United States District Court, E.D. Virginia, Alexandria Division
[Copyrighted Material Omitted]
For Suhail Najim Abdullah Al Shimari, Taha Yaseen Arraq Rashid, Salah Hasan Nusaif Jasim Al-Ejaili, Asa'ad Hamza Hanfoosh Al-Zuba'e, Plaintiffs: George Brent Mickum, IV, LEAD ATTORNEY, Law Firm of George Brent Mickum IV, Bethesda, MD; John Kenneth Zwerling, Law Offices of John Zwerling, Alexandria, VA.
For CACI Premier Technology, Inc, Defendant: Savannah Elizabeth Marion, LEAD ATTORNEY, Steptoe & Johnson LLP, Washington, DC; Conor Phillip Brady, Steptoe & Johnson LLP (DC), Washington, DC.
For United States Department Of Defense, Interested Party: R. Joseph Sher, LEAD ATTORNEY, United States Attorney's Office, Alexandria, VA.
Gerald Bruce Lee, United States District Judge.
THIS MATTER is before the Court on Defendant CACI Premier Technology, Inc.'s (" CACI" or " CACI PT" ) Motion to Dismiss for Lack of Subject-Matter Jurisdiction (Doc. 516). This case concerns the civil tort claims of four Iraqi citizens alleging
that CACI PT, a United States military government contractor, interrogators aided and abetted military soldiers who abused and tortured them during their detention at Abu Ghraib prison (" Abu Ghraib" ) in Iraq. Plaintiffs bring their claims under common law and international law, the latter by virtue of the Alien Tort Statute (" ATS" ).
This matter has been returned to this court on remand from the United States Court of Appeals for the Fourth Circuit for resolution of a dispositive issue. There is one multifaceted issue before the Court--whether the Court has subject-matter jurisdiction where Defendant asserts: (1) that Defendant was under the " plenary" and " direct" control of the military, and (2) that national defense interests are so " closely intertwined" with the military decisions governing Defendant's conduct, such that a decision on the merits " would require the judiciary to question actual, sensitive judgments made by the military." The Court holds that it does not have subject-matter jurisdiction over this matter because after analyzing the Complaint and other documents in the record, as instructed by the Fourth Circuit in Al Shimari II, Al Shimari III, and Taylor, the Court holds that Defendant was under the " plenary" and " direct" control of the military and that national defense interests are so " closely intertwined" with the military decisions governing Defendant's conduct, such that a decision on the merits would require this Court to question actual, sensitive judgments made by the military. Specifically, as to plenary and direct control, the Court holds that based on the discoverable evidence presented, it is clear from the testimony of military personnel that the military controlled how Defendant performed the tasks of interrogating detainees at Abu Ghraib. Additionally, the Court holds that a decision as to the merits of the torture and conspiracy claims alleged in Plaintiffs' Complaint would require the Court to question the sensitive judgments of the military. Finally, the Court also holds that it lacks any judicially manageable standards to adjudicate the merits of this case, including Plaintiffs' ATS claims where, for instance, the Court would have to apply Iraqi law and to determine whether Plaintiffs were " innocent civilians."
I. BACKGROUND AND PROCEDURAL HISTORY
The Court, now adjudicating this case for a third time, finds little reason to provide a detailed recitation of the intricate procedural history of this matter. Now entering its ninth year of pendency, this litigation and its procedural posture result from multiple transfers from various district courts, case consolidation, and numerous pretrial motions, including dispositive motions to dismiss various parties and claims, which have resulted in multiple decisions of this Court. See Al Shimari v. CACI Int'l, Inc., 951 F.Supp.2d 857 (E.D. Va. 2013); Al Shimari v. CACI Int'l, Inc., 933 F.Supp.2d 793 (E.D. Va. 2013); Al Shimari v. CACI Premier Tech, Inc., 657 F.Supp.2d 700 (E.D. Va. 2009); Al Shimari v. CACI Int'l, Inc., No. 1:08cv827, 2008 WL 7348184 (E.D. Va. Nov. 25, 2008). The case has also been before the United States Court of Appeals for the Fourth Circuit three times. See Al Shimari v. CACI Premier Tech., Inc. ( Al Shimari III ), 758 F.3d 516 (4th Cir. 2014); Al Shimari v. CACI Int'l, Inc. ( Al Shimari II ), 679 F.3d 205 (4th Cir. 2012) (en banc); Al Shimari v. CACI Int'l, Inc. (Al Shimari I), 658 F.3d 413 (4th Cir. 2011) on reh'g en banc, 679 F.3d 205 (4th Cir. 2012). Though the procedural history may not be worthy of lengthy recitation, the allegations underlying
Plaintiffs' Complaint are still shocking enough to bear mentioning.
In response to the September 11, 2001 attacks, a multinational coalition force led by troops from the United States and Great Britain invaded Iraq on March 20, 2003. Al Shimari v. CACI Premier Tech., Inc., 657 F.Supp.2d 700, 705 (E.D. Va. 2009). After the invasion, the United States military took over the Abu Ghraib prison and used it to detain and interrogate persons thought to have information about the anti-Coalition insurgency. Al Shimari II, 679 F.3d at 209. The United States contracted with CACI International and CACI PT to help the military interrogate and communicate with these detainees. Id. In the spring of 2004, a well-publicized prison abuse scandal revealed that " detainees at the 'hard site' within Abu Ghraib prison were brutally tortured and abused." (3d Am. Compl. ¶ 1, Doc. 254.)
This case arises out of the detention and alleged abuse of four Iraqi citizens detained at Abu Ghraib between September 22, 2003, and November 7, 2003. (3d Am. Compl. ¶ ¶ 4-7, 11, 24-77.) Plaintiffs are Suhail Najim Abdullah Al Shimari, Taha Yaseen Arraq Rashid, Asa'ad Hamza Hanfoosh Al-Zuba'e, and Salah Hasan Nsaif Jasim Al-Ejaili. ( Id. ¶ ¶ 4-7.) All four Plaintiffs were released from Abu Ghraib between February 1, 2004, and March 27, 2008, without ever being charged with any crime. ( Id. ¶ ¶ 38, 58, 67, 77.)
On June 30, 2008, Plaintiffs filed this action against Defendants: CACI International, a Delaware corporation with its headquarters in Arlington, Virginia; CACI PT, its wholly-owned subsidiary located in Arlington, Virginia; L-3 Services, Inc., a publicly traded Delaware corporation with headquarters in Alexandria, Virginia; and Timothy Dugan, a former CACI employee. ( See Compl. ¶ ¶ 5-9, Doc. 2; 3d Am. Compl. ¶ ¶ 8-9, Doc. 251.) Plaintiffs allege that CACI employees, including Steven Stefanowicz, Daniel Johnson, and Timothy Dugan, conspired with each other, CACI, and military personnel to torture and inflict harm on Plaintiffs and other detainees. (3d Am. Compl. ¶ 78.)
Prior to the current motion, Defendant CACI PT filed a Motion for Reconsideration, or in the alternative Motion to Dismiss Plaintiffs' Alien Tort Statute Claims (Doc. 354), and a Motion to Dismiss Plaintiffs' Third Amended Complaint for Failure to State a Claim (Doc. 363). On June 25, 2013, this Court granted Defendants' motions, holding that it lacked jurisdiction over Plaintiffs' ATS claims because the acts giving rise to those tort claims occurred exclusively in Iraq--a foreign sovereign. (Doc. 460; Al Shimari v. CACI Int'l, Inc., 951 F.Supp.2d 857 (E.D. Va. 2013). The Court held that jurisdiction was circumscribed by the Supreme Court's holding in Kiobel v. Royal Dutch Petroleum, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), whereby the Supreme Court ruled that there was a presumption against the extraterritorial application of acts of Congress. Id. Additionally, this Court held that Iraqi law applied to Plaintiff Al Shimari's common law claims and that the governing laws during the relevant time, which were promulgated by the Coalition Provision Authority, provided immunity from suit to contractors for activities related to the terms and conditions of their contracts. Id. Plaintiffs timely appealed this Court's ruling to the United States Court of Appeals for the Fourth Circuit. (Doc. 461.)
On appeal, the Fourth Circuit vacated and remanded. (Doc. 482; Al Shimari III, 758 F.3d at 537. The Fourth Circuit held that Plaintiffs' claims " touched and concerned" the territory of the United States with sufficient force to rebut the presumption against the extraterritorial application of the ATS. Id. at 530-31. Moreover, the Fourth Circuit remanded the matter for further factual development of the record so that the district court could determine whether the military exerted " direct control" over how contractors interacted with Plaintiffs, such that the court would lack subject-matter jurisdiction on political question grounds. Id. at 520. The Parties have now developed the record and further briefed the issue of whether this case presents a nonjusticiable political question. Defendant's Motion to Dismiss for Lack of Subject-Matter Jurisdiction (Doc. 516) is now properly before the Court.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for dismissal when the court lacks subject-matter jurisdiction over the action. Fed.R.Civ.P. 12(b)(1). The burden is on the plaintiff to show that federal subject-matter jurisdiction is proper. See United States v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). There are two ways in which a defendant may challenge a court's subject-matter jurisdiction under Rule 12(b)(1). First, a defendant may attack the complaint on its face when the complaint " fails to allege facts upon which subject matter jurisdiction can be based." Adams, 697 F.2d at 1219. In such a case, all facts as alleged by the plaintiff are assumed to be true. Id. Alternatively, a Rule 12(b)(1) motion to dismiss may attack the existence of subject-matter jurisdiction over the case apart from the pleadings. See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (citing Mortensen v. First Fed. Sav. & Loan Ass 'n, 549 F.2d 884, 891 (3d Cir. 1977)); White v. CMA Constr. Co., 947 F.Supp. 231, 233 (E.D. Va. 1996). In that instance, the court's " very power to hear the case" is at issue. Mortensen, 549 F.2d at 891.
Where subject-matter jurisdiction is being attacked apart from the pleadings, " [n]o presumptive truthfulness attaches to the plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. Additionally, " the district court may regard the pleadings as mere evidence on the issue [of jurisdiction] and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Velasco v. Gov't of Indon., 370 F.3d 392, 398 (4th Cir. 2004); see Thigpen v. United States, 800 F.2d 393, 396 (4th Cir. 1986) (" In contrast to its treatment of disputed issues of fact when considering a Rule 12(b)(6) motion, a court asked to dismiss for lack of jurisdiction may resolve factual disputes to determine the proper disposition of the motion." ). The district court is then free to weigh the evidence to determine the existence of jurisdiction. Adams, 697 F.2d at 1219. However, " when the jurisdictional facts are inextricably intertwined with those central to the merits, the [district] court should resolve the relevant factual disputes only after appropriate discovery." Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009). Where a court determines that a nonjusticiable question is presented it must dismiss the action. Fed.R.Civ.P. 12(h)(3).
The Court GRANTS Defendant CACI PT's Motion to Dismiss for Lack of Subject-Matter Jurisdiction for two reasons. First, because Defendant was under the " plenary" and " direct" control of the military. Second, because national defense interests are so " closely intertwined" with the military decisions governing Defendant's conduct that a decision on the merits " would require this Court to question actual, sensitive judgments made by the military."
A. Political Question Doctrine
" The political question doctrine, at its core, recognizes as nonjusticiable any question whose resolution is committed to a coordinate branch of government and whose evaluation by a court would require the application of standards judicially undiscoverable or judicially unmanageable." Al Shimari I, 658 F.3d at 421; see Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); see also Vieth v. Jubelirer, 541 U.S. 267, 277, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004). In Baker, the hallmark political question doctrine case, the Supreme Court set forth the boundaries of the political question doctrine. Baker, 369 U.S. at 209. The Court defined a political question as any case that presented one of the following attributes: (1) " a textually demonstrable constitutional commitment of the issue to a coordinate political department; " (2) " a lack of judicially discoverable and manageable standards for resolving it; " (3) " the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; " (4) " the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; " (5) " an unusual need for unquestioning adherence to a political decision already made; " or (6) " the potentiality of embarrassment from multifarious pronouncements by various departments on one question." Baker, 369 U.S. at 217.
Unless one of the six Baker " formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question's presence." Department of Commerce v. Montana, 503 U.S. 442, 456, 112 S.Ct. 1415, 118 L.Ed.2d 87 (1992) (quoting Baker, 369 U.S. at 217). Accordingly, before declaring a case " to be nonjusticiable, a court must undertake 'a discriminating analysis'" that includes the litigation's " susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action." Lane v. Halliburton, 529 F.3d 548, 559 (5th Cir. 2008) (quoting Baker, 369 U.S. at 211-12). Such an analysis involves a " delicate exercise in constitutional interpretation." Baker, 369 U.S. at 211.
The Constitution commits the command of our armed forces to the President of the United States, as " Commander in Chief." U.S. Const, art. II, § 2. Moreover, federal courts lack the expertise and information necessary for the proper evaluation of military tactics. Tiffany v. United States, 931 F.2d 271, 278 (4th Cir. 1991) (citing Rappenecker v. United States, 509 F.Supp. 1024, 1029 (N.D. Cal. 1980)). Consequently, military judgments are often shielded from judicial review by the political question doctrine. Taylor v. Kellogg Brown & Root Servs., Inc., No. CIV. 2:09CV341, 2010 WL 1707530, at *4 (E.D. Va. Apr. 16, 2010), as amended (Apr. 19, 2010), aff'd in part, vacated in part, 658 F.3d 402 (4th Cir. 2011). This is not to say, however, that " all cases involving the military are automatically foreclosed by the political question doctrine."
Carmichael v. Kellogg, Brown & Root Serv., 572 F.3d 1271, 1281 (11th Cir. 2009). A court must " look beyond the complaint, considering how [Plaintiff] might prove [his] claims and how [Defendant] would defend." Lane, 529 F.3d at 565.
In Taylor v. Kellogg Brown & Root Services, Inc., the Fourth Circuit formulated a test for considering whether litigation involving the actions of certain types of government contractors is justiciable under the political question doctrine. See Taylor, 658 F.3d at 411. The court adapted the Supreme Court's analysis in Baker to a particular subset of lawsuits, namely, those brought against government contractors who perform services for the military. See In re KBR, Inc., 744 F.3d 326, 334 (4th Cir. 2014) (observing that Taylor " adapted Baker to the government contractor context through a new two-factor test" ). Taylor involved a soldier who was performing work on an electrical box at a military base in Iraq when he was electrocuted after an employee of a government contractor activated a nearby generator despite an instruction from ...