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Shimari v. Caci Premier Tech., Inc.

United States District Court, E.D. Virginia, Alexandria Division

June 28, 2017

SUHAIL NAJIM ABDULLAH AL SHIMARI, Plaintiffs,
v.
CACI PREMIER TECH., INC., Defendant.

          MEMORANDUM OPINION

          LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE.

         The issue before the Court is the legal standard under which plaintiffs' claims under the Alien Tort Statue ("ATS"), 28 U.S.C. § 1350, will be analyzed for purposes of determining whether the Court has subject matter jurisdiction over those claims. At the instruction of the Court [Dkt. No. 571], both parties have submitted briefs explaining their views regarding the appropriate legal framework. [Dkt. Nos. 576 and 577]. This Memorandum Opinion addresses 1) whether claims of torture; cruel, inhuman, and degrading treatment ("CIDT"); and war crimes are actionable under the ATS; 2) if so, the applicable sources of law for defining the prohibitions; and 3) whether such claims are actionable against private parties.

         I. BACKGROUND

         Plaintiffs Suhail Al Shimari, Salah Al-Ejaili, and Asa'ad Al-Zuba'e (collectively "plaintiffs"), [1] all Iraqi nationals, were detained in the custody of the U.S. Army at Abu Ghraib prison in Iraq in 2003 and 2004. In 2008, they brought a civil action under the ATS[2] against CACI Premier Technology, Inc. ("CACI" or "defendant"), which provided interrogation services for the U.S. military at Abu Ghraib at the time of the relevant events. Plaintiffs allege that defendant violated the law of nations by committing acts involving torture, CIDT, and war crimes. Third Am. Compl. [Dkt. No. 251].

         This civil action has been before the Fourth Circuit four times, most recently after plaintiffs' Third Amended Complaint was dismissed on the grounds that it presented a non-justiciable political question. The district court had reasoned that according to the chain of command "the military exercised 'plenary' and 'direct' control over how Defendants interrogated detainees at Abu Ghraib" and that "[t]o consider Plaintiffs' claims would require the Court to impose state tort duties onto an active war zone, raising a broad array of interferences by the judiciary into the military functions textually committed by our Constitution to Congress, the President, and the Executive Branch." Al Shimari v. CACI Premier Tech., Inc., 119 F.Supp.3d 434, 444-47 (E.D. Va. 2015) (internal quotation marks omitted) (emphasis in original). On appeal, the Fourth Circuit found that the district court erred by focusing on formal control and "failing to determine whether the military exercised actual control over any of CACI's alleged conduct" and explained that "irrespective [of] whether that conduct occurred under the actual control of the military, " "conduct by CACI employees that was unlawful when committed is justiciable." Al Shimari v. CACI Premier Tech., Inc. (Al Shimari IV). 840 F.3d 147, 151 (4th Cir. 2016). In keeping with this principle, the acts committed by CACI "are shielded from judicial review under the political question doctrine" only if they "were not unlawful when committed and occurred under the actual control of the military or involved sensitive military judgments." Id.

         Accordingly, the Fourth Circuit vacated the district court's judgment and remanded the case with the explanation that

on remand, the district court will be required to determine which of the alleged acts, or constellations of alleged acts, violated settled international law and criminal law governing CACFs conduct and, therefore, are subject to judicial review. The district court will also be required to identify any 'grey area' conduct that was committed under the actual control of the military or involved sensitive military judgments and, thus, is protected under the political question doctrine.

Id. at 160. To the extent that the alleged conduct was lawful, CACI will be shielded from judicial review under the political question doctrine if the lawful action occurred under the "actual control of the military." Id. at 157 (emphasis in original).

         Following remand, the district court judge previously assigned to the case recused himself and the case was reassigned to this Court. After briefing by both parties as to how the case should proceed, the Court held a status conference where it observed that the threshold issue was whether the Court had subject matter jurisdiction and, per the Fourth Circuit's opinion in Al Shimari IV, to resolve that question it would need to determine whether the alleged CACI conduct was unlawful when committed. Dec. 16, 2016 Tr., [Dkt. No. 573]. To begin addressing this question, the Court ordered the parties to "submit briefs addressing the applicable legal standard under the Alien Tort Statute." [Dkt. No. 571] at l.[3] Both parties have done so and this Memorandum Opinion sets forth the legal standard under which this litigation will proceed.

         II. DISCUSSION

         Passed by the First Congress as part of the Judiciary Act of 1789, the ATS grants federal courts original jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350; Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004). The Supreme Court has construed the ATS as "a jurisdictional statute" that "creat[es] no new causes of action." Sosa, 542 U.S. at 724. Rather, the statute was "enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time, " which included "violation of safe conducts, infringement of the rights of ambassadors, and piracy." Id. Because the ATS was rooted in common law, "the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations." Id.

         Although federal courts have the power to recognize causes of action beyond the three enumerated above, the Supreme Court has cautioned that there are "good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind." Id. at 692. These reasons include the shift in the prevailing conception of the common law, which is no longer understood as something that is "found or discovered" but instead "made or created;" the watershed decision in Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), denying the existence of any federal "general" common law; and the recent reluctance of courts to infer an intent to create a private right of action where Congress has not expressly created one. See Sosa, 542 U.S. at 725-27. Beyond these broader trends, the Supreme Court has recognized that "the potential implications for the foreign relations of the United States of recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs, " especially when courts have "no congressional mandate to seek out and define new and debatable violations of the law of nations." Id. at 727-28. But, subject to these cautionary principles, "the door is still ajar subject to vigilant door keeping, and thus open to a narrow class of international norms today." Id. at 729.

         Pursuant to the Supreme Court's guidance in Sosa. courts are to "require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms [the Supreme Court has] recognized." Id. at 732. Such "[a]ctionable violations of international law must be of a norm that is specific, universal, and obligatory." Id. (quoting In re Estate of Marcos Human Rights Litigation. 25 F.3d 1467, 1475 (9th Cir. 1994)). To determine the content of an international norm, courts should look first to whether Congress has defined the relevant international legal norm, in which case federal courts must apply the statutory standard. In re XE Servs. Alien Tort Litig., 665 F.Supp.2d 569, 582 (E.D. Va. 2009). Where Congress has been silent, "U.S. courts must define the applicable legal norms independently of the determinations of international tribunals and foreign bodies, but they may accord those determinations an appropriate level of 'respectful consideration.'" Id. (quoting Sanchez-Llamas v. Oregon, 548 U.S. 331, 333 (2006)). In addition to scrutinizing the nature of the violation, courts also exercise "an element of judgment about the practical consequences of making that cause available to litigants in the federal courts." Sosa, 542 U.S. at 732-33.

         Against this backdrop, the question before the Court is whether torture, CIDT, and war crimes constitute ...


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