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Media Alerts - Al Shimari, et al. v. CACI Premier Technology, Inc., et al. -- Fourth Circuit
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November 8, 2016
  Al Shimari, et al. v. CACI Premier Technology, Inc., et al. -- Fourth Circuit
Fourth Time's the Charm? Fourth Circuit Decides Applicability of Political Question Doctrine to Abuse at Abu Ghraib Prison

Areas of Law: Constitutional Law

Issue Presented: Whether the district court erred in dismissing appellant's complaint as non-justiciable under the political question doctrine, where that complaint alleged abuses suffered at the hands of a government contractor at the Abu Ghraib prison in Iraq.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit vacated the dismissal of the appellant's complaint by the United States District Court for the Eastern District of Virginia, in the fourth appearance of this case before the court. The district court had held that the complaint presented a non-justiciable political question because a judicial decision on the complaint (by former detainees of the Abu Ghraib prison in Iraq against a military contractor) would question sensitive military judgments. However, the Fourth Circuit found the district court erred by conducting an incomplete analysis into whether the military had direct control over the actions of the defendant and therefore outlined new rules as to when government contractors are shielded from judicial review under the political question doctrine. The case was remanded for the district court to reexamine its subject matter jurisdiction over the case based on the new rules.

Extended Summary: In 2008, four Iraqi nationals filed suit against CACI Premier Technology, Inc. (CACI), alleging repeated and systemic abuse by the defendant's employees, while they were detained by the United States at the Abu Ghraib prison in Iraq in 2003 and 2004. CACI is a government contractor that performed interrogation services for the military at Abu Ghraib during the period of the appellants' detention. The appellants were ultimately released from Abu Ghraib without charges, but allege in the complaint that CACI employees committed acts involving torture, war crimes, and cruel, inhuman, or degrading treatment during the period of their incarceration and all in violation of the Alien Tort Statute. The appellants also filed common law tort claims, including assault and battery, sexual assault and battery, and intentional infliction of emotional distress. The appellants assert that the alleged acts of abuse occurred because there was a command vacuum at the prison, in that military leaders failed to exercise control over the actions of the CACI interrogators and low-level military officers.

The instant appeal is the fourth time this case has been before the Fourth Circuit. The last time the case was before the court, the Fourth Circuit remanded the case back to the district court to conduct jurisdictional discovery on the issue of whether the political question doctrine barred the plaintiffs' claims. In that decision, the court declined to decide the political question issue because of a limited appellate record, but instructed the district court to undertake a factual inquiry as to the extent of the military's actual control over CACI interrogators and then to decide whether the claims implicated the political question doctrine.

On remand, the district court dismissed the complaint finding the claim presented a non-justiciable political question; more specifically, the district court found the military exercised direct control over interrogations at the prison, which would require an improper inquiry into sensitive military judgments under the political question doctrine. The district court also held that it lacked any judicially manageable standards to resolve the claims.

The appellants filed this appeal to the Fourth Circuit, asserting that the district court erred in finding the military had direct control over interrogations and in failing to evaluate whether the military had actually exercised such control over the actions of CACI interrogators. The appellants also argued that their claims would not require an evaluation of sensitive military judgments because the claims challenged the legality, not the reasonableness, of CACI's conduct. Finally, the appellants argued that the district court did indeed have manageable standards to resolve the claims.

The court first noted that a claim is not shielded from judicial review merely because it arises from action taken under orders of the military. In re KBR, Inc., Burn Pit Litigation, 744 F.3d 326, 333 (4th Cir. 2014). In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court established a six-factor test to aid courts in determining whether a case presents a political question barred from judicial review. Then, in Taylor v. Kellogg Brown & Root Services, Inc., 658 F.3d 402 (4th Cir. 2011), the Fourth Circuit distilled the six Baker factors into two factors to determine whether a court has subject-matter jurisdiction in a civil liability suit against a government contractor: (1) whether the government contractor was under the direct control of the military, and (2) whether a decision on the merits of the claim would require the court to question actual and sensitive military judgments. An affirmative response to either factor will generally trigger the political question doctrine.

Discussing the first factor from Taylor, the court in the instant case found that the district court failed to properly examine the level of direct control the military had over the actions of CACI. The district court found evidence that the military had formal control over the actions of CACI interrogators in the form of a command structure, outlined procedures, and various memoranda establishing the rules of interrogation. That court concluded such evidence was enough to satisfy the first Taylor prong, and dismissed the complaint without inquiring into the level of actual control. The Fourth Circuit, however, rejected the district court's conclusion and found there was evidence that the district court had ignored of the military's failure to exercise actual control. For example, the district court failed to evaluate a government report concluding that the higher ranking officers at the prison failed to supervise their subordinates.

The court laid out two new rules to aid the district court on remand in deciding this first Taylor factor. First, the Fourth Circuit instructed that when a contractor engages in a lawful action under the actual control of the military, the contractor's action will be considered a de facto military decision shielded from judicial review under the political question doctrine. Second the Fourth Circuit instructed that when a contractor engages in unlawful conduct, irrespective of the nature of control exercised by the military, the contractor cannot claim protection under the political question doctrine because the military cannot lawfully exercise its authority by directing a contractor to engage in unlawful activity. In other words, the actions of a contractor can only be shielded from judicial review under the first Taylor factor if they both were committed under actual control of the military and were lawful.

The court then turned to the second Taylor factor, which considers whether judicial review will require the district court to question military judgments. The court concluded that the district court analysis was incomplete because it failed to draw the distinction between lawful and unlawful conduct as related to the military. The court stated that unlawful actions cannot be based on military expertise and judgment, so claims alleging unlawful conduct applicable to the CACI employees will fall outside the political question doctrine. As a result, the court ordered that the district court must, on remand, separate justiciable claims based on unlawful actions from those that actually question military decisions and are therefore shielded from judicial review. The court also noted that statutory allegations against a government contractor, such as the one in this case involving the Alien Tort Statute, are generally justiciable because adjudication of those claims only requires a court to state the law and apply the facts to it, a traditional judicial function that does not require a judgment on military decisions. According to the court, some of the alleged conduct will undoubtedly be subject to judicial review as clearly unlawful, such as sexual assaults and beatings, while others may be shielded, but the court declined to make a comprehensive determination on those decisions.

The court also ruled that the district court does indeed have manageable standards to resolve the issues herein on remand. The court stated that although the substantive international law at issue in the complaint may be unfamiliar and complicated, it is the function of the judiciary to decide such issues via interpretation of statutory terms and established international norms, as other federal courts have done before. The court ruled that the district court cannot abdicate the normal judicial role just because of the complexity of the issues presented.

Panel: Judges Keenan, Floyd, and Thacker

Argument Date: 05/12/2016

Date of Issued Opinion: 10/21/2016

Docket Number: No. 15-1831

Decided: Vacated and remanded by published opinion

Case Alert Author: Patrick J.L. Dillon, University of Maryland Carey School of Law

Counsel: ARGUED: Baher Azmy, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New York, for Appellants. John Frederick O'Connor, Jr., STEPTOE & JOHNSON, LLP, Washington, D.C., for Appellee. ON BRIEF: Katherine Gallagher, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New York; Robert P. LoBue, PATTERSON BELKNAP WEBB & TYLER LLP, New York, New York; Shereef Hadi Akeel, AKEEL & VALENTINE, P.C., Troy, Michigan; Jeena Shah, CONSTITUTIONAL RIGHTS & INTERNATIONAL HUMAN RIGHTS CLINIC, Newark, New Jersey, for Appellants. Stephen I. Vladeck, Washington, D.C.; Charles S. Barquist, Los Angeles, California, Betre M. Gizaw, MORRISON & FOERSTER LLP, Washington, D.C., for Amici Professors of Constitutional Law and Federal Courts. Eric L. Lewis, A. Katherine Toomey, James P. Davenport, Waleed Nassar, LEWIS BAACH PLLC, Washington, D.C.; Melissa Hooper, HUMAN RIGHTS FIRST, New York, New York, for Amici Retired Military Officers. Dror Ladin, Hina Shamsi, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Amici American Civil Liberties Union Foundation, Amnesty International, and Human Rights Watch. George M. Clarke, III, BAKER & MCKENZIE LLP, Washington, D.C.; Alberto Mora, Carr Center For Human Rights Policy, HARVARD KENNEDY SCHOOL, Cambridge, Massachusetts, for Amicus Alberto Mora. William J. Aceves, CALIFORNIA WESTERN SCHOOL OF LAW, San Diego, California; Deena R. Hurwitz, International Human Rights Law Clinic, AMERICAN UNIVERSITY, Washington, D.C., for Amicus Juan E. Mendez. L. Kathleen Roberts, Nushin Sarkarati, THE CENTER FOR JUSTICE & ACCOUNTABILITY, San Francisco, California; Michael E. Tigar, Oriental, North Carolina; Ali A. Beydoun, UNROW HUMAN RIGHTS IMPACT LITIGATION CLINIC, Washington, D.C., for Amici Abukar Hassan Ahmed, Dr. Juan Romagoza Arce, Zita Cabello, Aziz Mohamed Deria, Carlos Mauricio, Gloria Reyes, Oscar Reyes, Cecilia Santos Moran, Zenaida Velasquez, and Bashe Abdi Yousuf. Lawrence S. Ebner, Lisa N. Himes, Tami Lyn Azorsky, Jessica C. Abrahams, DENTONS US LLP, Washington, D.C., for Amici Professional Services Council-The Voice of the Government Services Industry, and Coalition for Government Procurement. Raymond B. Biagini, Daniel L. Russell Jr., Herbert L. Fenster, COVINGTON & BURLING LLP, Washington, D.C., for Amicus KBR, Incorporated.

Author of Opinion: Judge Keenan

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/08/2016 02:48 PM     4th Circuit  

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