatment," Al Shimari Amended Complaint at ¶ 95; "L-
3 permitted [its] translators to ignore — repeatedly — the military’s
instructions to abide by the Geneva Conventions," Al-Quraishi Second
Amended Complaint at ¶ 430; and "L-3 affirmatively hid the misconduct
of its employees from the United States military," id. at ¶ 433.
AL SHIMARI v. CACI INTERNATIONAL 35
defendants. See Metric/Kvaerner Fayetteville v. Fed. Ins. Co.,
403 F.3d 188, 197 (4th Cir. 2005). Because the courts’ immu-
nity rulings below turn on genuineness, we lack jurisdiction
to consider them on an interlocutory appeal. See Winfield, 106
F.3d at 530; Bazan, 246 F.3d at 490.18
Thus, although Mangold immunity confers upon those
within its aegis the right not to stand trial, the appellants have
yet to establish their entitlement to it. See Martin, 618 F.3d at
483 (concluding that claims of immunity must be "substan-
tial," and not "merely colorable"). Because these appeals were
taken before the district courts could reasonably render a deci-
sion on the applicability of Mangold and, perhaps, Butters,
there is no collateral order fulfilling the Will requirements for
appealability pursuant to Cohen, and therefore no jurisdiction
in this Court to review any related aspect of the proceedings
below.19
18
The Supreme Court’s recent decision in Filarsky v. Delia, No. 10-
1018, 2012 WL 1288731 (U.S. Apr. 17, 2012), is not at all to the contrary.
The issue in Filarsky, an appeal by a private lawyer from the denial of
qualified immunity in a § 1983 case, was "whether an individual hired by
the government to do its work is prohibited from seeking such immunity."
Id. at *3. The Supreme Court concluded in the negative, and, consistent
therewith, we have not curtailed the opportunity of the appellants herein
to seek immunity from the plaintiffs’ claims; such immunity may yet be
had. It is also worth noting that the appeal in Filarsky was taken only after
the district court had ruled on summary judgment, see id. at *4, ascertain-
ing that the issues in controversy were strictly legal, i.e., whether qualified
immunity could be extended to private parties, and whether the alleged
constitutional violation was one of clearly established law.
19
The same lack of jurisdiction obtains with respect to L-3’s attempted
appeal of the Maryland district court’s denial of its motion to dismiss the
ATS claims, insofar as that appeal is grounded in any of the derivative
immunities we have discussed. See supra note 2 (observing winnowing of
L-3’s ATS arguments from those presented to the district court). Similar
unsettled questions pertaining to potentially relevant considerations such
as agency, the scope of L-3’s duties under the contracts, and the degree
of integration may bear on whether the asserted immunities are properly
"derived" to defeat the plaintiffs’ claims. Further, we agree with the court
36 AL SHIMARI v. CACI INTERNATIONAL
D.
There being no independent basis for appellate jurisdiction
premised on the law-of-war defense, Saleh preemption, or
Mangold immunity, we are without pendent jurisdiction to
further consider the appellants’ contentions that the plaintiffs’
claims present nonjusticiable political questions. Our rejection
of each of the three proffered bases also precludes the exer-
cise of jurisdiction regardless of whether the appellants’ polit-
ical question defense is inextricably intertwined with any of
them, or whether those bases are similarly interdependent
with one another.
IV.
Pursuant to the foregoing, these consolidated appeals must
be dismissed.
APPEALS DISMISSED
DUNCAN, Circuit Judge, concurring:
I respect the majority’s well-reasoned opinion in this case
and therefore fully concur in its conclusion that we lack juris-
diction to hear this appeal. I write separately only to express
below that although the Maryland plaintiffs have sued under the ATS, that
litigation strategy should not be construed as a judicial admission that the
actions of L-3 were those of the United States, thereby crystallizing access
to a sovereign immunity defense and providing, through the denial of such
immunity, an independent basis for appellate jurisdiction. See Al-Quraishi
v. Nakhla, 728 F. Supp. 2d 702, 751-53 (D. Md. 2010). Our conclusion in
that regard is buttressed by Sosa v. Alvarez-Machain, 542 U.S. 692, 732
& n.20 (2004), in which the Supreme Court carefully left open the ques-
tion of whether ATS liability may be imposed on private actors. Obvi-
ously, if the plaintiffs’ ATS claims may be maintained against L-3 as a
private actor but not as an agent of the government acting within the scope
of its agency, L-3’s status is one more issue that may be appropriate for
the district court to resolve following discovery.
AL SHIMARI v. CACI INTERNATIONAL 37
my hope that the district courts in these consolidated appeals
will give due consideration to the appellant’s immunity and
preemption arguments—especially in light of the Supreme
Court’s recent opinion in Filarsky v. Delia, 132 S. Ct. 1657
(2012), as discussed in Judge Niemeyer’s dissent—which are
far from lacking in force.
Judge Agee has authorized me to indicate that he joins in
this concurrence.
WYNN, Circuit Judge, concurring:
I concur fully in the thoughtful and well-reasoned majority
opinion in these cases. I write separately only to underscore
the prudence of the majority’s restraint, which promotes both
"efficient judicial administration" and "the prerogatives of
district court judges, who play a special role in managing
ongoing litigation." Mohawk Indus., Inc. v. Carpenter, 130 S.
Ct. 599, 605 (2009).
With respect to the latter consideration, I feel compelled to
reiterate the majority’s holding that our limited appellate role
leaves us without jurisdiction at this stage of the litigation to
consider the underlying merits of these appeals. Likewise, as
noted in the majority opinion, "facts that might be material to
the ultimate issue have [not yet] been conclusively identified"
in these cases, which are on appeal from motions to dismiss.
Ante at 34.
Accordingly, today’s opinion offers no guidance to the dis-
trict court on the underlying merits of these matters. To do
otherwise would, in my opinion, potentially usurp the role of
the district court or risk overstepping our own. See United
States v. Fruehauf, 365 U.S. 146, 157 (1961) ("Such [advi-
sory] opinions, such advance expressions of legal judgment
upon issues which remain unfocused because they are not
pressed before the Court with that clear concreteness provided
when a question emerges precisely framed and necessary for
38 AL SHIMARI v. CACI INTERNATIONAL
decision from a clash of adversary argument exploring every
aspect of a multifaceted situation embracing conflicting and
demanding interests, we have consistently refused to give.").
Further, to the extent that my colleagues, in separate opinions,
offer their views on the underlying merits of these cases,
those opinions, "by their nature[,] express views that are not
the law." Arar v. Ashcroft, 585 F.3d 559, 581 n.14 (2d Cir.
2009) (en banc).
WILKINSON, Circuit Judge, dissenting:
The majority in this case tries to present its view as some
sort of innocuous jurisdictional disposition. But the jurisdic-
tional ruling is wrong, and the decision is anything but innoc-
uous. It inflicts significant damage on the separation of
powers, allowing civil tort suits to invade theatres of armed
conflict heretofore the province of those branches of govern-
ment constitutionally charged with safeguarding the nation’s
most vital interests.
I fully join Judge Niemeyer’s fine dissent. My good col-
league has ably addressed many of the failings of today’s
decision, and I see no need to repeat those points here. I write
separately only because the difficulties with these actions are
so legion that no single dissent could hope to cover them all.
The majority and I disagree on much, but there is no dis-
agreement about the Abu Ghraib photographs that have appar-
ently inspired this litigation. See ante at 10. Americans of
good will were sickened by those photographs and the
depraved conduct that would be reprehensible whenever,
wherever, and against whomever it was applied. But acknowl-
edging that fact answers only the question of whether this is
a hard case. It does not answer the question whether it is bad
law whose lasting consequences and abiding damage will
long outlive the distressing photographs that have prompted
the suits herein.
AL SHIMARI v. CACI INTERNATIONAL 39
The actions here are styled as traditional ones and wrapped
in the venerable clothing of the common law. Even on com-
mon law terms, however, they are demonstrably incorrect,
and the impact which tort doctrine will have on military oper-
ations and international relations magnifies the difficulties
immeasurably. I dare say none of us have seen any litigation
quite like this and we default if we accept uncritically or
entertain indefinitely this novel a violation of the most basic
and customary precepts of both common and constitutional
law.
Sadly, the majority’s opinion does precisely this. After
reading its decision, one could be forgiven for thinking that
the issue before us is a simple jurisdictional question arising
out of ordinary tort suits. But these are not routine appeals
that can be quickly dismissed through some rote application
of the collateral order doctrine. This case instead requires us
to decide whether the contractors who assist our military on
the battlefield will be held accountable through tort or con-
tract, and that seemingly sleepy question of common law rem-
edies goes to the heart of our constitutional separation of
powers. Tort suits place the oversight of military operations
in an unelected judiciary, contract law in a politically account-
able executive. And in the absence of some contrary expres-
sion on the part of the Article I legislative branch, the basic
principles of Article II require that contractual, not tort, reme-
dies apply.
The majority emphatically decides this weighty question by
pretending not to decide, as its dismissal of these appeals
gives individual district courts the green light to subject mili-
tary operations to the most serious drawbacks of tort litiga-
tion. But arrogating power to the Third Branch in a contest
over military authority is the wrong call under our Constitu-
tion, and there is no garb for this decision so benign as to
obscure the import of what the majority has done.
We tread this territory at our peril. This decision is contrary
to decades of Supreme Court admonitions warning federal
40 AL SHIMARI v. CACI INTERNATIONAL
courts off interference with international relations. Of course
military contractors should be held accountable, and it is
important that a framework be set in place to accomplish this
task. But instead of establishing that framework, the majority
succumbs to mere drift and in so doing places courts in the
most damaging and least defensible legal landscape possible.
None of us have any idea where exactly all this is headed or
whether the damage inflicted on military operations will be
only marginal or truly severe. At a minimum, however,
today’s decision breaches a line that was respected by our pre-
decessors on courts high and low. I would not cross this
boundary even if the collateral order doctrine could cloak my
steps. With all respect for my fine colleagues, I would remand
these actions to the district court with direction that they be
dismissed.
Part I of my dissenting opinion discusses the utter unsuita-
bility of tort actions such as these in the context of an interna-
tional theatre of war. Part II addresses why contract law is
compatible with the separation of powers and the responsibili-
ties allocated the executive branch under Article II of our
Constitution. Part III explains why the majority’s application
of the collateral order doctrine goes beyond being incorrect to
inflicting damage on American interests overseas.
I.
Tort regimes involve well-known tradeoffs. They may pro-
mote the public interest by compensating innocent victims,
deterring wrongful conduct, and encouraging safety and
accountability. However, tort law may also lead to excessive
risk-averseness on the part of potential defendants. And cau-
tion that may be well-advised in a civilian context may not
translate neatly to a military setting, where the calculus is dif-
ferent, and stakes run high. Risks considered unacceptable in
civilian life are sometimes necessary on a battlefield. In order
to secure high-value intelligence or maintain security, the mil-
itary and its agents must often act quickly and on the basis of
AL SHIMARI v. CACI INTERNATIONAL 41
imperfect knowledge. Requiring consideration of the costs
and consequences of protracted tort litigation introduces a
wholly novel element into military decisionmaking, one that
has never before in our country’s history been deployed so
pervasively in a theatre of armed combat.
The majority acquiesces in judicial control over these sensi-
tive military judgments. It opens the door for the plaintiffs to
conduct broad discovery based on boilerplate complaints
alleging a laundry list of state law claims, including "assault
and battery," "sexual assault and battery," "intentional inflic-
tion of emotional distress," and "negligent hiring and supervi-
sion." By allowing such claims to go forward against
contractors integrated into wartime combatant activities under
control of the U.S. military, the majority raises thorny ques-
tions of whose law should apply, compromises the military’s
ability to utilize contractors in the future, and nudges foreign
policy and war powers away from the political branches of the
federal government and into the hands of federal courts. Sim-
ply put, these state tort claims have no passport that allows
their travel in foreign battlefields, and we have no authority
to issue one.
The complaint makes clear, and the contractors do not dis-
pute, that the contractors here were acting in collaboration
with U.S. military personnel. See, e.g., Al Shimari Amended
Complaint ¶¶ 1, 70, 71, 118, 124, 135. The majority nonethe-
less draws the odd distinction that contractors and the military
may be in a "conspiracy" without somehow being "inte-
grated." See ante at 33 n.17. In addition to the forementioned
paragraphs, the complaint in fact provides ample allegations
of integration. For example, the Al-Quraishi plaintiffs claim
that "L-3 employed all the civilian translators used by the mil-
itary in Iraq," Al-Quraishi Amended Complaint ¶ 78, and that
"Defendants’ acts took place during a period of armed con-
flict, in connection with hostilities" in which the U.S. military
was engaged, id. ¶ 280. Indeed, they allege integration so
complete that civilian interrogators were giving orders to mili-
42 AL SHIMARI v. CACI INTERNATIONAL
tary personnel. Id. ¶ 221. For its contrary view, the majority
departs from the well-established rule that we take the asser-
tions of the complaint on a motion to dismiss as true. While
the whole gravamen of the complaint is military-contractor
cooperation and collaboration, the majority would have us
believe they were more akin to strangers in the night.
The majority also suggests that the contractors may have
departed from military instructions. See ante at 33-34 n.17. If
the contractors did depart from the military’s instructions, that
would allow the government to pursue a breach of contract
claim. See infra Part II. Ironically, the complaint itself speaks
specifically in terms of a failure to "abide[ ] by the contract
terms," Al-Quraishi Amended Complaint ¶ 247, even though
the plaintiffs were in no sense a party to the same. But any
breach of contract does not begin to confer a cause of action
in tort on the part of detainees in a theatre of armed conflict.
There is no indication that Congress or any other law-making
authority, federal or state, wanted foreign nationals in deten-
tion to litigate in tort the relationship between military con-
tractors and the U.S. military when the government itself as
a party to the contract has posited no need to do so.
A.
From this point, the problems with this litigation only mul-
tiply. First, due largely to their inventive nature, these suits
present the difficult question of whose law should govern
them. The majority clears the way for one federal court, sit-
ting in Maryland, to apply Iraqi tort law to the alleged conduct
—in an Iraqi war zone—of a Virginia-headquartered contrac-
tor integrated into wartime combatant activities of the U.S.
military, and for another federal court, sitting in Virginia, to
apply Virginia tort law to a similarly situated contractor for
alleged conduct also occurring in an Iraqi war zone. This is,
to put it mildly, no way to run a railroad.
AL SHIMARI v. CACI INTERNATIONAL 43
1.
The court below in Al-Quraishi v. Nakhla, 728 F. Supp. 2d
702 (D. Md. 2010)—applying the principle of lex loci delicti
—decided that "Iraqi law applies to all of Plaintiffs’ state law
claims." Id. at 763.* This conclusion is highly troublesome.
Most fundamentally, the application of Iraqi law against
agents of the U.S. military constitutes a complete surrender of
sovereignty. The majority allows Iraqi citizens who were
imprisoned in an active theatre of war to bring tort suits
against the occupying authority based on Iraqi causes of
action. Such suits are not only novel, to say the least, but also
in conflict with Supreme Court precedent. See, e.g., Dow v.
Johnson, 100 U.S. 158, 165, 170 (1879) (explaining that
occupying forces are not subject to the laws of the occupied
territory); Coleman v. Tennessee, 97 U.S. 509, 515, 517
(1878) (same).
The majority does not point to a single case in which for-
eign citizens were allowed to sue the occupying authority in
its own courts under foreign causes of action. Likewise, it
offers no support for its assertion that Dow and Coleman do
not apply to military contractors, citing only Ford v. Surget,
97 U.S. 594 (1878), a case implying that law-of-war immu-
nity is not limited to uniformed soldiers. See Ford, 97 U.S. at
*The Al-Quraishi district court also declined to dismiss plaintiffs’ Alien
Tort Statute claims because, in its judgment, "Plaintiffs’ claims constitute
recognized violations of the law of nations, appropriately assertable
against Defendants." 728 F. Supp. 2d at 715. Such claims could be pre-
cluded by Kiobel v. Royal Dutch Petroleum Co. (No. 10-1491), in which
the Supreme Court is expected to decide whether "the Alien Tort Statute
. . . provide[s] subject matter jurisdiction over claims against corpora-
tions," Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir.
2010), cert. granted, 132 S. Ct. 472 (Oct. 17, 2011) (Mem), and
"[w]hether and under what circumstances the Alien Tort Statute . . . allows
courts to recognize a cause of action for violations of the law of nations
occurring within the territory of a sovereign other than the United States,"
___ S. Ct. ___, 2012 WL 687061 (Mar. 5, 2012) (Mem).
44 AL SHIMARI v. CACI INTERNATIONAL
606-08 (holding a civilian immune from civil suit for burning
cotton in support of the Confederate military).
Moreover, the majority is simply wrong in suggesting that
the Dow and Coleman Courts were concerned only with pro-
tecting the occupying authority from foreign tribunals, in con-
trast to foreign laws. See, e.g., Dow, 100 U.S. at 165 ("When,
therefore, our armies marched into . . . the enemy’s country,
their officers and soldiers were not subject to its laws, nor
amenable to its tribunals for their acts. They were subject only
to their own government, and only by its laws, administered
by its authority, could they be called to account." (emphases
added)); id. at 170 ("The question here is, What is the law
which governs an army invading an enemy’s country? It is not
the civil law of the invaded country . . . ." (emphasis added));
Coleman, 97 U.S. at 515 ("Officers and soldiers of the armies
of the Union were not subject during the war to the laws of
the enemy, or amenable to his tribunals for offences commit-
ted by them. They were answerable only to their own govern-
ment, and only by its laws, as enforced by its armies, could
they be punished." (emphases added)); id. at 517 (Following
military occupation, "the municipal laws of [the occupied ter-
ritory] . . . remain in full force so far as the inhabitants of the
country are concerned . . . . This doctrine does not affect, in
any respect, the exclusive character of the jurisdiction of the
military tribunals over the officers and soldiers of the army of
the United States . . . ; for, as already said, they were not sub-
ject to the laws nor amenable to the tribunals of the hostile
country." (emphases added)).
The application of Iraqi tort law to U.S. military contractors
creates practical problems as well. American courts are ill-
suited to decide unsettled questions of Iraqi law. The district
court in Al-Quraishi, for instance, considered "Whether Aid-
ing and Abetting and Conspiracy are Recognized Torts Under
Iraqi Law and Whether Iraqi Law Allows Punitive Damages."
728 F. Supp. 2d at 764. The defendants argued that aiding and
abetting and conspiracy are not cognizable causes of action
AL SHIMARI v. CACI INTERNATIONAL 45
under Iraqi tort law, and that punitive damages are not
allowed as a remedy. Id. The plaintiffs disagreed, and the par-
ties "submitted affidavits from Iraqi law experts in support of
their respective positions." Id. Not surprisingly, considering
the difficulty of ascertaining foreign law, the district court
decided to "defer decision with respect to the content of Iraqi
law." Id.
Given that the district court had trouble deciding such rudi-
mentary questions as whether aiding and abetting and conspir-
acy are even causes of action under Iraqi law, and whether
Iraqi law allows punitive damages, how can we expect the
court to decide the far more challenging issues necessary to
a full-scale trial? For instance, how will it decipher the stan-
dard of care for each cause of action, and determine whether
there was a breach? It can rely on expert testimony, of course,
but Iraqi law experts appear to disagree as to whether these
causes of action are even cognizable. See id. Accordingly, the
majority allows a federal court to go forward with litigation
in which Iraqi citizens sue a U.S. contractor working hand-in-
hand with the U.S. military in a war zone under Iraqi causes
of action that may not even exist.
Under the majority’s decision, military contractors face the
prospect of drawn out lawsuits under the substantive tort law
of every country in which they operate. Such a regime is
unworkable in an era where the military has no choice but to
contract with private corporations. In the present cases, for
example, "a severe shortage" of military intelligence person-
nel "prompt[ed] the U.S. government to contract with private
corporations to provide civilian interrogators and interpret-
ers." J.A. 408. This use of private contractors was deemed
essential to the achievement of U.S. military objectives. Yet,
under the reasoning of the Al-Quraishi district court, which
the majority allows to stand, the contractors should have
paused to consider their potential liability under the substan-
tive tort law of Iraq before agreeing to supply the military
needed personnel under the government contract.
46 AL SHIMARI v. CACI INTERNATIONAL
Of course, corporations generally must weigh their poten-
tial liabilities before agreeing to specific projects. The possi-
bility of defending a lawsuit every time a foreign citizen
claims a violation of foreign tort law might substantially alter
the profitability of government contracts. Thus, before agree-
ing to perform the most critical intelligence functions in sup-
port of the U.S. military, contractors would be forced to
investigate and analyze the substantive tort law of every coun-
try in which its employees might work. This unenviable task
would be even more burdensome when the substantive tort
law varies from jurisdiction to jurisdiction within a country,
as it does in the United States.
In other words, a court that understandably had difficulty
deciding such elementary questions as "Whether Aiding and
Abetting and Conspiracy are Recognized Torts Under Iraqi
Law and Whether Iraqi Law Allows Punitive Damages," Al-
Quraishi, 728 F. Supp. 2d at 764, is implying that contractors,
before playing a critical role in the U.S. military effort in Iraq,
should have analyzed the nuances and permutations of every
Iraqi tort law that might conceivably affect them. By forcing
contractors to undertake a highly complex and deeply uncer-
tain legal analysis before aiding our military operations, par-
ticularly those executed quickly and in countries whose legal
systems are unstable and unfamiliar, the majority jeopardizes
the military’s ability to employ contractors in the future.
Like the courts, military contractors must rely on legal
experts to analyze foreign law. One suspects that most Iraqi
legal experts practice law in Iraq, and indeed, the Al-Quraishi
plaintiffs relied on the declaration of an Iraqi attorney
employed at an Iraqi law firm. Should the defendants have
sought counsel from these Iraqi attorneys before helping the
U.S. military with detention and interrogation functions?
Should other contractors, before agreeing to aid in the U.S.
military invasion of Iraq, have reached out to Iraqi lawyers for
advice on the legal ramifications of such an attack under Iraqi
tort law? Until now, these questions seemed far-fetched, but
AL SHIMARI v. CACI INTERNATIONAL 47
they are newly valid considerations under a regime that sub-
jects lawsuit-averse American corporations to the substantive
tort law of Iraq. My point is not at all to disrespect Iraqi law
or lawyers, but to query the feasibility of extensive and uncer-
tain legal inquiries into any foreign law on the eve or in the
execution of military operations.
2.
Unlike the district court in Al-Quraishi v. Nakhla, 728 F.
Supp. 2d 702 (D. Md. 2010), the district court in Al Shimari
v. CACI Premier Technology, Inc., 657 F. Supp. 2d 700 (E.D.
Va. 2009) deferred any ruling on the choice of law issues. See
id. at 725 n.7. As Judge King noted in his dissent from the
now-vacated panel opinion, the Al Shimari plaintiffs argue
that CACI is "liable to them under Virginia law for the torts
of assault and battery, sexual assault, intentional and negligent
infliction of emotional distress, and negligent hiring and
supervision." Al Shimari v. CACI Int’l, Inc., 658 F.3d 413,
427 (4th Cir. 2011) (King, J., dissenting) (emphasis added).
The plaintiffs, after all, are pressing Virginia causes of action,
and thus if the suit is allowed to go forward, the question of
whether Virginia tort law applies extraterritorially must be
seriously asked. The answer to this question is clear: the
application of Virginia tort law to overseas battlefield conduct
by contractors acting under U.S. military authority is as prob-
lematic as the application of Iraqi law.
First, there is no indication whatsoever that the Common-
wealth of Virginia has any interest in having its tort law
applied abroad in these types of cases. Absent a contrary leg-
islative intent, we assume that legislatures do not want their
tort law to apply extraterritorially. For instance, in EEOC v.
Arabian American Oil Co. ("Aramco"), 499 U.S. 244 (1991),
the Supreme Court held that Title VII of the Civil Rights Act
of 1964 does not apply extraterritorially to regulate the
employment practices of U.S. employers who employ U.S.
citizens abroad. Id. at 246-47. In reaching this conclusion, the
48 AL SHIMARI v. CACI INTERNATIONAL
Court relied on the "longstanding principle" that "‘legislation
of Congress, unless a contrary intent appears, is meant to
apply only within the territorial jurisdiction of the United
States.’" Id. at 248 (citation omitted). Given that "Congress
legislates against the backdrop of the presumption against
extraterritoriality," the Court stated, "unless there is ‘the affir-
mative intention of the Congress clearly expressed,’ we must
presume it ‘is primarily concerned with domestic condi-
tions.’" Id. (citations omitted). Ultimately, the Court con-
cluded that the petitioners had failed to provide sufficient
evidence that Congress intended Title VII to apply abroad. Id.
at 259.
Citing Aramco, the Supreme Court recently reiterated these
principles in Morrison v. National Australia Bank Ltd., 130 S.
Ct. 2869 (2010), where it held that § 10(b) of the Securities
Exchange Act of 1934 does not apply extraterritorially. Id. at
2877-78, 2883. The Court reasoned that "[t]he results of
judicial-speculation-made-law—divining what Congress
would have wanted if it had thought of the situation before the
court—demonstrate the wisdom of the presumption against
extraterritoriality." Id. at 2881. "Rather than guess anew in
each case," the Court continued, "we apply the presumption
in all cases, preserving a stable background against which
Congress can legislate with predictable effects." Id.
Similarly, in Gregory v. Ashcroft, 501 U.S. 452 (1991), the
Court concluded that judges must apply a "plain statement
rule" before upsetting the standard constitutional balance of
federal and state powers. Id. at 460-61. "[I]f Congress intends
to alter the usual constitutional balance," the Court explained,
"it must make its intention to do so unmistakably clear in the
language of the statute." Id. at 460 (internal quotation marks
omitted). "In traditionally sensitive areas," the Court contin-
ued, "the requirement of clear statement assures that the legis-
lature has in fact faced, and intended to bring into issue, the
critical matters involved in the judicial decision." Id. at 461
(internal quotation marks omitted).
AL SHIMARI v. CACI INTERNATIONAL 49
Aramco, Morrison, and Gregory all involved the "long-
standing principle" that "‘legislation of Congress, unless a
contrary intent appears, is meant to apply only within the ter-
ritorial jurisdiction of the United States.’" Aramco, 499 U.S.
at 248 (emphasis added) (citation omitted). However, given
that the Constitution entrusts foreign affairs to the federal
political branches, see U.S. Const. art. I, § 8, cls. 1, 11-15; art.
II, § 2, cls. 1-2, limits state power over foreign affairs, see id.
art. I, § 10, and establishes the supremacy of federal enact-
ments over state law, see id. art. VI, cl. 2, the presumption
against extraterritorial application is even stronger in the con-
text of state tort law.
It defies belief that, notwithstanding the constitutional
entrustment of foreign affairs to the national government, Vir-
ginia silently and impliedly wished to extend the application
of its tort law to events overseas. Or further, that it would do
so in active disregard of Supreme Court pronouncements. For
the Court has repeatedly stated that the federal government
has exclusive power over foreign affairs, and that states have
very little authority in this area. In Chae Chan Ping v. United
States, 130 U.S. 581 (1889), for instance, the Court noted,
"‘[T]he United States is not only a government, but it is a
national government, and the only government in this country
that has the character of nationality. It is invested with power
over all the foreign relations of the country, war, peace and
negotiations and intercourse with other nations; all of which
are forbidden to the state governments.’" Id. at 605 (citation
omitted). The Court reiterated these principles in United
States v. Belmont, 301 U.S. 324 (1937), emphasizing that
"[g]overnmental power over external affairs is not distributed,
but is vested exclusively in the national government." Id. at
330. The Belmont Court further noted that "complete power
over international affairs is in the national government and is
not and cannot be subject to any curtailment or interference
on the part of the several states." Id. at 331. Likewise, in
Hines v. Davidowitz, 312 U.S. 52 (1941), the Court stressed
that "[o]ur system of government is such that . . . the interest
50 AL SHIMARI v. CACI INTERNATIONAL
of the people of the whole nation, imperatively requires that
federal power in the field affecting foreign relations be left
entirely free from local interference." Id. at 63.
Such interference is precisely what we invite by ascribing
to the fifty states the unexpressed wish that their tort law gov-
ern the conduct of military operations abroad. The principle
against such interference holds even where the executive
branch insists that the state law does not interfere with the for-
eign relations power. For instance, in Zschernig v. Miller, 389
U.S. 429 (1968), the Supreme Court struck down an Oregon
probate law as "an intrusion by the State into the field of for-
eign affairs which the Constitution entrusts to the President
and the Congress." Id. at 432. Although "[t]he several States
. . . have traditionally regulated the descent and distribution
of estates," the Court concluded, "those regulations must give
way if they impair the effective exercise of the Nation’s for-
eign policy." Id. at 440. In its brief amicus curiae, the Depart-
ment of Justice stated, "The government does not . . . contend
that the application of the Oregon escheat statute in the cir-
cumstances of this case unduly interferes with the United
States’ conduct of foreign relations." Id. at 434. The Court
disregarded this statement, reasoning that the state action
might cause "disruption or embarrassment" that the Justice
Department failed to appreciate. Id. at 434-35, 441. In concur-
rence, Justice Stewart was even less deferential toward state-
ments from the executive branch:
We deal here with the basic allocation of power
between the States and the Nation. Resolution of so
fundamental a constitutional issue cannot vary from
day to day with the shifting winds at the State
Department. Today, we are told, Oregon’s statute
does not conflict with the national interest. Tomor-
row it may.
Id. at 443 (Stewart, J., concurring).
AL SHIMARI v. CACI INTERNATIONAL 51
3.
So too here, we are hardly required to defer to the Justice
Department’s statements that these cases should go forward.
The Department urges us to
hold that state tort law claims against contractors are
generally preempted if similar claims brought
against the United States would come within the
FTCA’s combatant activities exception and if the
alleged actions of the contractor and its personnel
occurred within the scope of their contractual rela-
tionship with the government, particularly if the con-
duct occurred while contractor personnel were
integrated with the military in its combat-related
activities.
Br. of United States at 2-3.
So far, so good. And one would think that this would be the
end of it. However, the Department carves out an exception
where "a contractor has committed torture as defined in 18
U.S.C. § 2340," the federal anti-torture statute. Id. at 3. The
government then elaborates further on its proposed exception
by implying that state-law tort remedies need not be available
going forward "in light of measures subsequently instituted by
Congress and the Executive Branch, and other developments
in the aftermath of Abu Ghraib." Id. at 23. Like the Justice
Department’s brief in Zschernig, this vaguely explained and
inexplicably derived exception is not entitled to deference by
this court. As the Supreme Court only recently reiterated,
"[T]he separation of powers does not depend on . . . whether
‘the encroached-upon branch approves the encroachment.’"
Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd.,
130 S. Ct. 3138, 3155 (2010) (quoting New York v. United
States, 505 U.S. 144, 182 (1992)).
The government does not point to a single expression of
congressional intent in support of permitting state law tort
52 AL SHIMARI v. CACI INTERNATIONAL
claims to apply overseas based solely on the nature of the
allegations. Instead, it asserts that "in the limited circum-
stances where the state law claim is based on allegations that
the contractor committed torture, as defined in 18 U.S.C.
§ 2340, courts should take into account the strong federal
interests embodied in that federal law." Br. of United States
at 22. In these circumstances, the government suggests, "the
totality of the federal interests is different and does not require
that state-law tort suits against contractors be preempted." Id.
at 3.
It is difficult to see how 18 U.S.C. § 2340—which exhibits
an interest in punishing torture through federal criminal
prosecution—demonstrates any congressional interest in per-
mitting torture-based state tort claims. The federal anti-torture
statute, 18 U.S.C. § 2340 et seq., does not even contain a pri-
vate right of action. And in any event, courts have no license
to create exceptions based on helter-skelter application of fed-
eral criminal statutes, exceptions that permit otherwise pre-
empted state tort claims to go forward.
It is elemental that a federal court cannot simply engraft on
its own a federal criminal law standard onto state tort claims.
The federal judiciary is not permitted to reconfigure the ele-
ments of a state law cause of action. For as the "[Supreme]
Court recognized in [Lingle v. Norge Division of Magic Chef,
Inc., 486 U.S. 399 (1988),] the responsibility for defining the
elements and scope of a state cause of action rests with the
state legislature and state courts." Childers v. Chesapeake &
Potomac Tel. Co., 881 F.2d 1259, 1265 (4th Cir. 1989).
This court requested the government’s submission of an
amicus brief here, and I am appreciative of that submission.
However, the government’s amicus position is at odds with its
own conduct. If the government believes that there have been
contractual or criminal violations on the part of its own con-
tractors, then it should proceed to exercise its unquestioned
contractual and prosecutorial authority to go after the culpable
AL SHIMARI v. CACI INTERNATIONAL 53
party. See infra Part II.B. If it does not believe such violations
have occurred, it should say so. But given the significance of
this case, the exclusive competence of the federal government
in the field of foreign affairs, and the principles articulated in
Aramco, Morrison, and Gregory, neither the federal executive
nor the federal judiciary is entitled to assume that states want
their tort law applied extraterritorially absent a plain statement
to the contrary.
Here there is no indication that the Commonwealth of Vir-
ginia intended to apply its laws of assault, battery, sexual
assault, intentional and negligent infliction of emotional dis-
tress, and negligent hiring and supervision to the battlefield
conduct of contractors integrated into the wartime activities
abroad of the U.S. military. A state’s interest in employing a
tort regime is largely confined to tortious activity within its
own borders or against its own citizens. It is anything but
clear that Virginia has any interest whatsoever in providing
causes of action that allow foreign citizens that have never set
foot in the Commonwealth to drag its own corporations into
costly, protracted lawsuits under who-knows-what legal
authority.
Notwithstanding the presumption against extraterritorial
application of state law and the absence of any indication that
the Commonwealth wants its tort law applied to battlefield
conduct, the Al Shimari plaintiffs ask the district court to
apply Virginia tort law to war-zone conduct that took place
over 6,000 miles away. It is difficult to find a limiting princi-
ple in the plaintiffs’ analysis. Under their approach, Virginia
tort law—and the tort regimes of all fifty states—can be
applied to conduct occurring in every corner of the earth. By
allowing plaintiffs’ causes of action to go forward, the major-
ity lends its imprimatur to the extraterritorial application of
state tort law. Reading the majority’s opinion, I wonder if my
friends will next launch state tort law into outer space.
54 AL SHIMARI v. CACI INTERNATIONAL
4.
Even if the Commonwealth had somehow intended the
extraterritorial application of its tort law, which it has not, the
Supreme Court has made clear that state laws aimed at influ-
encing foreign relations cannot stand when they conflict with
federal objectives. In Crosby v. National Foreign Trade
Council, 530 U.S. 363 (2000), for example, the Court invali-
dated a Massachusetts law that restricted state agencies from
purchasing goods or services from companies doing business
with Burma. Id. at 366. The Court reasoned that the state law
was "an obstacle to the accomplishment of Congress’s full
objectives" under a federal law that directed the President to
develop a comprehensive, multilateral strategy toward Burma.
Id. at 369, 373. By "imposing a different, state system of eco-
nomic pressure against the Burmese political regime," the
Court explained, "the state statute penalizes some private
action that the federal Act (as administered by the President)
may allow, and pulls levers of influence that the federal Act
does not reach." Id. at 376. Consequently, the Court
explained, the Massachusetts law could not stand because it
"compromise[d] the very capacity of the President to speak
for the Nation with one voice in dealing with other govern-
ments." Id. at 381.
Similarly, in American Insurance Ass’n v. Garamendi, 539
U.S. 396 (2003), the Court struck down California’s Holo-
caust Victim Insurance Relief Act, which required any insurer
doing business in the state to disclose information about
Holocaust-era insurance policies. Id. at 401. The Court began
by noting,
There is . . . no question that at some point an exer-
cise of state power that touches on foreign relations
must yield to the National Government’s policy,
given the ‘concern for uniformity in this country’s
dealings with foreign nations’ that animated the
AL SHIMARI v. CACI INTERNATIONAL 55
Constitution’s allocation of the foreign relations
power to the National Government in the first place.
Id. at 413 (citation omitted). In the context of Holocaust-era
insurance claims, explained the Court, "California seeks to
use an iron fist where the President has consistently chosen
kid gloves." Id. at 427. Accordingly, the Court held that the
state statute was preempted because it "interferes with the
National Government’s conduct of foreign relations." Id. at
401.
Under Crosby and Garamendi, states are prohibited from
obstructing the foreign policy objectives of the federal gov-
ernment. There can be no question that there is obstruction
here, where the federal law, speaking with one voice, can
potentially be supplanted by the fifty different voices of vary-
ing state tort regimes, each one potentially working at cross-
purposes with federal aims. Thus, even if Virginia wanted to
extend its tort law to overseas battlefield conduct of military
contractors, it cannot create an "obstacle to the accomplish-
ment of Congress’s full objectives" under federal law.
Crosby, 530 U.S. at 373. Because Congress has emphatically
forbid tort law from governing battlefield conduct, any
attempt to "impos[e] a different, state system" on the battle-
field, id. at 376, would impermissibly "interfere[ ] with the
National Government’s conduct of foreign relations," Gara-
mendi, 539 U.S. at 401.
B.
In contrast to the Commonwealth of Virginia, Congress has
a constitutionally protected role in foreign affairs. See U.S.
Const. art. I, § 8, cls. 1, 11-15. Congress undoubtedly has the
power to allow private parties to pursue tort remedies against
war-zone contractors operating under military authority.
"[T]he Constitution contemplated that the Legislative Branch
have plenary control over . . . regulations, procedures and
remedies related to military discipline . . . ." Chappell v. Wal-
56 AL SHIMARI v. CACI INTERNATIONAL
lace, 462 U.S. 296, 301 (1983). Congress could thus do what
the majority has asserted its own right to do, namely to autho-
rize foreign nationals as private attorneys general to police
contractor conduct in theatres of armed combat. However,
contrary to the plaintiffs’ assertions, there is no indication that
Congress has pursued any such course.
Plaintiffs contend that the Federal Tort Claims Act
("FTCA") permits private parties to bring state law tort suits
against military contractors for wartime conduct. In analyzing
this claim, we must adhere to the longstanding presumption
that Congress does not permit private parties to interfere with
military operations absent explicit statutory authorization.
"[U]nless Congress specifically has provided otherwise,
courts traditionally have been reluctant to intrude upon the
authority of the Executive in military and national security
affairs," Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988),
and this hesitance to transgress constitutional boundaries
applies fully to our interpretation of statutes. See Feres v.
United States, 340 U.S. 135, 146 (1950) (declining to read the
FTCA’s broad waiver of sovereign immunity to allow mili-
tary personnel to sue the government for service-related inju-
ries even though no provision explicitly prevents them from
doing so); see also United States v. Johnson, 481 U.S. 681,
690 (1987) (reaffirming the holding in Feres because "suits
brought by service members against the Government for inju-
ries incurred incident to service . . . are the ‘type[s] of claims
that, if generally permitted, would involve the judiciary in
sensitive military affairs at the expense of military discipline
and effectiveness.’" (emphasis in original) (citation omitted)).
To adopt plaintiffs’ reading of the FTCA would require us
to abandon this tradition of restraint. This broadly phrased
statute does not contain anything close to a congressional
authorization to private parties to hale war-zone military con-
tractors into civilian courts. At most, it provides that "the term
‘Federal agency’ . . . does not include any contractor with the
United States." 28 U.S.C. § 2671. But that broad definitional
AL SHIMARI v. CACI INTERNATIONAL 57
provision does not mean that "contractors . . . are expressly
excluded from the FTCA’s reach" in the area of battlefield
torts. Al Shimari, 658 F.3d at 435 (King, J., dissenting). For
a "general statutory rule usually does not govern unless there
is no more specific rule," Green v. Bock Laundry Mach. Co.,
490 U.S. 504, 524 (1989), but here there is another provision
of the FTCA that speaks more specifically to whether military
contractors are immune from these tort actions.
That provision is the combatant activities exception, which
preserves the government’s sovereign immunity against
"[a]ny claim arising out of the combatant activities of the mil-
itary or naval forces, or the Coast Guard, during time of war."
28 U.S.C. § 2680(j). Multiple textual clues in this exception
indicate that Congress wanted to keep tort law out of the bat-
tlefield regardless of a defendant’s status as a soldier or a con-
tractor.
To start with, the exception bars claims "arising out of"
combatant activities, id., and this phrase is among the broad-
est in the law. "[I]n workmen’s compensation statutes," for
instance, "[t]he arising-out-of test is a familiar one used . . .
to denote any causal connection between the term of employ-
ment and the injury." Saleh v. Titan Corp., 580 F.3d 1, 6
(D.C. Cir. 2009) (emphasis in original) (footnote omitted).
Indeed, the use of this phrase in other FTCA exceptions has
precluded a wide range of actions. For instance, the "sweep-
ing language" of 28 U.S.C. § 2680(h)—which preserves the
government’s sovereign immunity against claims "arising out
of assault [or] battery"—bars not only battery actions, but
negligence claims that "stem from a battery" as well. United
States v. Shearer, 473 U.S. 52, 55 (1985) (plurality opinion);
see also Kosak v. United States, 465 U.S. 848, 854 (1984)
(equating "arising in respect of" in 28 U.S.C. § 2680(c) with
"arising out of" and observing that the former "encompassing
phrase . . . seems to sweep within the exception all injuries
associated in any way with the ‘detention’ of goods"). Con-
gress wanted to forbid tort suits stemming from combatant
58 AL SHIMARI v. CACI INTERNATIONAL
activities, and it chose in "[a]ny claim arising out of" a broad
and widely recognized prohibitory term.
The exception’s use of the term "combatant activities" does
not denote a narrow subset of military operations but a legis-
lative intention to prevent tort from entering the battlefield.
This term encompasses "not only physical violence, but activ-
ities both necessary to and in direct connection with actual
hostilities," Johnson v. United States, 170 F.2d 767, 770 (9th
Cir. 1948), and therefore has a considerable sweep. As the
Supreme Court has noted, this provision "paint[s] with a far
broader brush" than other FTCA exceptions that bar suits aris-
ing out of a subset of harms associated with a particular area.
See Dolan v. U.S. Postal Serv., 546 U.S. 481, 489-90 (2006)
(contrasting the combatant activities exception in § 2680(j)
with § 2680(b), which preserves immunity for "just three
types of harm" associated with mail delivery). Given the
broad language of the combatant activities exception, it is dif-
ficult to believe that Congress wanted the sensibilities of tort
to govern the realities of war.
Indeed, as the District of Columbia Circuit recognized, "the
policy embodied by the combatant activities exception is sim-
ply the elimination of tort from the battlefield." Saleh, 580
F.3d at 7. Congress insulated the theatre of war from tort law
because it "recognize[d] that during wartime encounters no
duty of reasonable care is owed to those against whom force
is directed as a result of authorized military action." Koohi v.
United States, 976 F.2d 1328, 1337 (9th Cir. 1992). In order
to shield "[a]ny claim arising out of the combatant activities
of the military" from tort liability, Congress used some of the
broadest language possible when drafting this exception. It is
not our role to dismember this exclusion’s text in order to
determine when and to what extent torts can arise from com-
batant activities after all.
If this textual evidence were not enough, the Supreme
Court has refused to read the FTCA to authorize tort suits
AL SHIMARI v. CACI INTERNATIONAL 59
against defense contractors, albeit in a slightly different con-
text. See Boyle v. United Techs. Corp., 487 U.S. 500, 511-12
(1988). The contractor in Boyle provided a helicopter for the
military rather than aid in a war-zone, id. at 502, but the logic
is the same. Because the FTCA’s discretionary function
exception precluded suits against the government for design
defects in military equipment, Boyle held that it barred those
actions against defense contractors as well. Id. at 511-12. As
the Court observed, "[i]t makes little sense to insulate the
Government against financial liability . . . when the Govern-
ment produces the equipment itself, but not when it contracts
for the production." Id. at 512.
I recognize that the temptation exists to exalt the brave men
and women who defend our nation in time of war, and then,
in the next breath, to disparage contractors as some sort of
evil twin responsible for wars’ inevitable missteps and
excesses. But the FTCA does not permit such a dichotomy. It
makes even less sense than in Boyle to shield the military
from litigation for the battlefield activities of soldiers but not
contractors. In Boyle, the Supreme Court did not even require
a military-specific exception before insulating military con-
tractors from design-defect liability. Instead, the Court relied
on the discretionary function exception, which is not specific
to military operations but instead broadly precludes claims
"based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the
part of a federal agency or an employee of the Government."
28 U.S.C. § 2680(a); Boyle, 487 U.S. at 511-12. Here, by con-
trast, Congress has provided an exception that singles out
claims "arising out of . . . combatant activities." 28 U.S.C.
§ 2680(j). If the Supreme Court was willing to read the former
general provision to cover military contractors, it would not
hesitate to do the same with the latter more targeted excep-
tion.
In addition to enacting the combatant activities exception,
Congress has indicated its desire to keep tort law off the bat-
60 AL SHIMARI v. CACI INTERNATIONAL
tlefield by subjecting certain military contractors to other
forms of discipline for war-zone conduct. For instance, the
Uniform Code of Military Justice ("UCMJ") applies not only
to members of our military, but to "persons serving with or
accompanying an armed force in the field" in "time of
declared war or a contingency operation" as well. 10 U.S.C.
§ 802(a)(10). The Military Extraterritorial Jurisdiction Act
likewise subjects these contractors to domestic criminal sanc-
tions by punishing anyone who, "while employed by or
accompanying the Armed Forces" abroad, "engages in con-
duct outside the United States that would constitute an offense
punishable by imprisonment for more than 1 year if the con-
duct had been engaged in within the special maritime and ter-
ritorial jurisdiction of the United States." 18 U.S.C.
§ 3261(a)(1). Unlike the application of state tort law, these
procedures for holding contractors accountable were approved
by Congress.
Ignoring the military risks and legal constraints that pro-
hibit extraterritorial application of state tort law, the majority
inserts tort into the battlefield by allowing these suits to go
forward. But before applying state tort law to the combat
activities of contractors working under the U.S. military, we
should make certain that the legislative branch has authorized
us to do so. As the Supreme Court explained in United States
v. Stanley, 483 U.S. 669 (1987), "[T]he insistence . . . with
which the Constitution confers authority over the Army,
Navy, and militia upon the political branches . . . counsels
hesitation in our creation of damages remedies in this field."
Id. at 682. Because I find no evidence that Congress has
recruited private parties—much less foreign nationals—to
police the frontline, I cannot join my colleagues’ decision to
the contrary.
C.
Instead of deferring to Congress’s valid exercise of its con-
stitutionally granted powers, the majority places contractor
AL SHIMARI v. CACI INTERNATIONAL 61
accountability in the hands of the unaccountable. Thanks to
the majority’s efforts, contractors that were previously subject
to the control of the executive have new judicial masters. But
when unelected judges render contestable decisions about
military policy in the course of applying tort law to contrac-
tors, the public will be unable to remove them from their
posts. This flies in the face of our constitutional tradition of
ensuring some popular control over the prosecution of a war.
As the Supreme Court has explained, "[M]atters of warmak-
ing belong in the hands of those who are . . . most politically
accountable for making them." Hamdi v. Rumsfeld, 542 U.S.
507, 531 (2004) (plurality opinion).
No one will contend that tort law, however derived and
defined, is a field excelling in precision. The vagueness and
indeterminacy of these cut-and-paste causes of action will
permit judicial discretion and jury variability to govern this
most sensitive of areas. Courts must henceforth set the stan-
dards of care in matters of wartime captures, detentions, and
interrogations as well as the measure of damages for the
same. Not only that, but methods of interrogation and pro-
curement of intelligence will be at the sufferance of a single
judicial officer, safely ensconced in a secure courtroom, pass-
ing judgment on battlefield conduct thousands of miles away.
Litigants will plead as a matter of course to the breach of
whatever may seem the prevailing standard of care, thus set-
ting in motion logistical problems inherent in transcontinental
tort suits of such novel stripe.
The results of the rising tide of litigation will be both
unpredictable and contradictory, as particular judges and
juries debate and disagree over which methods of detention
and interrogation are permissible. And as detention of the
enemy becomes a more litigious enterprise, the incentives to
shortcut capture with more lethal and unmanned measures
may rise. Whether or not one approves of transplanting the
delicacy and etiquette of the judicial branch into a theatre of
war is not the question. These lawsuits presage a massive
62 AL SHIMARI v. CACI INTERNATIONAL
transfer of authority reserved to the political branches under
Articles I and II of our Constitution into judicial hands, and
to a single trial judge and jury to boot. This is a subject one
would expect Congress to address in great and meticulous
detail, as it has, for example, in the Military Commissions Act
of 2009, Pub. L. 111-84, 123 Stat. 2190, 2574-614, the Mili-
tary Commissions Act of 2006, Pub. L. 109-366, 120 Stat.
2600, and the Detainee Treatment Act of 2005, Pub. L. 109-
148, 119 Stat. 2739, and I respectfully take issue with the
matter-of-fact manner in which the gravity of the step taken
is not even acknowledged by the majority, much less
addressed.
By opening the door to the extraterritorial application of
different state tort regimes, the majority allows for unlimited
variation in the standard of care that is applied to critical com-
batant activities. There is not a widely agreed upon standard
of care for overseas detentions and interrogations, and differ-
ent states will allow different causes of action to go forward
and will apply different standards to them. And even if there
were an agreed upon standard—which there is not—particular
judges and juries would apply that standard inconsistently.
Such a standard would probably bottom out on some version
of reasonableness. But in the context of detention and interro-
gation, what exactly does reasonableness mean? That question
could provoke innumerable answers, and the very vagueness
of tort formulations as to the standard of care means that civil-
ian jurors will be setting the standards for detention and inter-
rogation of military detainees without knowledge of
conditions that obtain in a zone of combat halfway across the
globe. I imply no disrespect of jurors who give of their time
and good sense to our system of justice, but this system will
provide no guidance and no predictability whatsoever because
it will leave the conduct of military functions to the fortuities
of litigious hindsight.
Contractors can be forgiven for not wanting to entrust their
employees to the vagaries and caprice of individual verdicts
AL SHIMARI v. CACI INTERNATIONAL 63
and trials. Add to that the prospect of punitive damages and
other uncertain measures of recovery, and one will introduce
into the detention and interrogation process a degree of risk
aversion that could well result in the gathering of as little vital
intelligence as possible. While some may regard reduced
interrogations with satisfaction, those whose lives and for-
tunes depend upon the acquisition of vital intelligence are not
likely to join any chorus of approval.
The majority’s response is undoubtedly that all these ques-
tions remain to be "ironed out." But such words are small
comfort to those who must make critical decisions in the field
while we sit here in Virginia or Maryland or whatever other
venue is doing the "ironing."
By dismissing these appeals, the majority only drifts and
dawdles, sparing itself the need to come to grips with the
issues, and kicking the can far down the road. The majority
fails to recognize that this is a matter of some urgency. Just
for starters, commanders in the field need actionable battle-
field intelligence in order for soldiers to survive. Few wars
have been or will be prosecuted successfully without intelli-
gence that permits units to plan accurate strikes against enemy
forces, and every bit as importantly, to know when lethal
force is plotted against Americans themselves. Actionable
intelligence has always had both offensive and defensive
value. In other words, intelligence not only assists us in pre-
vailing; it saves American lives.
While there is legitimate debate about how intelligence is
best obtained, a tort suit is probably the very worst forum in
which that issue can or should be resolved. The judges and
juries who review those matters cannot fairly be expected to
possess a background in the utility of different forms of mili-
tary intelligence, and to ask them to decide such sensitive,
delicate, and complicated questions is, in a word, unrealistic.
See Carmichael v. Kellogg, Brown & Root Servs., Inc., 572
F.3d 1271, 1286-87 (11th Cir. 2009) (explaining that military
64 AL SHIMARI v. CACI INTERNATIONAL
intelligence-gathering is traditionally insulated from judicial
review); United States v. Truong Dinh Hung, 629 F.2d 908,
913-14 (4th Cir. 1980) (noting that "the courts are unschooled
in diplomacy and military affairs, a mastery of which would
be essential to passing upon" matters of intelligence). None of
this is to say, of course, that military contractors are without
fault or that abuses should ever go unremedied. It is simply
to make the point that something as mischievous as the place-
ment of tort law in military calculations should be approved
by some body capable of appreciating the consequences of its
action and constitutionally entrusted with the task.
II.
A.
While the present suits may focus upon methods of interro-
gation and conditions of detention, the issue is larger even
than that. In assuming that tort suits are a preferred method of
policing the contractors who assist military operations, the
majority obscures the fact that there exists a more proper rem-
edy in this area. In the absence of some contrary expression
by the Congress, the most basic precepts of separation of
powers require that the alleged abuses of military contractors
must be addressed through the medium of contract, not
through tort. In short, without a clear manifestation of Article
I congressional intent, Article II mandates that contractual,
not tort remedies, be utilized.
It is a truism that government, including the military, must
contract. Few, if any, governmental tasks are undertaken
today without some form of public-private partnership. The
federal government routinely carries out sensitive public func-
tions through private entities, from running background
checks, see United States v. Virginia, 139 F.3d 984, 986 (4th
Cir. 1998), to rehabilitating prisoners, see Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 63 n.1 (2001), to investigating crimi-
nal activity, see United States v. Warshak, 631 F.3d 266, 320
AL SHIMARI v. CACI INTERNATIONAL 65
(6th Cir. 2010). Assisting with combat operations is no differ-
ent. There is "ample evidence that the military finds the use
of civilian contractors in support roles to be an essential com-
ponent of a successful war-time mission." Lane v. Hallibur-
ton, 529 F.3d 548, 554 (5th Cir. 2008). The Department of
Defense "employs around 170,000 military contractors on a
yearly basis, having more than doubled its use of contracting
services since 2001." Lauren Groth, Transforming Account-
ability: A Proposal for Reconsidering how Human Rights
Obligations Are Applied to Private Military Security Firms,
35 Hastings Int’l & Comp. L. Rev. 29, 38 (2012).
Apart from being necessary, the military’s partnership with
private enterprise has salutary aspects as well. For one thing,
it permits our all-volunteer military to handle troop shortages
in a cost-efficient manner. According to the Army Field Man-
ual, "[r]ecent reductions in military structure, coupled with
high mission requirements and the unlikely prospect of full
mobilization, mean that to reach a minimum of required levels
of support, deployed military forces will often have to be sig-
nificantly augmented with contractor support." U.S. Dep’t of
the Army, Field Manual 3-100.21, Contractors on the Battle-
field Preface (2003). Because of these changes in our military,
"the future battlefield will require ever increasing numbers of
often critically important contractor employees." Id.
These partnerships also allow the military and its contrac-
tors to pool their respective expertise and bring the best of
public service and private industry to bear on the mission at
hand. This reliance on contractor expertise will become only
more necessary as warfare becomes more technologically
demanding. As the Army Field Manual notes, "the increas-
ingly hi-tech nature of our equipment . . . [has] significantly
increased the need to properly integrate contractor support
into all military operations." Id. War is not a static enterprise,
and our military will need every bit of the edge that techno-
logical expertise affords in order to face the hostilities of the
66 AL SHIMARI v. CACI INTERNATIONAL
future. Only the clueless believe future battlefields will not
prominently feature private contractors.
B.
Given these realities, it is illusory to pretend that these suits
are simply ordinary tort actions by one private party against
another. Instead, because contractors regularly assist in "the
type of governmental action that was intended by the Consti-
tution to be left to the political branches directly responsible
. . . to the electoral process," see Gilligan v. Morgan, 413 U.S.
1, 10 (1973), a decent respect for the separation of powers
compels us to consider what sort of remedy would best ensure
the authority of the executive over those with whom it part-
ners in carrying out what are core executive functions. The
answer is obvious. Unlike tort, contract law gives the execu-
tive branch a mechanism of control over those who regularly
assist the military in performing its mission.
For one thing, contract law is a more textually precise field
than tort law, allowing the executive branch to set the stan-
dard of care in the terms of the contract. In contrast to tort
suits in which judges would have to decide what constitutes
a "reasonable bombing," McMahon v. Presidential Airways,
Inc., 502 F.3d 1331, 1350 (11th Cir. 2007), a "prudent inter-
cept," Tiffany v. United States, 931 F.2d 271, 279 (4th Cir.
1991), or a legitimate interrogation method, contract cases
would turn on more definite language in the contract itself—
language that reflected the policy choices of a democratically
accountable branch. Rather than rely on the judicial applica-
tion of some indeterminate standard of reasonable care, the
executive branch could require contractors to abide by well-
established military rules and manuals in the terms of its con-
tractual agreement. For instance, the government could direct
military contractors to "adhere to the standards of conduct
established by the operational or unit commander." See Ibra-
him v. Titan Corp., 556 F. Supp. 2d 1, 6 (D.D.C. 2007) (inter-
nal quotation mark and citation omitted). Focusing on the
AL SHIMARI v. CACI INTERNATIONAL 67
government’s contract rather than theories of tort would also
ensure that important federal interests were not "left to the
vagaries of the laws of the several States," but instead "gov-
erned by uniform rules" in the contracts themselves. Carlson
v. Green, 446 U.S. 14, 23 (1980). The majority, however,
appears to prefer judicial supervision through malleable and
multiple tort standards to executive control through clearer
and more consistent contractual provisions.
Contract law also gives the executive branch, as party to
the contract, the opportunity to pursue a variety of remedies.
In addition to being able to sue a contractor in the event of a
breach, the executive can create more tailored sanctions in the
terms of the contract itself. The government, for example,
could contractually reserve the right to demand that its con-
tractor "remove . . . any employee for reasons of misconduct,"
see Ibrahim, 556 F. Supp. 2d at 7 (omission in original),
thereby allowing it to jettison bad apples without jeopardizing
an entire military operation.
These contractual tools are not the only ones available to
the executive branch. They are augmented by a web of regula-
tions to which contractors subject themselves by partnering
with the military. Army Regulations, for example, permit
commanders to "apprehend and detain contractors for viola-
tions of the law" as well as "restrict or revoke . . . access to
Army facilities or installations for disciplinary infractions."
Army Reg. 715-9 § 4-2(e). What is more, the government can
pursue military sanctions against contractors for battlefield
misconduct under the UCMJ, see 10 U.S.C. § 802(a)(10), as
well as domestic criminal punishments against contractors for
crimes committed abroad, see 18 U.S.C. § 3261(a)(1). Just
within this circuit, in United States v. Passaro, 577 F.3d 207
(4th Cir. 2009), a "paramilitary contractor" was convicted of
federal assault charges arising out of the lethal interrogation
of a detainee in Afghanistan. See id. at 210-12. The govern-
ment has employed its prosecutorial powers to punish rogue
interrogators in the past, and I see little reason why it would
68 AL SHIMARI v. CACI INTERNATIONAL
forswear the use of such sanctions in the future. See Saleh,
580 F.3d at 2 (noting that in the wake of the events at Abu
Ghraib, the executive branch obtained convictions of a num-
ber of soldiers involved and pursued "extensive investiga-
tions" into allegations of abuse by contractors).
When combined with contractual tools, these laws provide
the executive branch with an arsenal of remedies ranging
from removal of a specific contractor to criminal punishment.
The executive requires "a degree of discretion" in the area of
national security, see United States v. Curtiss-Wright Export
Corp., 299 U.S. 304, 320 (1936), and this selection of sanc-
tions gives it an appropriate amount of flexibility. Because the
military and its contractors are tightly bound, litigation in fed-
eral court often subjects both to judicial process. Unlike tort
suits instigated at the behest of private parties, contractual and
criminal enforcement permits the executive to protect military
commanders and contractors from being "unnecessarily and
dangerously distracted by litigation half a world away" and to
prevent "discovery into military operations" from "intrud[ing]
on the sensitive secrets of national defense." See Hamdi, 542
U.S. at 532 (plurality opinion).
In sum, it is silly to think that without tort suits, military
contractors will simply be wandering around war zones uns-
upervised. What the chain of command does for military offi-
cers, contract law does for military contractors. As the Army
Field Manual notes, "The military chain of command exer-
cises management control through the contract." U.S. Dep’t of
the Army, Field Manual, supra, § 1-25. "[P]roper military
oversight of contractors is imperative" to integrating these pri-
vate actors into military operations, id. § 1-23, and contract
law achieves this goal in ways that tort law cannot. Even
though contractors are not formally "part of the operational
chain of command," they are "managed in accordance with
the terms and conditions of their contract" through the Con-
tracting Officer Representative, who "serves as the opera-
tional commander’s primary oversight." Army Reg. 715-9
AL SHIMARI v. CACI INTERNATIONAL 69
§ 4-1(c)-(d). Thus, contract law ensures that these contractors
are "subject to military direction, even if not subject to normal
military discipline." Saleh, 580 F.3d at 7. In other words, "the
Government’s broad authority . . . in managing its operations
does not turn on" whether "contract employees" or "civil ser-
vants" are involved. NASA v. Nelson, 131 S. Ct. 746, 758-59
(2011) (citation omitted).
Tort law, however, conflicts with rather than complements
these contractual mechanisms of control by "interfer[ing] with
the federal government’s authority to punish and deter mis-
conduct by its own contractors." See Saleh, 580 F.3d at 8. The
majority’s allocation of common law remedies is paradoxi-
cally not just a matter of common law. It is a decision con-
cerning which branch of government will control the
contractors that assist our soldiers on the battlefield. Whereas
contract and criminal law places contractor accountability
where Article II places it—in the hands of the executive—tort
law places it in the hands of the judiciary. But the executive
branch—and not the judicial—is responsible for overseeing a
war effort under the Constitution. Whereas the President is
required as Commander in Chief "to take responsible and con-
tinuing action to superintend the military," Loving v. United
States, 517 U.S. 748, 772 (1996), we as judges are "not given
the task of running the Army." Orloff v. Willoughby, 345 U.S.
83, 93 (1953).
It is disquieting to say the least that the majority now
believes it can displace, or to use a euphemism, "supplement"
executive control of military contractors with judicial over-
sight. The costs of that decision will be severe. For one thing,
it bleeds together two areas of law—tort and contract—that
are conceptually distinct. No one disputes that those contrac-
tors who actually engage in torture breach those provisions of
their contracts that require them to act in accordance with fed-
eral law. But a "[b]reach of contract is not a tort," XCO Int’l
Inc. v. Pac. Scientific Co., 369 F.3d 998, 1002 (7th Cir. 2004),
and it only muddies the law to permit private litigants to bring
70 AL SHIMARI v. CACI INTERNATIONAL
tort suits against contractors just because the latter allegedly
violated an agreement with the executive. "[T]he main cur-
rents of tort law run in different directions from those of con-
tract," E. River S.S. Corp. v. Transamerica Delaval, Inc., 476
U.S. 858, 873 n.8 (1986), and it does little good to attempt to
channel them together.
C.
At bottom, the majority’s facilitation of tort remedies chills
the willingness of both military contractors and the govern-
ment to contract. I have previously discussed the chilling
effect today’s decision will have on private contractors, see
supra Part I, but I fear that the majority’s efforts will discour-
age the government from partnering with private industry as
well. Congress might well think the defense budget large
enough without courts adding the prospect of uncertain tort
liabilities. By increasing through prospective tort suits the
costs of employing contractors on the battlefield, the majority
interferes with the executive branch’s capacity to carry out its
constitutional duties. To the Defense Department in an era of
cost consciousness, the threat of tort liability can chill both
the government’s ability and willingness to contract by raising
the price of partnering with private industry, and that is partic-
ularly true here. Boyle noted, in fact, that burdens of "tort
suits" against military contractors "would ultimately be
passed through . . . to the United States itself, since defense
contractors will predictably raise their prices to cover . . . con-
tingent liability." 487 U.S. at 511-12. So long as the executive
branch could control contractual performance through con-
tract law, it had little reason to eschew valuable partnerships
with private enterprise. But now that third parties can pull
contractors and their military supervisors into protracted legal
battles, we can expect a distortion of contractor and military
decisionmaking to account for that contingency. As the Saleh
court explained, "Allowance of such suits will surely hamper
military flexibility and cost-effectiveness, as contractors may
prove reluctant to expose their employees to litigation-prone
AL SHIMARI v. CACI INTERNATIONAL 71
combat situations." 580 F.3d at 8. It will no longer be enough
that military contractors meet their contractual commitments
to a T, for there exists no assurance that the standard of care
embraced in subsequent tort suits will incorporate by refer-
ence or otherwise the criterion of meeting one’s contractual
obligations.
"[T]he separation-of-powers doctrine requires that a branch
not impair another in the performance of its constitutional
duties." Loving, 517 U.S. at 757. Today’s decision does pre-
cisely that. "[T]he Government’s practical capacity to make
contracts" is "the essence of sovereignty itself." United States
v. Winstar, 518 U.S. 839, 884 (1996) (internal quotation mark
and citation omitted). By making the contract the essence of
the government-contractor partnership, we diminish the
capacity of our adversaries to erode this critical aspect of our
national sovereignty through litigation. Conversely, by elevat-
ing tort as a mechanism of weakening this essential partner-
ship, we give those who do not wish us well a means of
putting their ill will to use. I can understand that our enemies
would seek to use our own laws as a weapon against us, but
I cannot understand why we should sanction suits, the unin-
tended effect of which is to equip them.
III.
Rather than engage in a frank discussion of the conse-
quences that will ensue from its ruling, the majority seeks a
cubby hole in the collateral order doctrine. This argument
misses the mark—for many of the same reasons that tort law
does not belong on the battlefield, this case does not belong
back before the district court. We are engaged in a lot of
semantic word games here, losing completely the forest for
the trees. The collateral order doctrine is not a matter of legal-
istic banter, but of letting an appellate court confront in a
timely manner issues presenting grave, far-reaching conse-
quences. Before us is a deeply unfortunate instance of litiga-
tion creep where doctrines that postpone appeals in a
72 AL SHIMARI v. CACI INTERNATIONAL
domestic context are transposed to an international setting
without recognition of the gravity of such a shift of gears.
The collateral order doctrine is premised on the eminently
reasonable conclusion that immunities from suit should be
recognized sooner rather than later, because the "rigors of
trial" can often be every bit as damaging as an adverse judg-
ment. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.
863, 870 (1994). Indeed, the "crucial distinction between a
right not to be tried and a right whose remedy requires . . .
dismissal" is whether the immunity in question would be evis-
cerated by the very process of litigation. United States v. Hol-
lywood Motor Car Co., 458 U.S. 263, 269 (1982).
Here, the asserted immunity can take on different labels
—"law-of-war immunity," "Boyle preemption," or an inher-
ently political question—but the underlying premise is the
same: that suits for damages against private defendants arising
out of military contracts performed in a theatre of war are not
cognizable by the federal courts under state tort law. The
point of this immunity is not to determine after all the vicissi-
tudes of litigation who should win and who should lose.
Rather, it is a recognition that sensitive military matters
should be insulated at the outset from judicial scrutiny, and
the cases to this effect are legion.
The majority’s contrary holding is animated by a single
mistaken belief: that "the denial of a preemption claim stem-
ming from the combatant activities exception would not . . .
entail significant scrutiny of sensitive military issues." Ante at
27. The majority expresses this confidence despite its obser-
vation that "the questions that will require proper answers . . .
have yet to be fully ascertained." Id. at 34. At a minimum, it
seems clear that the majority’s pursuit of "the luxury of a
complete record developed through discovery," id. at 33,
"careful analysis of intrinsically fact-bound issues," id. at 34,
and "exploration of the appellants’ duties under their contracts
with the government," id. at 34, contemplates full-fledged liti-
AL SHIMARI v. CACI INTERNATIONAL 73
gation that will inevitably require the substantial scrutiny of
military affairs.
But this is not just another day at the ranch. This is an
extraordinary case presenting issues that touch on the most
sensitive aspects of military operations and intelligence. The
majority’s proposed inquiry, "focuse[d] on whether the con-
tractor complied with the government’s specifications and
instructions," id. at 27, must perforce entail bringing the mili-
tary personnel who gave those instructions before a court
halfway around the world. The Supreme Court has long cau-
tioned against "compelled depositions . . . by military officers
concerning the details of their military commands," which
will only "disrupt the military regime." Stanley, 483 U.S. at
682-83.
Domestically, this sort of "broad ranging discovery and the
deposing of numerous persons . . . can be peculiarly disrup-
tive of effective government." Harlow v. Fitzgerald, 457 U.S.
800, 817 (1982). It carries the risks of "distraction of officials
from their governmental duties, inhibition of discretionary
action, and deterrence of able people from public service." Id.
at 816. In the context of the battlefield, the consequences are
geometrically more dire, since the plaintiffs seek information
about the interrogation methods and intelligence gathering
techniques critical to our nation’s success in combat. "Even a
small chance that some court will order disclosure of a
source’s identity could well impair intelligence gathering
. . . ." CIA v. Sims, 471 U.S. 159, 175 (1985). I wonder how
the majority expects an "inquiry focuse[d] on whether the
contractor complied with the government’s specifications and
instructions," ante at 27, to be resolved without hauling before
the district court the military officers who gave those instruc-
tions, exposing our national security apparatus in direct con-
travention of the Supreme Court’s clear instructions to the
contrary.
Because military contractors work at such close quarters
with the military, judicial "inquiry into the civilian activities
74 AL SHIMARI v. CACI INTERNATIONAL
[will] have the same effect on military discipline as a direct
inquiry into military judgments." Johnson, 481 U.S. at 691
n.11. This is hardly a fanciful concern. Al-Quraishi, for
instance, will likely seek discovery to validate the allegation
in his complaint that "L-3 employees[ ] and CACI employees
conspired with certain military personnel to torture prisoners."
And the defendants are no better. CACI acknowledged at oral
argument that, in order to produce sensitive military docu-
ments that would vindicate itself, it would push the discovery
process against the military "as broadly as [it] possibly
could."
This quite plainly is the stuff of immunity, not just some
affirmative defense. Despite the Supreme Court’s explicit
admonition to the contrary, both parties frankly seek to "re-
quire members of the Armed Services" and their contractors
"to testify in court as to each other’s decisions and actions" in
an attempt to sort out "the degree of fault," thereby undermin-
ing the private-public cooperation and discipline necessary for
the execution of military operations. See Stencel Aero Eng’g
Corp. v. United States, 431 U.S. 666, 673 (1977). Both parties
to this suit propose to go rummaging through the most sensi-
tive military files and documents, seeking to prove or dis-
prove a broad-reaching conspiracy to conduct the alleged
illegal interrogations. I have no doubt that these proceedings
will quickly "devolve into an exercise in finger-pointing
between the defendant contractor and the military, requiring
extensive judicial probing of the government’s wartime poli-
cies." Saleh, 580 F.3d at 8.
By pitting uniformed soldiers and military contractors
against one another, we will only "hamper the war effort and
bring aid and comfort to the enemy," which will relish the
opportunity to drag American soldiers into our "own civil
courts" and thereby divert their "efforts and attention from the
military offensive abroad to the legal defensive at home."
Johnson v. Eisentrager, 339 U.S. 763, 779 (1950). "[T]hese
cases are really indirect challenges to the actions of the U.S.
AL SHIMARI v. CACI INTERNATIONAL 75
military," Saleh, 580 F.3d at 7, and it "would be difficult to
devise more effective fettering of a field commander than to
allow" the suits the majority encourages today. See Eisen-
trager, 339 U.S. at 779.
Rather than allow this court to address the merits of the
immunity question and decide once and for all whether the
demands of national security preclude this suit, the majority
prefers sending this litigation back to a lone district judge
with no more guidance than to say that he should keep his fin-
ger in the dike and avoid discovery that imperils national
security. The ringing klaxons that the Supreme Court has
sounded in this area do not permit this casual approach. By
the time this case gets back to this court for consideration of
the selfsame immunity questions that we could perfectly well
address right now, the litigation process may well have done
its damage.
These were precisely the sort of concerns that animated the
Supreme Court’s extension of the collateral order doctrine to
appeals pertaining to qualified immunity in Mitchell v. For-
syth, 472 U.S. 511, 524-30 (1985). That case makes clear that
the touchstone of the collateral order doctrine is whether
delayed review would impose "consequences . . . not limited
to liability for money damages." Id. at 526. Yet the majority
refuses to even acknowledge that this case presents the same
distinct dangers—and worse—that merited immediate appeal
in Forsyth, preferring instead to act as if this were a typical
personal injury case.
To justify this conclusion, the majority relies on semantics,
ignoring the Supreme Court’s instruction that the collateral
order doctrine is to be given a "practical rather than a techni-
cal construction." Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546 (1949).
First, the majority relies on a literal reading of the dictum
that collateral appeals are reserved for "explicit statutory or
76 AL SHIMARI v. CACI INTERNATIONAL
constitutional guarantee[s] that trial will not occur." Midland
Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989). The
majority cites this lonely line for the sweeping and staggering
conclusion that the interests protected by Boyle and Saleh are
"ipso facto, not immunity." Ante at 25. But the Supreme Court
has recognized that "explicit statutory or constitutional gua-
rantee[s]" do not describe the whole of the collateral order
doctrine. Mitchell v. Forsyth stands as an example of how
"explicitness may not be needed for jurisdiction" to hear a
collateral appeal. Digital Equip., 511 U.S. at 876. What dif-
ferentiates both qualified immunity and law-of-war immunity
from the mass of claims that do not merit immediate review
is their "good pedigree in public law." Id. In other words,
these immunities are distinct because although the interests
they protect are not specifically enshrined in legislative text,
they are nonetheless vital to the protection of the common
good, and serve more than the mere interest of a single indi-
vidual in a favorable judgment.
Second, the majority examines Boyle with a microscopic
eye, honing in on the fact that the case uses the word "liabil-
ity" rather than "immunity." See ante at 25. First, this obser-
vation is not even correct—both the majority and the dissent
in Boyle also describe the result as "immunity." See, e.g.,
Boyle, 487 U.S. at 510 ("contractor immunity"); id. at 523
(Brennan, J., dissenting) ("contractor immunity"). Second,
and more important, however, the Supreme Court has
instructed that the courts of appeals should not "play word
games with the concept of a ‘right not to be tried.’" Midland
Asphalt, 489 U.S. at 801. The majority recognizes this princi-
ple when convenient, see ante at 20 (quoting Midland
Asphalt, 489 U.S. at 801), but chooses to ignore it when pars-
ing Boyle with exegetic precision, see ante at 25-26. All that
is relevant to the inquiry before us is that the rationale for
Boyle was the same desire to avoid the "inhibition of discre-
tionary action" that made immediate appeals necessary in
Mitchell v. Forsyth. Compare Boyle, 487 U.S. at 511-13, with
Forsyth, 472 U.S. at 525-26.
AL SHIMARI v. CACI INTERNATIONAL 77
Given the fact that these cases simply bristle with novel,
unprecedented questions, their duration is likely to be mea-
sured in years. It will in all likelihood be a long time indeed
before they ever again reach the court of appeals, especially
in view of the fact that the vote here will operate as a disin-
centive for any future certified appeals under 28 U.S.C.
§ 1292(b). District courts have been given a signal from this
court that we do not want to be bothered by these appeals no
matter how significant the issues might be. Today’s opinion
gives the district courts a green light to plunge without a scin-
tilla of direction into the intractable difficulties and significant
pitfalls of this litigation. The danger is precisely that which
the collateral order doctrine is meant to forestall, namely the
expenditure of years of litigation involving a succession of
national security concerns in cases that plainly should be dis-
missed at the very outset. See Will, 546 U.S. at 353; Gough
v. Perkowski, 694 F.2d 1140, 1145 (9th Cir. 1982). If the col-
lateral order doctrine has no role in saving resources and spar-
ing wasted efforts in a context such as this, then I fear it has
been largely eviscerated in those situations where it would be
of most use.
I recognize that people on both sides of these questions
have the noblest intentions in mind, but we should not be
oblivious to the profound changes that are occurring. It was
once the case that judges of all persuasions went to great
lengths to restrain themselves from entering theatres of armed
conflict with prescriptions of their own, and this was true
whether the conflict was regional or worldwide in its dimen-
sions. See, e.g., Holtzman v. Schlesinger, 414 U.S. 1304,
1309-10, 1315 (1973) (Marshall, Circuit Justice) (refusing to
review air operations over Cambodia because, in part, "Jus-
tices of this Court have little or no information or expertise"
with regard to sensitive military decisions and "are on treach-
erous ground indeed when [they] attempt judgments as to
[the] wisdom or necessity" of executive military action);
Eisentrager, 339 U.S. 763 (World War II); Ex parte Quirin,
317 U.S. 1 (1942) (World War II); The Prize Cases, 67 U.S.
78 AL SHIMARI v. CACI INTERNATIONAL
(2 Black) 635 (1863) (The Civil War). But that era is ending.
Perhaps it shall end, but how it ends is all important and I hate
to see it pass not through law but through judicial ukase. As
a matter of policy, one may prefer these suits go forward, but
as a matter of law, they should be forthwith dismissed.
Under the majority’s view of pertinent precedent, an officer
denied qualified immunity for a wrongful arrest would be
entitled to an immediate appeal of that decision, but the
weighty questions of war and wartime policy at issue here
must take their turn at the back of the line. What stands to be
"irretrievably lost in the absence of an immediate appeal,"
Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 431 (1985),
is whether decisions as to how America protects herself can
be scrutinized through novel applications of extraterritorial
causes of action unauthorized by any body charged by our
charter with protection of this country’s most vital security
concerns. In allowing these suits to proceed, the majority has
asserted for itself the responsibility of all others in our system:
the right of Congress to authorize private tort actions chal-
lenging combatant activity overseas; the right of the executive
to control wartime operations through its contractual and
criminal law prerogatives; the right of the states not to assent
to the extraterritorial application of their law; and the right
(though not of constitutional dimension) of litigants and dis-
trict courts to some notion of where this brave new world will
lead. Perhaps this litigation is simply one of those small and
tiny steps that weaken America only by increments and erode
our constitutional structure only by degree. But I think this
understates the matter. The touchstone of the collateral order
doctrine is whether a trial "would imperil a substantial public
interest" or "some particular value of a high order." Will, 546
U.S. at 352. To some questions the answers should be so
apparent as not to require iteration, and so it is here.
Judge Niemeyer and Judge Shedd have indicated that they
join this opinion.
AL SHIMARI v. CACI INTERNATIONAL 79
NIEMEYER, Circuit Judge, dissenting:
The majority today disregards controlling Supreme Court
precedents and belittles the gravity of the issues presented in
these cases, purporting to find comfort in its narrow applica-
tion of the collateral order doctrine. Its effort is regrettably
threadbare.
Military contractors performing work in the Iraqi war zone
under the command and control of the United States military
have invoked our jurisdiction, claiming immunity from tort
suits brought by foreign nationals detained as part of the war
effort. As a matter of convenience, the majority ducks making
a decision on this issue of greatest importance to the public
interest because it feels that discovery and further district
court proceedings would assist it in making a decision. But in
giving that as a reason, the majority fails to follow the
Supreme Court’s command in Behrens v. Pelletier, 516 U.S.
299 (1996), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), that
we hear such claims of immunity now, simply on the basis of
the complaint.
It is simply too easy to claim, as does the majority, that
unresolved facts bar consideration now of the defendants’
immunity claims. There are always unresolved facts. Without
any explanation, the majority fails to recognize that the undis-
puted facts of the plaintiffs’ claims alone allow a court to rule
on the defendants’ immunity claims as a matter of law.
It would appear that only the Supreme Court can now fix
our wayward course.
***
The plaintiffs in these cases are Iraqi citizens, who were
seized in Iraq and detained by the U.S. military in Abu Ghraib
prison and other military prisons in Iraq. They commenced
these actions under state tort law and the Alien Tort Statute
80 AL SHIMARI v. CACI INTERNATIONAL
("ATS"), 28 U.S.C. § 1350, for alleged injuries sustained
from their mistreatment in prison at the hands of the defen-
dants, who were U.S. military contractors, and of the military
personnel themselves. As contractors hired by the U.S. mili-
tary and under its control during the course of the war effort,
the defendants in these two cases have asserted various immu-
nities from liability and suit. They claim that the plaintiffs’
claims are barred by (1) derivative sovereign immunity or
derivative absolute immunity, as set forth in Mangold v. Ana-
lytic Services, Inc., 77 F.3d 1442 (4th Cir. 1996); (2) immu-
nity from tort liability in a war zone, as recognized under
Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), cert.
denied, 131 S. Ct. 3055 (2011); and (3) law-of-war immunity,
as recognized by the Supreme Court in Dow v. Johnson, 100
U.S. 158 (1880). On the district courts’ rejection of these
claims of immunity or their refusal to grant immunity on
motions filed under Rules 12(b)(1) and 12(b)(6), the defen-
dants filed these interlocutory appeals.
The majority refuses to address whether the defendants
enjoy any of the immunities asserted, holding that the district
courts’ decisions made on Rule 12(b)(1) and Rule 12(b)(6)
motions are not final appealable orders and that we do not
have appellate jurisdiction. With that decision, the majority
subjects the defendants to litigation procedures, to discovery,
and perhaps even to trial, contrary to the deep-rooted policies
inherent in these immunities.
I would reject each of the reasons given by the majority for
not deciding the immunity issues at this stage of the case and
conclude that we undoubtedly have appellate jurisdiction now
to consider them under the well-established principles of
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541
(1945), Behrens v. Pelletier, 516 U.S. 299 (1996), and their
progeny. Cohen authorizes the immediate appeal under 28
U.S.C. § 1291 of important and collateral interlocutory orders
that "have a final and irreparable effect on the rights of the
parties." 337 U.S. at 545. And Behrens and Iqbal clearly
AL SHIMARI v. CACI INTERNATIONAL 81
establish that these appeals fit comfortably with the Cohen
collateral order doctrine because the denial of immunity "at
the motion-to-dismiss stage of a proceeding is a ‘final deci-
sion’ within the meaning of § 1291." Iqbal, 556 U.S. at 672
(citing Behrens, 516 U.S. at 307).
Each of the majority’s reasons for denying review now is
demonstrably flawed. In rejecting the right to appeal the dis-
trict courts’ denials of the derivative absolute immunity
described in Mangold, the majority ignores well-established
precedent that a district court’s denial of an immunity from
suit based on the facts as alleged in the complaint is a final,
conclusive order that is immediately appealable as a collateral
order. And in rejecting the right to appeal rulings on Saleh
and law-of-war immunities, the majority rests heavily on a
distinction between an immunity that provides "an insulation
from liability" and "an immunity from suit," concluding that
the immunities in this case only protect defendants from civil
liability. This analysis misses the point, however. The
Supreme Court has found orders denying immunity in its
common law sense to be appealable by examining the func-
tion performed by parties claiming immunity, the interference
with that function a denial of immunity would occasion, and
the public interest. In reaching its conclusion, the majority
fails to undertake this analysis or recognize the substantial
government interest underlying these immunities, an interest
with deep roots in the common law.
If there ever were important, collateral decisions that would
qualify under Cohen as reviewable final decisions, the district
courts’ denials of immunity in these cases are such decisions.
The defendants in these cases were engaged by the U.S. mili-
tary to assist in conducting interrogations under the command
and control of U.S. military personnel, and the decisions
about the scope and nature of these interrogations were an
integral part of the military’s interests. Moreover, the military
desperately needed to receive contractor assistance in its inter-
rogations because of a substantial shortage of personnel.
82 AL SHIMARI v. CACI INTERNATIONAL
Thus, the interrogations were a major component of the war
effort, designed to gather military intelligence. These strong
public interests merit our consideration of the federal common
law immunities claimed by the defendants as protection from
any civil suit and from any potential civil liability under state
tort law.
Because we have appellate jurisdiction to address one or all
of the forms of immunity claimed by the defendants, we
would, at the outset, be required to decide our subject matter
jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 94 (1998). When considering our jurisdiction, it is
apparent that we, as well as the district courts, lack authority
under Article III to entertain the actions because they present
a nonjusticiable political question.
Accordingly, I would dismiss these appeals and remand
them with orders to dismiss the cases as nonjusticiable
attempts to engage the judiciary in questions reserved by the
Constitution for Congress and the Commander-in-Chief to
resolve.
I
In 2003, a multi-national force, led by the United States and
Great Britain, invaded Iraq. During the course of the war, the
U.S. military seized and detained Iraqi citizens suspected of
being enemy combatants or thought to have value in possess-
ing useful intelligence regarding the insurgency or other ter-
rorist activities. These detainees were imprisoned in Abu
Ghraib prison and other prisons throughout Iraq. Although
these prisons were operated by the U.S. Army in an active
war zone, "a severe shortage" of military intelligence person-
nel "prompt[ed] the U.S. government to contract with private
corporations to provide civilian interrogators and interpret-
ers." J.A. 408. These contractors included CACI Premier
Technology, Inc., a subsidiary of CACI International, Inc.
(collectively herein, "CACI") and Titan Corporation, now L-
AL SHIMARI v. CACI INTERNATIONAL 83
3 Services, Inc. ("L-3"). CACI and L-3 were required to com-
ply with Department of Defense interrogation policies and
procedures when conducting "[i]ntelligence interrogations,
detainee debriefings, and tactical questioning" of persons in
the custody of the U.S. military. J.A. 270-71. Secretary of
Defense Donald Rumsfeld testified before Congress that the
linguists and interrogators provided by contractors at Abu
Ghraib were "responsible to [the military intelligence] person-
nel who hire[d] them and ha[d] responsibility for supervising
them." Hearing of the U.S. Senate Committee on Armed Ser-
vices 44 (May 7, 2004). Acting Secretary of the Army Les
Brownlee also testified that civilian linguists and interrogators
"work[ed] under the supervision of officers or noncommis-
sioned officers in charge of whatever team or unit they are
on." Id.
The plaintiffs in these two actions are individuals who were
seized and detained by the military at Abu Ghraib prison and
other military-controlled prisons "during a period of armed
conflict" and "in connection with hostilities." Second
Amended Compl. ("Complaint") ¶ 497 (Al-Quraishi); Second
Amended Compl. ("Complaint") ¶ 142 (Al Shimari). In their
complaints, they allege various acts of assault, sexual assault,
humiliation, and inhumane treatment at the hands of the
defendants, their employees, and their co-conspirators in the
military. They allege that during the course of providing inter-
rogation and translation services for the U.S. military,
employees of the defendant corporations conspired with each
other and with members of the military to commit torture,
assault, battery, and war crimes and that their conduct vio-
lated the terms of the contracts that CACI and L-3 had with
the U.S. military, the provisions of the U.S. Army field man-
ual, as well as United States law, state law, and the Geneva
Convention. Complaint ¶¶ 418, 430, 450, 454, 463, 470 (Al-
Quraishi); Complaint ¶¶ 67, 88, 94, 98, 107, 108 (Al Shi-
mari). In addition, they allege that the defendants conspired
with each other and with members of the U.S. military to
cover-up the misconduct and hide it from the authorities.
84 AL SHIMARI v. CACI INTERNATIONAL
The complaints purport to state causes of action under vari-
ous state-defined torts and under the Alien Tort Statute, nam-
ing as defendants CACI, L-3, and Adel Nakhla, an individual
employee of L-3, and they demand compensatory damages
for physical, economic, and mental injuries; punitive damages
to punish defendants for engaging in human rights abuses and
to deter similar behavior in the future; and attorney’s fees.
Complaint ¶¶ 2, 468-559, 560 (Al-Quraishi); Complaint ¶¶ 2,
113-204, 205; see also Al Shimari v. CACI Premier Tech.,
Inc., 657 F. Supp. 2d 700 (E.D. Va. 2009); Al-Quraishi v.
Nakhla, 728 F. Supp. 2d 702 (D. Md. 2010).
The defendants filed motions to dismiss all of the claims
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6), alleging that the claims were (1) nonjusticiable
because they presented a political question, relying on Tiffany
v. United States, 931 F.2d 271 (4th Cir. 1991); (2) barred by
derivative sovereign or absolute official immunity, as set forth
in Mangold v. Analytic Services, Inc., 77 F.3d 1442 (4th Cir.
1996); (3) preempted and displaced by the federal common
law government contractor defense, as set forth in Saleh v.
Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), cert. denied, 131 S.
Ct. 3055 (2011); and (4) barred by the law-of-war immunity
recognized by the Supreme Court in Dow v. Johnson, 100
U.S. 158 (1880). With respect to the state law tort claims,
both district courts below rejected all of these defenses and
denied the motions to dismiss. And with respect to the ATS
claims, the Al Shimari court dismissed, concluding that it
lacked jurisdiction, 657 F. Supp. 2d at 725-728, while the Al-
Quraishi court denied the motion to dismiss, 728 F. Supp. 2d
at 741-60.
A panel of this court reversed the district courts’ orders in
two opinions released on the same day, concluding that the
district courts should have dismissed the claims on the basis
of the government contractor defense recognized in Saleh. Al-
Quraishi v. L-3 Servs., Inc., 657 F.3d 201 (4th Cir. 2011); Al
Shimari v. CACI Int’l, Inc., 658 F.3d 413 (4th Cir. 2011). On
AL SHIMARI v. CACI INTERNATIONAL 85
the plaintiffs’ motions, we granted a rehearing en banc and
consolidated the appeals. At our invitation, the United States
also participated as an amicus curiae, filing a brief and partici-
pating in oral argument on January 27, 2012. The majority
now dismisses the appeals for a lack of final appealable orders
under 28 U.S.C. § 1291 and thus allows the litigation to pro-
ceed in the district courts.
II
Section 1291 of Title 28, authorizing "appeals from all final
decisions of the district courts of the United States," codifies
the "final judgment rule," representing "Congress’ determina-
tion since the Judiciary Act of 1789 that as a general rule
‘appellate review should be postponed . . . until after final
judgment has been rendered by the trial court.’" Kerr v. U.S.
Dist. Ct. for the N. Dist. of Cal., 426 U.S. 394, 403 (1976)
(quoting Will v. United States, 389 U.S. 90, 96 (1967)). Thus,
the Supreme Court has emphasized "the general rule that a
party is entitled to a single appeal, to be deferred until final
judgment has been entered." Mohawk Indus. v. Carpenter,
130 S. Ct. 599, 605 (2009) (quoting Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 868 (1994)).
Falling within the category of appealable final decisions
under § 1291 are certain collateral orders that are "other than
final judgments" but "have a final and irreparable effect on
the rights of the parties." Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 545 (1949). Under this "practical con-
struction" given to the statutory language "final decisions,"
"[t]he authority of the Courts of Appeals to review all final
decisions of the district courts" is construed to confer appel-
late jurisdiction over "‘a narrow class of decisions that do not
terminate the litigation’ but are sufficiently important and col-
lateral to the merits that they should ‘nonetheless be treated
as final.’" Will v. Hallock, 546 U.S. 345, 347 (2006) (quoting
Digital Equip., 511 U.S. at 867) (internal citation omitted).
Thus, to be a final, appealable order, a collateral order must
86 AL SHIMARI v. CACI INTERNATIONAL
satisfy three requirements: (1) it must "conclusively determine
the disputed question"; (2) it must "resolve an important issue
completely separate from the merits of the action"; and (3) it
must be "effectively unreviewable on appeal from a final
judgment." Johnson v. Jones, 515 U.S. 304, 310 (1995) (inter-
nal quotation marks omitted).
The Supreme Court has noted that the "collateral order doc-
trine" is of "modest scope," Hallock, 546 U.S. at 350, and
should not be applied "to swallow the general rule that a party
is entitled to a single appeal," Mohawk Indus., 130 S. Ct. at
605 (quoting Digital Equip., 511 U.S. at 868). But, equally
important, the Court has noted that the doctrine is necessary
and appropriate for cases involving a "particular value of high
order" including "honoring the separation of powers, preserv-
ing the efficiency of government and the initiative of its offi-
cials, [or] respecting a State’s dignitary interests." Hallock,
546 U.S. at 352-53. In this vein, the Supreme Court and our
court have applied the collateral order doctrine to review
interlocutory orders denying defendants’ motions to dismiss
on the basis of numerous asserted immunities. See, e.g.,
Abney v. United States, 431 U.S. 651 (1977) (double jeopardy
claim); Helstoski v. Meanor, 442 U.S. 500 (1979) (Speech
and Debate Clause immunity); Nixon v. Fitzgerald, 457 U.S.
731 (1982) (absolute official immunity); Mitchell v. Forsyth,
472 U.S. 511 (1985) (qualified immunity); Puerto Rico Aque-
duct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139
(1993) (Eleventh Amendment immunity); Osborn v. Haley,
549 U.S. 225 (2007) (Westfall Act immunity certification);
Republic of Iraq v. Beaty, 556 U.S. 848 (2009) (foreign sover-
eign immunity); Permanent Mission of India to the United
Nations v. City of New York, 551 U.S. 193 (2007) (same);
Roberson v. Mullins, 29 F.3d 132 (4th Cir. 1994) (absolute
legislative immunity); Mangold, 77 F.3d 1442 (derivative
immunity for a contractor).
Some or all of the defendants’ claims of immunity in these
cases are thus entitled to our review under the collateral order
doctrine, and I address them seriatim.
AL SHIMARI v. CACI INTERNATIONAL 87
A. Derivative Absolute Immunity
Immunity generally protects government officials from lia-
bility based on their office, their function, and the public
interest. And when litigation is commenced to enforce liabil-
ity against them, the officials are, if the public interest is suffi-
ciently strong, also protected from defending the suit itself,
even when the official is accused of misconduct. See Nixon,
457 U.S. at 752 (noting that immunity is afforded when it is
in the public interest to provide an official "the maximum
ability to deal fearlessly and impartially with duties of his
office" (internal quotation marks omitted). Of course, each
particular immunity is defined by the official claiming it, by
his function, and by the particular public interest sought to be
protected.
In this case, the defendants claim, among other immunities,
derivative absolute immunity based on their role in carrying
out the U.S. military’s mission in the Iraq war zone under the
ultimate direction and control of the military. As alleged in
the complaints, the defendants were retained by the U.S. mili-
tary to perform interrogation and translation services in the
interrogation of military detainees in military prisons through-
out the Iraqi war zone. Complaint ¶¶ 8, 435, 436, 442 (Al-
Quraishi); Complaint ¶¶ 1, 10, 64 (Al Shimari). Indeed, the
complaints assert that the defendants were functioning on
behalf of the U.S. military and in conspiracy with military
personnel "during a period of armed conflict, in connection
with hostilities." Complaint ¶ 497 (Al-Quraishi); Complaint ¶
142 (Al Shimari).
Regardless of whether these facts are ultimately proved,
they were alleged by the plaintiffs in their complaints and
admitted by the defendants in asserting immunity. And on the
basis of these facts, both district courts below conclusively
determined that the defendants were not entitled to the deriva-
tive immunity recognized in Mangold. In one decision, the
district court stated that it "reject[ed] both arguments" made
88 AL SHIMARI v. CACI INTERNATIONAL
by the defendant that it was immune under the "doctrine of
derivative absolute official immunity" because it could not
"determine the scope of Defendants’ government contract, the
amount of discretion it afforded Defendants in dealing with
detainees, or the costs and benefits of recognizing immunity
in this case without examining a complete record after discov-
ery has taken place." Al Shimari v. CACI Premier Tech., Inc.,
657 F. Supp. 2d 700, 714 (E.D. Va. 2009) (emphasis added).
In the other decision below, the district court concluded
that "relying on the information in the Complaint, it is clearly
too early to dismiss Defendants on the basis of derivative sov-
ereign immunity," explaining that "the contract between [the
contractor] and the military is not before the Court at this
time," making it impossible to "determin[e] both the scope of
the contract and whether that scope was exceeded." Al-
Quraishi v. Nakhla, 728 F. Supp. 2d 702, 735 (D. Md. 2010).
Thus, both of these opinions take the facts as alleged by the
plaintiffs in their complaints as true and conclude that the
defendants were not entitled to derivative immunity.
As both the Supreme Court’s precedents and our precedents
clearly establish, when a district court refuses to grant an
immunity from suit on the basis of the facts alleged in a com-
plaint, the refusals are immediately appealable. Whether they
are rightly or wrongly decided, we have jurisdiction to review
such rulings to protect the defendants from the costs and dis-
traction of litigation, which undermine the public interest in
protecting the governmental function of war zone interroga-
tions. The district courts’ refusals to recognize this immunity
can undoubtedly be immediately appealed under the collateral
order doctrine. See Ashcroft v. Iqbal, 556 U.S. 662 (2009);
Behrens v. Pelletier, 516 U.S. 299, 303 (1996); Jenkins v.
Medford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc);
McVey v. Stacy, 157 F.3d 271, 275 (4th Cir. 1998).
The majority does not take issue with the defendants’ claim
of immunity under the doctrine of derivative absolute immu-
AL SHIMARI v. CACI INTERNATIONAL 89
nity, nor does it take issue with the principle that this immu-
nity protects defendants from suit. Ante, at 35 ("Mangold
immunity confers upon those within its aegis the right not to
stand trial"). Rather, the majority defers any ruling on the
immunity because the "record [was not] sufficiently devel-
oped through discovery proceedings to accurately assess any
claim, including one of immunity." As the majority explains:
The Maryland and Virginia district courts each per-
ceived that the validity of such invocations [of
immunity] depended in significant part on whether
the contractor involved was acting within the scope
of its agreement with the United States. One could
hardly begin to answer that question without resort
to any and all contracts between the appellants and
the government pertinent to the claims, defenses, and
related matters below.
Ante, at 29-30. Thus, the majority concludes that because the
district courts deferred ruling on derivative immunity until the
record was more developed, their decisions lack finality and
fail the requirements of Hallock, 546 U.S. at 349-50, that col-
lateral orders be conclusively determined.
The majority fails to recognize, however, that its conclu-
sions are contrary to well-established Supreme Court and
Fourth Circuit precedents and that the district courts’ deci-
sions in refusing to grant immunity on motions to dismiss
based on Rules 12(b)(1) and 12(b)(6) are appealable final
determinations under the collateral order doctrine.
In Behrens, 516 U.S. at 303, the district court had entered
an order denying, without prejudice, a motion to dismiss
based on a defense of qualified immunity, giving as its reason
the fact that it was premature because of the lack of discovery.
Both the Ninth Circuit in the first appeal taken and, eventually
the Supreme Court, recognized that the district court’s order
deferring consideration pending discovery was a final deter-
90 AL SHIMARI v. CACI INTERNATIONAL
mination of the immunity defense, subject to immediate
appeal under the collateral order doctrine. See Pelletier v.
Fed. Home Loan Bank of San Francisco, 968 F.2d 865, 871
(9th Cir. 1992); Behrens, 516 U.S. at 308 ("Whether or not a
later summary judgment motion [on the basis of immunity] is
granted, denial of a motion to dismiss is conclusive as to this
right" (emphasis added)). As the Behrens Court noted, at the
motion-to-dismiss stage of a proceeding, "it is the defendant’s
conduct as alleged in the complaint that is scrutinized."
Behrens, 516 U.S. at 309 (emphasis added); see also Mitchell
v. Forsyth, 472 U.S. 511, 529 n.9 (1985) ("[W]e emphasize
at this point that the appealable issue is a purely legal one:
whether the facts alleged . . . support a claim of violation of
clearly established law" (emphasis added)).
More recently, in Iqbal, the Supreme Court reaffirmed
Behrens and its principle that "a district court’s order rejecting
qualified immunity at the motion-to-dismiss stage of a pro-
ceeding is a ‘final decision’ within the meaning of § 1291."
Iqbal, 556 U.S. at 672 (emphasis added).
Until this decision by the majority, we have applied the rea-
soning of Mitchell and Behrens faithfully and consistently,
holding that the denial of a motion to dismiss based on an
immunity that is properly characterized as an immunity from
suit, even if on the basis that more discovery is necessary, is
a collateral order over which we have jurisdiction under 28
U.S.C. § 1291. In Jenkins v. Medford, 119 F.3d 1156, 1159
(4th Cir. 1997) (en banc), we declared that we had jurisdiction
to review a district court’s denial of a motion to dismiss based
on qualified immunity even though the district court had
refused to rule on immunity at that stage because an answer
had not yet been filed. Without qualification, we stated that
"[w]hen a district court denies a motion to dismiss that is
based on qualified immunity . . . the action is a final order
reviewable by this court." Id.; see also Winfield v. Bass, 106
F.3d 525, 530 (4th Cir. 1997) (en banc) (finding jurisdiction
to review an immunity claim "accepting the facts as the dis-
AL SHIMARI v. CACI INTERNATIONAL 91
trict court viewed them," even though factual issues
remained).
Again, in McVey, 157 F.3d at 275, we applied Behrens and
concluded that we had jurisdiction over the denial of qualified
immunity even though we "recognized that the district court’s
order essentially deferring a ruling on qualified immunity
would appear, at first blush, to amount to a routine procedural
order that is generally not appealable." As we reasoned:
[I]n rejecting the immunity defense "at this early
stage," the district court necessarily subjected the
commissioners to the burden of further trial proce-
dures and discovery, perhaps unnecessarily. [The
district court’s] order implicitly ruled against the
commissioners on . . . legal questions . . . . These
questions do not raise factual questions concerning
the defendants’ involvement, which would not be
appealable . . . . On the contrary, they are answered
with the facts of the complaint assumed to be true as
a matter of law. They are therefore the very ques-
tions that Mitchell held were appealable.
Id. at 276 (emphasis added) (internal citations omitted).
Although the majority acknowledges these precedents, it
attempts to distinguish them by noting that Behrens "confers
jurisdiction of these appeals only if the record at the dismissal
stage can be construed to present a pure issue of law." Ante,
at 32. It finds that in these cases "those facts that may have
been tentatively designated as outcome-determinative are yet
subject to genuine dispute, that is, a reasonable factfinder
could conclude in favor of either the plaintiffs or the defen-
dants," and thus we lack jurisdiction because the "courts’
immunity rulings below turn[ed] on genuineness." Ante, at
34-35. The majority’s new "genuineness" addition to the col-
lateral order doctrine, however, finds no support in the
Supreme Court’s discussion of collateral order immunity
92 AL SHIMARI v. CACI INTERNATIONAL
appeals. To the extent the majority is simply stating the well-
established rule that a collateral order immunity appeal must
present a purely legal question, there can be no debate that the
appeals in the cases before us present just such a question.
Mitchell, Behrens, and Iqbal establish without question that
these appeals present a purely legal question because we are
asked to decide whether the defendants are entitled to deriva-
tive immunity on the basis of the facts as alleged by the plain-
tiffs in their complaints. The possibility that a factfinder might
construe these facts in favor of the defendants at a later time
does not, by some heretofore unknown legal device, create a
factual dispute that deprives us of jurisdiction at the motion-
to-dismiss stage. As a matter of logical necessity, there can be
no genuine issue of material fact when we are reviewing only
the facts as alleged by the plaintiff in the complaint. The
majority simply ignores Mitchell’s statement that "the appeal-
able issue is a purely legal one: whether the facts alleged"
support a claim of immunity. 472 U.S. at 528 n.9.
The majority’s claim that it could only discern a "pure issue
of law" if it "were of the opinion, as the dissenters evidently
are, that persons similarly situated to the appellants are inevi-
tably and invariably immune from suit," ante, at 32-33, dem-
onstrates the fundamental error of its approach. If the majority
believes that the defendants cannot establish their claims to
immunity from suit, accepting as true the facts in the com-
plaint, then it should deny the derivative immunity defense on
the merits and allow the district courts to proceed and develop
a fuller factual record. Indeed, Behrens considers this very
possibility, allowing the defendants to pursue a second immu-
nity appeal after the denial of summary judgment even if they
have already unsuccessfully appealed the district court’s
denial of their motion to dismiss. 516 U.S. at 305-08. Surpris-
ingly, the majority admits that we have jurisdiction to review
whether "facts that are undisputed or viewed in a particular
light are material to the immunity calculus," ante, at 32, but
then mysteriously concludes that we cannot determine
whether these same facts establish immunity. Thus, under the
AL SHIMARI v. CACI INTERNATIONAL 93
majority’s novel approach to the collateral order doctrine, we
have jurisdiction to review whether undisputed facts are "ma-
terial" to a question of immunity, but we have no jurisdiction
to review the immunity determination itself. Such a rule finds
absolutely no legal support.
Whether it is to avoid the difficulty presented by the politi-
cal question doctrine or to evade the other difficult questions
the merits of these important cases present, the majority
chooses to decimate existing collateral order jurisprudence by
finding a "genuine" dispute of material fact in a case in which
we are asked to review district court decisions denying deriv-
ative immunity based only on undisputed facts, those alleged
in the complaint. See McVey, 157 F.3d at 276 ("These ques-
tions do not raise factual questions concerning the defendants’
involvement . . . . On the contrary, they are answered with the
facts of the complaint assumed to be true as a matter of law.
They are therefore the very questions that Mitchell held were
appealable"). The majority’s approach is manifestly contrary
to the Supreme Court’s collateral order immunity jurispru-
dence.
Rather than following these binding precedents of the
Supreme Court and our court, the majority chooses to rely on
a distinguishable Fifth Circuit decision that refused to con-
sider a claim of immunity because it was neither "substantial"
nor "colorable." See Martin v. Halliburton, 618 F.3d 476, 484
(5th Cir. 2010). The Martin court, however, did not decide the
issue before us today. In that case, regulations governing the
contractor explicitly stated that "[c]ontractors will not be used
to perform inherently governmental functions" and "expressly
preclude[d] Defendant [contractors] from engaging in discre-
tionary conduct," which was a prerequisite for finding deriva-
tive immunity. See id. at 484. Thus, the language of the
regulations themselves made the defendants’ contentions that
they had engaged in the performance of governmental func-
tions frivolous and unsubstantial.
94 AL SHIMARI v. CACI INTERNATIONAL
Under our decision in Mangold and its progeny, there can
be no serious argument that, based on the complaint, the
defendants in these cases failed to present a substantial basis
for the immunity. See Mangold, 77 F.3d at 1442 (holding that
government functions performed by private contractors are
protected by immunity both for the government and the con-
tractor); see also Murray v. Northrop Grumman Info. Tech.,
Inc., 444 F.3d 169, 175 (2d Cir. 2006) (government contractor
absolutely immune from tort liability for performing
contracted-for governmental function, citing Mangold); Pani
v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71-73 (2d Cir.
1998) (same); Midland Psychiatric Assocs., Inc. v. United
States, 145 F.3d 1000, 1005 (8th Cir. 1998) (common law
official immunity barred tort suit against Medicare insurer).
This immunity protects contractors from suit where such an
immunity is necessary to protect a discretionary government
function and the benefits of immunity outweigh its costs. For
example, in Mangold, we held that "the interest in efficient
government" justified granting a private contractor immunity
for statements made during an official investigation of gov-
ernment procurement practices. 77 F.3d at 1447-48.
And recently, the Supreme Court has reaffirmed the need
to protect those who perform government functions with
immunity regardless of whether they are public employees,
such as military officers, or private individuals retained to
perform the same function. See Filarsky v. Delia, 132 S. Ct.
1662, 1663 (2012) ("[T]he common law did not draw a dis-
tinction between public servants and private individuals
engaged in public service in according protection to those car-
rying out government responsibilities").
But the majority never disputes this, nor even discusses
why the allegations in the complaint present only a frivolous
and unsubstantial claim to derivative immunity. Instead, it
frames the dispositive question as one of finality. In so doing,
the majority ignores the fundamental and well-established
principle that a district court’s denial of a motion to dismiss
AL SHIMARI v. CACI INTERNATIONAL 95
based on an immunity from suit is a final, immediately
appealable collateral order. Whether discovery could help
make the issue more clear or whether the district courts
wanted a fuller record before ruling on the merits of immunity
is irrelevant. The defendants claim entitlement to be protected
from the litigation process, and the court’s refusal to grant the
immunity denied them that protection and was therefore an
appealable decision under Mitchell, Behrens, Iqbal, Jenkins,
Winfield, and McVey. It is most regrettable that the majority
so readily tramples on these precedents, which clearly provide
us with appellate jurisdiction at this stage of the proceedings
to consider the substantial claims of immunity asserted by the
defendants on the basis of the facts alleged in the complaint.1
1
The majority also inexplicably dismisses L-3’s arguments relating to
the Alien Tort Statute in a footnote, claiming that they deserve no different
analysis than do the state law claims. Ante, at 35-36 n.19. But in so con-
cluding, the majority fails to recognize that plaintiffs’ Alien Tort Statute
claims, of jurisdictional necessity, include allegations that the defendants’
allegedly abusive conduct was the conduct of the United States and there-
fore any claim of derivative immunity would have to be substantial as a
matter of law.
Although the district court in Al Shimari dismissed the plaintiffs’ claims
under the ATS, the district court in Al-Quraishi failed to dismiss the ATS
claims against L-3 and its employee. L-3 contends on appeal that the
denial of its motion to dismiss the ATS claims on account of derivative
immunity, among other defenses, was an error. L-3’s claim to derivative
absolute immunity in the ATS context is thus undeniably "substantial." In
Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985), plaintiffs
alleged that defendants had violated the law of nations by engaging in
"summary execution, murder, abduction, torture, rape, wounding, and the
destruction of private property and public facilities," as part of a conspir-
acy arising out of the U.S. government’s actions in Nicaragua. Id. at 205.
In a unanimous opinion authored by then-Judge Scalia and joined by then-
Judge Ginsburg, the D.C. Circuit found that "[i]t would make a mockery
of the doctrine of sovereign immunity" to permit the ATS claims to pro-
ceed based on "actions that are, concededly and as a jurisdictional neces-
sity, official actions of the United States." Id. at 207. Like the allegations
in Sanchez-Espinoza, plaintiffs must, to maintain their ATS claims, allege
that the actions of the defendants were actions of the United States as a
jurisdictional necessity. See Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir.
96 AL SHIMARI v. CACI INTERNATIONAL
B. Combatant Activities Immunity under Saleh
The defendants also asserted an immunity from suit based
on the combatant activities exception to the Federal Tort
Claims Act and the D.C. Circuit’s application of that immu-
nity in Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), cert.
denied, 131 S. Ct. 3055 (2011). This immunity, applied to
military contractors, is based on the United States’ sovereign
immunity for claims arising out of combatant activities of the
military during time of war. See 28 U.S.C. § 2680(j).
Again, in response to the allegations of the plaintiffs’ com-
plaints, the defendants claimed that their immunity is based
on the United States’ interests, as embodied in the combatant
activities exception and as applied in Saleh. Under this immu-
nity, when claims arise out of federal combatant activities, the
federal interests preempt the application of state tort law to its
contractors and then replace state tort law with federal com-
mon law, which recognizes an immunity for claims against
1995) ("[T]orture and summary execution . . . are proscribed by interna-
tional law only when committed by state officials or under color of law").
To establish jurisdiction for their ATS claims alleging "war crimes," the
plaintiffs must at the very least allege that the defendants in this case were
"parties" to the hostilities in Iraq, id., and may have to demonstrate state
action as well if the court considered war crimes to violate international
norms only to the extent they were committed by combatants or state
actors, see Sosa v. Alvarez-Machain, 542 U.S. 692, 731-38 (2004); Tel-
Oren v. Libyan Arab Republic, 726 F.2d 774, 791-95 (D.C. Cir. 1994)
(Edwards, J., concurring).
Thus, the defendants’ claims to derivative immunity as to the ATS
claims in Al-Quraishi are obviously substantial because plaintiffs must
allege as a jurisdictional necessity either state action or that the defendants
were "parties" to the armed conflict in Iraq. Both allegations add further
weight to the contention that the defendants were performing a state func-
tion and thus entitled to the same immunities afforded public officials per-
forming that function. See Filarsky, 132 S. Ct. at 1663. I therefore fail to
understand how these defenses can be dismissed as so insubstantial and
frivolous that we lack jurisdiction even to entertain them.
AL SHIMARI v. CACI INTERNATIONAL 97
contractors arising out of combatant activities. The United
States’ interest in its contractors’ performance in the course of
combatant activities grows out of the uniquely federal interest
in the unencumbered operation of military personnel and in
the "elimination of tort from the battlefield, both to preempt
state or foreign regulation of federal wartime conduct and to
free military commanders from the doubts and uncertainty
inherent in potential subjection to civil suit." Saleh, 580 F.3d
at 7 (emphasis added). "[T]he policies of the combatant activ-
ities exception are equally implicated whether the alleged tort-
feasor is a soldier or a contractor engaging in combatant
activities at the behest of the military and under the military’s
control." Id. The policy to protect these interests can only be
furthered and preserved if the defense protects against poten-
tial lawsuits brought under any civilian tort law, not simply
against ultimate liability.
The district courts denied the claimed immunities. The
court in Al-Quraishi refused to recognize the unique federal
interests embodied in the combatant activities exception. Al-
Quraishi, 728 F. Supp. 2d at 738-39. And the court in Al Shi-
mari simply rejected the defense as to these defendants in a
conclusory manner. Al Shimari, 657 F. Supp. 2d at 725. Both
courts thus held that the defendants were entitled to neither
the displacement of state tort law nor the application of fed-
eral common law immunizing them from suit.
The majority now refuses also to review these district court
orders, thus denying the defendants the combatant activities
immunity. It does so mainly by relying on an unexplored
labeling problem. It states conclusorily, "Boyle preemption
(and, thus, Saleh preemption) is, ipso facto, not immunity."
Ante, at 25. And again, repeating its labeling reliance, it
declares, "Saleh preemption falls squarely on the side of being
a defense to liability and not an immunity from suit." Ante, at
24. The only analysis the majority accords the issue is an
observation that immunity "derives from an explicit statutory
or constructive guarantee that trial will not occur" (internal
98 AL SHIMARI v. CACI INTERNATIONAL
quotation marks omitted), and that Boyle, "from which Saleh
preemption is derived, [did not rely] on any such explicit
guarantee." Ante, at 24. The majority’s opinion, however, nei-
ther considers what Saleh actually held in order to prove its
assertion, nor analyzes the text of the combatant activities
exception and the unique federal interests it embodies. More-
over, it assumes, without analysis, that Boyle and Saleh are
identical for purposes of its collateral order analysis.
Surely our jurisdiction to consider the district courts’ orders
cannot depend wholly on labels such as "preemption" and
"immunity." Nonetheless, if a vote on labels were critical, the
majority would have little support, as virtually every court
that has considered the government contractor defense set
forth in Boyle takes it as a two-step defense leading to immu-
nity. Under the first step, the court preempts state tort law,
and under the second, it recognizes the federal common law
providing immunity to such contractors. See In re Katrina
Canal Breaches, 620 F.3d 455, 457 (5th Cir. 2010) (charac-
terizing the defense recognized in Boyle as "government con-
tractor immunity"); In re World Trade Ctr. Disaster Site
Litig., 521 F.3d 169, 196 (2d Cir. 2008) ("In Boyle, the Court
refined the requirements for a type of derivative immunity for
government military contractors" (emphasis added)); United
States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 44 n.6 (1st Cir.
1999) ("[T]he [Boyle] Court used the terminology of ‘dis-
placement of state law’ and ‘preemption’ in determining
whether federal law should provide government contractors
with immunity from certain state-law product liability actions"
(emphasis added)); Winters v. Diamond Shamrock Chem. Co.,
149 F.3d 387, 400 (5th Cir. 1998) ("The Supreme Court set
out the test for immunity under the government contractor
defense in Boyle" (emphasis added)); Oliver v. Oshkosh Truck
Corp., 96 F.3d 992, 997 (7th Cir. 1996) ("The government
contractor defense is derived from the government’s immunity
from suit when the performance of a discretionary function is
at issue" (emphasis added)); Mangold, 77 F.3d at 1448
("Extending immunity to private contractors to protect an
AL SHIMARI v. CACI INTERNATIONAL 99
important government interest is not novel. See, e.g., Boyle[ ]"
(emphasis added)); Tate v. Boeing Helicopters, 55 F.3d 1150,
1153 (6th Cir. 1995) ("The Boyle Court held that, under cer-
tain circumstances, government contractors are immune from
state tort liability" (emphasis added)); Carley v. Wheeled
Coach, 991 F.2d 1117, 1120 (3d Cir. 1993) (noting that the
rationale that "underlies the modern government contractor
defense" is that "[a] private contractor . . . should, in some cir-
cumstances, share the sovereign immunity of the United
States" (emphasis added)); Harduvel v. Gen. Dynamics Corp.,
878 F.2d 1311, 1316 (11th Cir. 1989) ("In the military con-
text, this [government contractor] immunity serves the further
important purpose of shielding sensitive military decisions
from scrutiny by the judiciary, the branch of government least
competent to review them" (emphasis added)).
Rather than counting labeling votes, however, we must, in
determining our appellate jurisdiction over the defendants’
claim of Saleh immunity, inquire whether the assertion of
Saleh immunity falls within the category of collateral orders
that the Supreme Court has held appealable under the collat-
eral order doctrine.
We begin by looking to the methodology in Boyle, which
was employed by Saleh to identify the unique federal interests
in these cases. In Boyle, the Supreme Court referred to the
"displacement" of state law with federal common law, 487
U.S. at 505, 507, 512 (emphasis added), and specifically held
that "a few areas, involving ‘uniquely federal interests,’ are so
committed by the Constitution and laws of the United States
to federal control that state law is pre-empted and replaced,
where necessary, by federal law of a content prescribed
(absent explicit statutory directive) by the courts—so called
‘federal common law.’" Id. at 504 (emphasis added) (internal
citation omitted). Thus, it is the content of this federal com-
mon law that defines the rights and defenses of the govern-
ment contractor defendant, not the preemption leading to
application of the federal common law.
100 AL SHIMARI v. CACI INTERNATIONAL
In Boyle, the father of a deceased helicopter pilot sued the
helicopter’s manufacturer, a private government contractor,
under Virginia tort law, alleging that the helicopter’s escape
hatch had been defectively designed because it opened out
rather than in. Id. at 502-03. While the pilot survived the
impact of the helicopter’s crash off the coast of Virginia, he
was unable to escape because the water pressure prevented
the escape hatch from opening. The Court concluded that
"state law which holds Government contractors liable for
design defects in military equipment does in some circum-
stances present a ‘significant conflict’ with federal policy and
must be displaced." Id. at 512 (emphasis added).
The Boyle Court reached its conclusion through a two-step
process. First, it recognized that the subject matter of the suit
implicated "uniquely federal interests," because it involved
the "performance of federal procurement contracts," which
"border[ed] upon two areas that [the Court] ha[d] found to
involve such ‘uniquely federal interests’": (1) the rights and
obligations of the United States under its contracts, and (2)
the "civil liability of federal officials for actions taken in the
course of their duty." Id. at 504-06. In the second step, after
recognizing these interests, the Court asked whether a "signif-
icant conflict exist[ed] between an identifiable federal policy
or interest and the operation of state law," and whether "the
application of state law would frustrate specific objectives of
federal legislation." Id. at 507 (internal quotation marks and
citation omitted). The Court explained that "[t]he conflict with
federal policy need not be as sharp to justify preemption"
when a suit involves an area of "unique federal concern," but
nonetheless "conflict there must be." Id. at 507-08. The Court
then found this conflict in the discretionary function exception
to the Federal Tort Claims Act ("FTCA"), noting that it "dem-
onstrates the potential for, and suggests the outlines of, ‘sig-
nificant conflict’ between federal interests and state law in the
context of Government procurement." Id. at 511.
The Boyle case thus works the displacement of state law,
through preemption, with federal common law and then
AL SHIMARI v. CACI INTERNATIONAL 101
describes the content of the federal common law government
contractor defense, looking for that purpose to the discretion-
ary function exception in the FTCA.
This case, however, does not involve the government con-
tractor defense recognized in Boyle, but rather a defense based
on the combatant activities exception, a common law immu-
nity recognized in the FTCA. See 28 U.S.C. § 2680(j) (retain-
ing sovereign immunity for claims "arising out of the
combatant activities of the military or naval forces, or the
Coast Guard during time of war"); see also Filarsky, 132 S.
Ct. at 1665 ("[W]e ‘proceed[ ] on the assumption that
common-law principles of . . . immunity were incorporated
into our judicial system and that they should not be abrogated
absent clear legislative intent to do so’" (first alteration in
original) (quoting Pulliam v. Allen, 466 U.S. 522, 529
(1984))). The defendants in this case asked the district courts
to apply the methodology of Boyle, as the court did in Saleh,
in order to recognize the federal common law defense based
on the combatant activities exception, which is animated by
different interests than were at issue in Boyle. See Saleh, 580
F.3d at 6 ("The crucial point is that the [Boyle] court looked
to the FTCA exceptions to the waiver of sovereign immunity
in order to determine that the conflict was significant and to
measure the boundaries of the conflict" (emphasis added)).2
Saleh indeed did apply the Boyle methodology to circum-
stances identical to those before us. Thus the Saleh court con-
2
The majority’s assertion that we are "repackaging for the sake of con-
venience the preemption defense derived from Boyle as ‘combatant activi-
ties immunity,’" ante, at 26, ignores the fact that Boyle and Saleh, though
they both apply preemption, then proceed to apply different principles of
federal common law to the issue at hand. Thus, not only are we not apply-
ing the common law applied in Boyle, we are also not repackaging any-
thing from Boyle. Rather, we are analyzing the content of the federal
common law that the Boyle methodology instructs us to apply. Saleh ana-
lyzed the content of this law as well, and the majority simply ignores that
there is any such content in its singular focus on the "preemption" label.
102 AL SHIMARI v. CACI INTERNATIONAL
cluded that Congress intended the combatant activities
exception to "eliminat[e] . . . tort from the battlefield, both to
preempt state or foreign regulation of federal wartime conduct
and to free military commanders from the doubts and uncer-
tainty inherent in potential subjection to civil suit." Saleh, 590
F.3d at 7 (emphasis added). The D.C. Circuit in Saleh
explained:
In the context of the combatant activities exception,
the relevant question is not so much whether the sub-
stance of the federal duty is inconsistent with a
hypothetical duty imposed by the State or foreign
sovereign. Rather, it is the imposition per se of the
state or foreign tort law that conflicts with the
FTCA’s policy of eliminating tort concepts from the
battlefield. The very purposes of tort law are in con-
flict with the pursuit of warfare. Thus, the instant
case presents us with a more general conflict pre-
emption, to coin a term, "battle-field preemption":
the federal government occupies the field when it
comes to warfare, and its interest in combat is
always "precisely contrary" to the imposition of a
non-federal tort duty.
Saleh, 580 F.3d at 7. After displacing state tort law in favor
of the unique federal interests at stake, the Saleh court dis-
missed the complaints based on sovereign immunity.
Thus, to reject the defendants’ claim of sovereign immunity
under Saleh amounts to subjecting government contractors
engaged in the war effort of the military to suits, thereby
interfering with the very combatant activities intended to be
protected from suit by federal statutory and common law. The
government’s unique interest can only be protected and pre-
served if the Saleh defense to a potential suit is preserved by
our review at the outset of litigation. This is because the Saleh
immunity serves the interests of freeing officers engaged in
combatant activities from "the doubts and uncertainty inherent
AL SHIMARI v. CACI INTERNATIONAL 103
in potential subjection to civil suit." Saleh 580 F.3d at 7
(emphasis added).
Although the legislative history of the combatant activities
exception is "singularly barren," courts have long recognized
that the exception serves to exempt activities that "by their
very nature should be free from the hindrance of a possible
damage suit." Johnson v. United States, 170 F.2d 767, 769
(9th Cir. 1948) (emphasis added). In recognizing the interests
that made qualified immunity a protection against standing
trial, the Supreme Court has similarly emphasized that "the
public interest may be better served by action taken ‘with
independence and without fear of consequences.’" Mitchell,
472 U.S. at 525 (quoting Harlow v. Fitzgerald, 457 U.S. 800,
819 (1982)). These "consequences" were "not limited to lia-
bility for money damages" but also included "‘the general
costs of subjecting officials to the risks of trial-distraction of
officials from their governmental duties, inhibition of discre-
tionary action, and deterrence of able people from public ser-
vice.’" Id. at 526 (quoting Harlow, 457 U.S. at 816).
Moreover, in Filarsky, the Supreme Court relied on the
same public interest in holding that common law immunity
protects not only government employees but also private con-
tractors when performing the government’s work:
The public interest in ensuring performance of gov-
ernment duties free from the distractions that can
accompany even routine lawsuits is also implicated
when individuals other than permanent government
employees discharge these duties. Not only will such
individuals’ performance of any ongoing govern-
ment responsibilities suffer from the distraction of
lawsuits, but such distractions will also often affect
any public employees with whom they work by
embroiling those employees in litigation.
Filarsky, 132 S. Ct. at 1666 (citation omitted).
104 AL SHIMARI v. CACI INTERNATIONAL
The same concerns recognized in Mitchell and Filarsky ani-
mate the combatant activities exception here, ensuring that
entities engaged in actions arising out of combatant activities
do not suffer "distraction," are not slowed by "inhibition," and
are willing to serve our country. As Saleh noted, "the federal
government occupies the field when it comes to warfare, and
its interest in combat is always ‘precisely contrary’ to the
imposition of a non-federal tort duty." 580 F.3d at 7; see also
Koohi v. United States, 976 F.2d 1328, 1337 (9th Cir. 1992)
("[O]ne purpose of the combatant activities exception is to
recognize that during wartime encounters no duty of reason-
able care is owed to those against whom force is directed as
a result of authorized military action").
In short, the unique federal interest embodied in the comba-
tant activities exception to the FTCA is an interest in freeing
military actors from the distraction, inhibition, and fear that
the imposition of state tort law by means of a potential civil
suit entails. It makes no difference whether the military actors
are low-level soldiers, commanders, or military contractors.
The Supreme Court has made clear that immunity attaches to
the function being performed, and private actors who are hired
by the government to perform public functions are entitled to
the same immunities to which public officials performing
those duties would be entitled. See Filarsky, 132 S. Ct. at
1661-66. The unanimous Supreme Court in Filarsky empha-
sized that imposing liability on private individuals performing
public functions will result in "unwarranted timidity" on the
part of "those engaged in the public’s business," calling this
concern "the most important special government immunity-
producing concern." Id. at 1665 (internal quotation marks
omitted). It recognized the need to "afford[ ] immunity not
only to public employees but also to others acting on behalf
of the government" because "often when there is a particular
need for specialized knowledge or expertise . . . the govern-
ment must look outside its permanent work force to secure the
services of private individuals." Id. at 1665-66.
AL SHIMARI v. CACI INTERNATIONAL 105
This case presents just such an example. The military had
a need for specialized language and interrogation skills and
hired private individuals to work with the military in perform-
ing its public function. Because potential suit and liability
would result in "unwarranted timidity" on the part of these
government contractors, they must share the common law
immunity enjoyed by the military and retained by the FTCA
combatant activities exception. These interests underlying this
immunity are only protected if the immunity is not only an
immunity from liability, but also an immunity from suit.
Thus, the denial of a combatant activities defense will be
effectively unreviewable at final judgment because the defen-
dants will no longer be able to vindicate their right to avoid
the burdens and distractions of trial. Military contractors will
have to undertake future actions "arising out of combatant
activities" with the understanding that they are presumptively
subject to civil tort law and must abide by state law duties of
care in the middle of a foreign war zone. The result will be
exactly what the Supreme Court cautioned against in Filarsky:
"those working alongside [government employees] could be
left holding the bag — facing full liability for actions taken
in conjunction with government employees who enjoy immu-
nity for the same activity." 132 S. Ct. at 1666. The govern-
mental interests in uninhibited military action and in the
attraction of talented candidates, both public and private, ani-
mate the combatant activities exception, and these interests
are far broader than the limited interests recognized by the
majority, which focuses only on "sensitive military issues."
Ante, at 27. Such a narrow mischaracterization of the federal
interest ignores the broad language of the exception (protect-
ing actions "arising out of combatant activities") and finds no
support in federal common law.
At bottom, it is readily apparent that the district courts’
orders denying Saleh immunity fall comfortably within the
collateral order doctrine. As the Supreme Court has said in
summarizing its collateral order precedents:
106 AL SHIMARI v. CACI INTERNATIONAL
In each case, some particular value of a high order
was marshaled in support of the interest in avoiding
trial: honoring the separation of powers, preserving
the efficiency of government and the initiative of its
officials, respecting a State’s dignitary interest, and
mitigating the government’s advantage over the indi-
vidual. That is, it is not mere avoidance of a trial, but
avoidance of a trial that would imperil a substantial
public interest, that counts when asking whether an
order is "effectively" unreviewable if review is to be
left until later.
Will v. Hallock, 546 U.S. 345, 352-53 (2006) (emphasis
added). So it is in these cases.
C. Law-of-War Immunity
Finally, CACI and L-3 claimed protection from suit and
from the application of Iraqi law under law-of-war immunity,
as recognized in the Supreme Court’s decision in Dow v.
Johnson, 100 U.S. 158 (1879), because they were part of the
occupying force in the middle of an ongoing war.3
The plaintiffs agree that the district courts conclusively
decided that defendants were not entitled to law-of-war
immunity and that the issue is collateral to the merits. They
contend, however, that this immunity is not an immunity from
3
In Al-Quraishi, the district court determined that Iraqi law would apply
to the action under Maryland’s adherence to the lex loci delicti rule in ana-
lyzing choice of law in tort actions. 728 F. Supp. 2d at 761-62. In Al Shi-
mari, the district court noted that it would "present the parties with the
opportunity to address the choice of law issue at a later date," and did not
determine what law would apply. 657 F. Supp. 2d at 725 n.7. Virginia law,
however, also applies the lex loci delicti rule and, thus, Iraqi law would
appear to apply in that action as well. See Colgan Air, Inc. v. Raytheon
Aircraft Co., 507 F. 3d 270, 275 (4th Cir. 2007) (per curiam). As Judge
Wilkinson notes, however, the plaintiffs in Al Shimari contend that Vir-
ginia law should apply.
AL SHIMARI v. CACI INTERNATIONAL 107
suit but a doctrine of jurisdiction, depriving courts in an occu-
pied territory of jurisdiction over the occupying forces.
In its amicus brief, the United States noted, without expla-
nation, that "Dow and the policies it reflects may well inform
the ultimate disposition of these claims," but the United States
was "not prepared . . . to conclude that the contractor defen-
dants have demonstrated a right to immediate review of their
contentions based on Dow alone."
The majority again resorts to labels to resolve this immu-
nity issue, noting that Dow does not use the word "immunity."
The fact that Dow does not use the specific term "immunity,"
however, has little relevance to the question of whether a rul-
ing denying application of its holding is immediately appeal-
able. Dow characterized the defense at issue as an "exemption
from . . . civil proceedings,"4 100 U.S. at 165 (emphasis
added), which, as was customary to find at the time, led to a
lack of "jurisdiction" of the court over the defendant, id. at
170. In The Schooner Exchange v. McFaddon, 11 U.S. (7
Cranch) 116 (1812), which was relied on by Dow, the Court
similarly used the language of "jurisdiction," and this phrase
was later interpreted by the Supreme Court to stand for what
we call, in today’s parlance, foreign sovereign immunity. See
Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486
(1983). Further, subsequent cases, including Supreme Court
decisions, recognize that the Dow protection is a type of
4
Compare this language with the Supreme Court’s more recent charac-
terization that qualified immunity "shields government agents from liabil-
ity for civil damages," Behrens, 516 U.S. at 305 (internal quotation marks
and alterations omitted) (emphasis added), or that it serves as a "protection
to shield [defendants] from undue interference with their duties and from
potentially disabling threats of liability," Harlow v. Fitzgerald, 457 U.S.
801, 806 (1982) (emphasis added), and again that government officials are
"shielded from liability for civil damages," id. at 818 (emphasis added).
See also Anderson v. Creighton, 483 U.S. 635, 638 (1987) (noting that
qualified immunity "shield[s]" government officials "from civil damages
liability").
108 AL SHIMARI v. CACI INTERNATIONAL
immunity. See Underhill v. Hernandez, 168 U.S. 250, 252-53
(1897); Moyer v. Peabody, 212 U.S. 78, 85-86 (1909); "Act
of State" Immunity, 57 Yale L.J. 108, 112 (1947).
Rather than fuss with a label, however, we must determine
the nature of the defense recognized in Dow so as to be able
to determine whether its rejection is immediately appealable.
The majority finds it "curious to imagine the nineteenth
century [Supreme] Court regarding its decisions in the Civil
War cases as having durable precedential effect," citing no
authority to reach that conclusion, and implies they may not
"possess continued relevance beyond their immediate con-
text." Ante, at 23-24. By contrast, at oral argument, the United
States postulated that the "principles of Dow may have further
life in other doctrines," and specifically argued that these
principles may be "given effect" by courts in their recognition
of the federal common law defense identified in Saleh based
on the combatant activities exception. Dow and other cases of
its era were decided as a matter of federal and international
common law at a time when the Supreme Court recognized
the validity of such common law. See Ford v. Surget, 97 U.S.
594, 613 (1878) (finding a Mississippi civilian immune from
civil suit for destroying another citizen’s cotton in support of
the occupying Confederate army based on the "common laws
of war—those maxims of humanity, moderation, and justice"
and the "law of nations").
Although the invocation of federal common law was
restricted severely with the Supreme Court’s decision in Erie
Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the Court’s
decision in Boyle nonetheless explicitly instructs courts to dis-
place state tort law with federal common law when the impo-
sition of state tort law would conflict with uniquely federal
interests. The immunity recognized in Dow falls within the
same body of federal common law that displaces state law
under the methodology employed by Boyle. And "common-
law principles of . . . immunity were incorporated into our
AL SHIMARI v. CACI INTERNATIONAL 109
judicial system and . . . should not be abrogated absent clear
legislative intent to do so." Filarsky, 132 S. Ct. at 1665 (inter-
nal quotation marks omitted). For this reason, the immunity
claimed by the defendants under Dow and the immunity
claimed under the common law defense based on the comba-
tant activities exception are simply two variations of the same
principle; they are both a common law immunity from suit.
And Boyle provides the methodology for preempting state law
and applying the federal common law immunity, as pointed
out in Saleh.
The majority relies heavily on the Supreme Court’s state-
ment that an immunity from suit must typically be derived
from "an explicit statutory or constitutional guarantee that
trial will not occur." Ante, at 24. Thus, the majority would
conclude that Saleh preemption cannot be an immunity from
suit, because there is "no contention that the Supreme Court
in Boyle[ ], from which Saleh preemption is derived, relied on
any such explicit guarantee embodied in statute or in the Con-
stitution." Ante, at 24-25. Retreating almost immediately from
this categorical statement, however, the majority then admits
in a footnote that the Supreme Court has recognized an
implicit immunity from suit when such immunity has a
"‘good pedigree in public law,’ which more than makes up for
its implicitness." Ante, at 24 n.9 (quoting Digital Equip., 511
U.S. at 875). Yet, it continues to overlook the fact that the rec-
ognized need in Dow and other cases to free military opera-
tions from the duties and standards of state tort law represent
the same kind of public law pedigree that led the Supreme
Court to recognize qualified immunity, which is a common
law defense and is concededly an immediately appealable
issue. As the Supreme Court recently instructed, "We consult
the common law to identify those governmental functions that
were historically viewed as so important and vulnerable to
interference by means of litigation that some form of absolute
immunity from civil liability was needed to ensure that they
are performed with independence and without fear of conse-
110 AL SHIMARI v. CACI INTERNATIONAL
quences." Rehberg v. Paulk, 132 S. Ct. 1497, 1503 (2012)
(internal quotations marks omitted).
Therefore, for the same reasons that the denial of the fed-
eral common law defense recognized in Saleh is immediately
appealable, inasmuch as the exemption from suit will effec-
tively be unreviewable on appeal, the denial of the law-of-war
immunity is immediately appealable, either independently or
as part and parcel of the Saleh defense. The similarity in lan-
guage is striking. Dow asks, "[w]hat is the law which governs
an army invading an enemy’s country," and concludes that
"[i]t is not the civil law of the invaded country; it is not the
civil law of the conquering country: it is military law,—the
law of war." 100 U.S. at 170. Dow continued to reason that
"for the protection of the officers and soldiers of the army"
the supremacy of the common law of war over the civil law
"is as essential to the efficiency of the army as the supremacy
of the civil law at home." Id. (emphasis added). Similarly,
Saleh emphasizes the necessary "elimination of tort from the
battlefield, both to preempt state or foreign regulation of fed-
eral wartime conduct and to free military commanders from
the doubts and uncertainty inherent in potential subjection to
civil suit." 580 F.3d at 7 (emphasis added). The freedom from
"potential subjection" to civil suits and the ability of military
personnel and contractors performing military functions to act
efficiently, without the distraction and inhibition inherent in
the potential imposition of state tort standards of duty onto an
active, foreign war zone cannot be vindicated by reviewing
the liability of officers or entities after a final judgment.
***
The denial of any one of the three immunities claimed by
CACI and L-3 is undoubtedly immediately appealable under
the collateral order doctrine. Not only has the denial of such
immunities, even on 12(b)(6) motions, traditionally been
found to be immediately appealable, see, e.g., Behrens, 516
U.S. at 305-06, but the substance of each immunity claim is
AL SHIMARI v. CACI INTERNATIONAL 111
a paradigm example of the type of collateral order that was
held immediately appealable in Cohen. The immunities
claimed protect the defendants from judicial intervention into
battlefield operations, a protection which would necessarily
be breached by subjecting battlefield operatives to suit. As
noted above, these immunities can only be vindicated and
protected by allowing interlocutory appellate review.
III
Upon the necessary recognition of our appellate jurisdiction
to consider the immunities on an interlocutory basis, we must,
at once and as the next immediate step, consider our subject
matter jurisdiction, as well as the subject matter jurisdiction
of the district courts. "On every writ of error or appeal, the
first and fundamental question is that of jurisdiction, first of
this court, and then of the court from which the record comes.
This question the court is bound to ask and answer for itself
. . . ." Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94
(1988). Article III provides that the judicial power only
extends to "Cases" or "Controversies," U.S. Const. art. III,
§ 2, and the "requirement that jurisdiction be established as a
threshold matter ‘spring[s] from the nature and limits of the
judicial power of the United States’ and is ‘inflexible and
without exception,’" id. at 94-95 (quoting Mansfield, C. &
L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)).
Even when faced with a collateral order immunity appeal,
we are not relieved of the duty to ask first whether the district
courts and then whether our court have Article III jurisdiction
to hear these cases. See In re Methyl Tertiary Butyl Ether
Prods. Liab. Litig., 488 F.3d 112, 121-22 (2d Cir. 2007) ("We
conclude that review of [a removal] question is required pur-
suant to our independent obligation to satisfy ourselves of the
jurisdiction of this court and the court below. . . . This obliga-
tion is not extinguished because an appeal [from the denial of
sovereign immunity] is taken on an interlocutory basis and
not from a final judgment"); Kwai Fun Wong v. United States,
112 AL SHIMARI v. CACI INTERNATIONAL
373 F.3d 952, 960-61 (9th Cir. 2004) ("Resolution of subject
matter jurisdiction is . . . necessary to ensure meaningful
review of the district court’s interlocutory rulings because if
the appellate courts lack jurisdiction, they cannot review the
merits of these properly appealed rulings" (internal quotation
marks omitted) (alterations in original)); Hospitality House,
Inc. v. Gilbert, 298 F.3d 424, 429 (5th Cir. 2002) ("[W]here,
as in the instant case, we have interlocutory appellate jurisdic-
tion to review a district court’s denial of Eleventh Amend-
ment immunity, we may first determine whether there is
federal subject matter jurisdiction over the underlying case");
Timpanogos Tribe v. Conway, 286 F.3d 1195, 1201 (10th Cir.
2002) ("[J]urisdiction is a threshold question which an appel-
late court must resolve before addressing the merits of the
matter before it. . . . [B]ecause we have appellate jurisdiction
over the interlocutory appeal of defendants’ assertion of Elev-
enth Amendment immunity, we also have appellate jurisdic-
tion to determine whether the district court had subject matter
jurisdiction over the Tribe’s underlying claim against defen-
dants in the first instance").5
In the cases presently before us, the plaintiffs have asked
civilian courts to entertain state tort law causes of action
based on conduct taken in connection with an active and
ongoing war against another sovereign. To entertain the plain-
tiffs’ claims would impose, for the first time, state tort duties
onto an active war zone, raising a broad array of interferences
by the judiciary into the military functions textually commit-
ted by our Constitution to Congress, the President, and the
Executive Branch. See U.S. Const. art. I, § 8, cls. 11-14
5
Some of these courts have considered jurisdictional questions by exer-
cising pendent appellate jurisdiction over the question, reasoning that
determining subject matter jurisdiction is "necessary to ensure meaningful
review" of the immunity question. See Kwai Fun Wong, 373 F.3d at 960-
61; Timpanogos Tribe, 286 F.3d at 1201. Other courts have considered it
because of their inherent power and obligation under Steel Co. to consider
jurisdiction. See Hospitality House, 298 F.3d at 429-30. The result is the
same under either approach.
AL SHIMARI v. CACI INTERNATIONAL 113
(authorizing Congress to declare war, to raise armies and
create a navy, and to make rules for the military); id. art. II,
§ 2 (providing that the President "shall be Commander-in-
Chief of the army and navy of the United States, and of the
militia of the several states, when called into the actual Ser-
vice of the United States"). Because these cases implicate sev-
eral "textually demonstrable constitutional commitment[s]" of
authority to the "political department[s]," they have no place
in federal courts and must be dismissed for lack of jurisdic-
tion. Baker v. Carr, 369 U.S. 186, 216 (1962).
The plaintiffs in these cases were seized in a war zone by
the military, having been suspected of hostile activity or of
possessing useful intelligence. The function of detaining and
interrogating such persons to obtain intelligence was undoubt-
edly critical to the success of military strategies and cam-
paigns. The judgment of whom to interrogate, what to inquire
about, and the techniques to use fell comfortably within the
powers of the Commander-in-Chief and his subordinates in
the chain of command. And CACI and L-3, as civilian con-
tractors of the military, worked side by side with the military
to carry out these military operations under the ultimate
supervision and command of the military "during a period of
armed conflict and in connection with hostilities." They were
engaged by the military to pursue interrogations under the
command and control of military personnel with respect to
persons detained by the military. And, consistent with the
close connection between the military and the military con-
tractors, the complaints allege that the military and the civil-
ian contractors conspired in their abuse of the military
detainees.
For the reasons I gave in my panel concurrence in Al Shi-
mari, 658 F.3d at 420-25 (Niemeyer, J., concurring), and the
reasons given by Judge King in his majority opinion in Taylor
v. Kellogg Brown & Root Services, 658 F.3d 402, 412 (4th
Cir. 2011), I would conclude that the political question doc-
trine deprives both this court and the district courts of subject
114 AL SHIMARI v. CACI INTERNATIONAL
matter jurisdiction to hear these cases. See also Massachusetts
v. EPA, 549 U.S. 497, 516 (2007) ("It is . . . familiar learning
that no justiciable ‘controversy’ exists when parties seek adju-
dication of a political question"); Tiffany v. United States, 931
F.2d 271, 277 (4th Cir. 1991) ("Of the legion of governmental
endeavors, perhaps the most clearly marked for judicial defer-
ence are provisions for national security and defense. . . . The
strategy and tactics employed on the battlefield are clearly not
subject to judicial review"); Carmichael v. Kellogg Brown &
Root Servs., Inc., 572 F.3d 1271, 1283 (11th Cir. 2009).
Accordingly, while we undoubtedly have appellate jurisdic-
tion under Cohen to consider these appeals at this stage in the
proceedings, we lack subject matter jurisdiction over these
cases, as did the district courts. I would therefore dismiss
these appeals for lack of subject matter jurisdiction and
remand the cases to the district courts with orders that they
likewise dismiss the cases for lack of subject matter jurisdic-
tion.
Judge Wilkinson and Judge Shedd have indicated that they
join this opinion.