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Tort – Dismissal for Iraqi Detainee Tort Claims

Al-Shimari v. CACI Int’l Inc. (Lawyers Weekly No. 001-149-11, 41 pp.) (Niemeyer, J.) (King, J., dissenting) Appealed from the U.S. District Court for the District of Virginia at Alexandria. (Lee, J.) 4th Cir. Click here for the full-text opinion.

Holding: Claims filed by four Iraqi citizens seized by the U.S. military in the Iraq war zone, against a government contractor who allegedly conspired to torture claimants during interrogations, are pre-empted by federal law and displaced, and the case is remanded for dismissal by the District Court.


The contractor filed a motion to dismiss on numerous grounds, including the political question doctrine; federal pre-emption under Boyle v. United Technologies Corp., 487 U.S. 600 (1988), and Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009); and derivative sovereign immunity. The District Court denied the contractor’s motion, concluding that plaintiffs’ claims are justiciable because civil tort claims against private actors for damages do not interfere with the separation of powers; that defendant’s claim of immunity must be developed through discovery, and dismissal now would be premature; and that plaintiffs’ claims are not pre-empted by the combatant activities exception at this stage because discovery is required to determine whether the interrogations here constitute combatant activities within the meaning of the exception.

On the contractor’s appeal, we reverse and remand with instructions to dismiss the case. We conclude the plaintiffs’ state law claims are pre-empted by federal law and displaced by it, as articulated in Saleh v. Titan Corp. What we hold is that conduct carried out during war and the effects of that conduct are, for the most part, not properly the subject of judicial evaluation. The commander in chief and the military under him have adopted policies, regulations and manuals and have issued orders and directives for military conduct and they have established facilities and procedures for addressing violations and disobedience.

On this structural ground alone, and not on any judgment about the conduct itself, we are requiring that the claims of these four Iraqi detainees alleging abuse in a military prison in Iraq be dismissed by the district court. We reverse the District Court’s order denying the contractor’s motion to dismiss and remand with instructions to dismiss.


(Niemeyer, J., writing separately to reverse and dismiss): I would conclude that in addition to pre-emption, the political question doctrine under Baker v. Carr, 369 U.S. 186 (1982), and derivative absolute immunity under Mangold v. Analytic Servs. Inc., 77 F.3d 1442 (4th Cir. 1996), require dismissal of this case. I note that Judge King in Taylor v. Kellogg, would apparently agree with application of the political question doctrine were he to have addressed the issue. But, in his dissenting opinion, he has chosen to address only federal pre-emption and not the political question doctrine. Nor has he addressed derivative absolute immunity, even though all three issues were raised by defendant contractor on appeal.

(King, J., dissenting): I write to dissent from my distinguished colleagues in the majority. For the same reasons I discuss at length in my dissenting opinion in our companion case of Al-Quraishi v. L-3 Services Inc., we lack jurisdiction over this interlocutory appeal to decide, as the majority does, that the plaintiffs’ claims are preempted by federal law. Were we authorized to adjudicate the merits of the preemption defense, however, we should rule it unavailing here. Because the majority erroneously strains to discover a new form of pre-emption unjustified by Supreme Court precedent, and more fundamentally, because we lack jurisdiction to announce this new rule, I respectfully dissent.

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