Al–quraishi v. L–3 Serv.

657 F.3d 201

Wissam Abdullateff Sa'eed AL–QURAISHI, Plaintiff–Appellee,

v.L–3 SERVICES, INCORPORATED, Defendant–Appellant,andAdel Nakhla; CACI International, Incorporated; CACI Premier Technology, Incorporated, Defendants.Earthrights International, Amicus Supporting Appellee.Wissam Abdullateff Sa'eed Al–Quraishi, Plaintiff–Appellee,

v.Adel Nakhla, Defendant–Appellant,andL–3 Services, Incorporated; CACI International, Incorporated; CACI Premier Technology, Incorporated, Defendants.

Nos. 10–1891

10–1921.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 26, 2010.Decided: Sept. 21, 2011.

ARGUED: Ari S. Zymelman, Williams & Connolly, LLP, Washington, D.C., for Appellants. Susan L. Burke, Burke PLLC, Washington, D.C., for Appellee. ON BRIEF: Eric Delinsky, Zuckerman Spaeder LLP, Washington, D.C.; F. Whitten Peters, F. Greg Bowman, Williams & Connolly, LLP, Washington, D.C., for Appellants. Shereef H. Akeel, Akeel & Valentine, PLC, Troy, Michigan; Joseph F. Rice, Frederick C. Baker, Rebecca M. Deupree, Meghan S.B. Oliver, Motley Rice LLC, Mt. Pleasant, South Carolina; Susan M. Sajadi, Katherine Hawkins, Burke O'Neil, LLC, Washington, D.C.; Katherine Gallagher, J. Wells Dixon, Center for Constitutional Rights, New York, New York, for Appellee. Richard Herz, Marco Simons, Jonathan Kaufman, Earthrights International, Washington, D.C., for Amicus Supporting Appellee.Before NIEMEYER, KING, and SHEDD, Circuit Judges.Reversed and remanded with instructions by published opinion. Judge NIEMEYER wrote the opinion, in which Judge SHEDD joined. Judge KING wrote a dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

Seventy-two Iraqis, who were seized in Iraq by the U.S. military and detained at various locations throughout Iraq, commenced this action against L–3 Services, Inc., a military contractor, and one of its employees, Adel Nakhla (collectively, “L–3 Services”). L–3 Services was retained by the military to provide translation services in connection with interrogations of persons detained at various detention sites in the Iraq war zone. The plaintiffs allege that L–3 Services' employees and military personnel conspired among themselves and with others to torture and abuse them while they were detained and to cover up that conduct.

The factual context alleged in the complaint is, for purposes of the issues before us, the same as stated in Al-Shimari v. CACI International, Inc., 658 F.3d 413 (4th Cir.2011), which we also decide today. There are, however, differences between the allegations in the two cases. The complaint here states that L–3 Services was hired by the military to provide translation services in connection with interrogations of Iraqi detainees. It alleges, “L–3 translators have admitted ... to participating in interrogations where detainees were hit, kept in stress positions until they collapsed, made to do push-ups until they collapsed, kept awake for long periods, exposed to extreme temperatures and choked by the throat.” J.A. 64. Moreover, the plaintiffs here were detained not only in Abu Ghraib prison but at over 20 different sites in Iraq, all staffed by L–3 Services employees.

L–3 Services filed a motion to dismiss the complaint on numerous grounds, including law of war immunity; the political question doctrine; federal preemption under Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), and Saleh v. Titan Corp., 580 F.3d 1 (D.C.Cir.2009); and derivative absolute immunity. The district court denied the contractor's motion, concluding, among other things, that this case was essentially a civil tort action against a non-governmental entity and “[i]n an ordinary tort suit against a nongovernmental entity, [t]he department to whom this issue has been constitutionally committed is none other than our own—the Judiciary, which strongly suggests that the political question doctrine does not apply” (internal quotation marks omitted). J.A. 852. The court also stated that “[t]he grant of immunity outlined in Boyle was limited to the principles underlying the ‘discretionary function’ exception to the [Federal Tort Claims Act]” and that Boyle did not “suggest that all of the [Federal Tort Claims Act] exceptions should be incorporated into government contractor immunity.” J.A. 874. Finally, it concluded that it was too early to dismiss the complaint on the basis of derivative absolute immunity because discovery might end up supporting the plaintiffs' position that “Defendants were not operating under the authority of the Government in committing the alleged acts of torture, but were instead acting of their own volition. If Defendants are found to have been acting outside the scope of their contracts and not on behalf of the sovereign when they committed the allegedly tortious acts, then they would not be entitled to derivative sovereign immunity.” J.A. 867. See Al–Quraishi v. Nakhla, 728 F.Supp.2d 702 (D.Md.2010).

On the contractor's appeal, we reverse and remand with instructions to dismiss this case for the reasons given in Al Shimari v. CACI International. We conclude that the plaintiffs' state law claims are preempted by federal law and displaced by it, as articulated in Saleh, 580 F.3d at 8–12.

As an additional issue in this case, the plaintiffs challenge our jurisdiction to decide these issues on L–3 Services' interlocutory appeal. They contend that all of the requirements for collateral order review have not been satisfied. See Will v. Hallock, 546 U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006). They assert that the district court's order denying L–3 Services' motion to dismiss based on immunity was tentative and incomplete, as the court deferred making a decision until the completion of discovery. They maintain further that any immunity would depend on a resolution on the merits of aspects of the case, especially whether L–3 Services complied with military instructions and commands.

L–3 Services responds by arguing that the plaintiffs' arguments overlook the fact that the district court's opinion included final determinations that “law of war immunity (i) does not apply to government contractors, (ii) does not apply to suits brought in U.S. courts, and (iii) does not extend to violations of the law of war.” Moreover, it argues, to deny immunity now would subject it to discovery and perhaps trial, against which immunity is designed to protect it. See McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1339 (11th Cir.2007). In addition, L–3 Services contends that the district court's order denying its motion to dismiss must be reviewed now “to avoid judicial interference with military discipline and sensitive military judgments” (quoting McMahon, 502 F.3d at 1339, 1340 n. 7). And with respect to its defenses based on separation of powers and nonjusticiability, it contends that to the extent that these defenses may not be characterized as immunity defenses, for which the Supreme Court has clearly authorized immediate appeal, the defenses are nonetheless inextricably intertwined with its immunity claims, giving us pendent appellate jurisdiction over those issues.See Jenkins v. Medford, 119 F.3d 1156, 1159 & n. 2 (4th Cir.1997).

As a baseline for our discussion, we recognize that jurisdiction of the courts of appeals extends, as a general matter, only to appeals from “ final decisions of the district courts of the United States.” 28 U.S.C. § 1291 (emphasis added); but see id. § 1292 (listing exceptions). This proscription, however, has long been construed to allow appeals from “orders other than final judgments when they have a final and irreparable effect on the rights of the parties.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). This construction of § 1291 is a “practical” one, recognizing that the “authority of the Courts of Appeals to review ‘all final decisions of the district courts' includes appellate jurisdiction over ‘a narrow class of decisions that do not terminate the litigation,’ but are sufficiently important and collateral to the merits that they should ‘nonetheless be treated as final.’ ” Will, 546 U.S. at 347, 126 S.Ct. 952 (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994)). Thus, under this collateral order doctrine, the courts of appeals have jurisdiction over an interlocutory appeal of an order that (1) conclusively determines a disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) would be effectively unreviewable on appeal from a final judgment. Will, 546 U.S. at 349, 126 S.Ct. 952.

The collateral order doctrine is intended to be modest in scope so as to prevent it from

overpower[ing] the substantial finality interests § 1291 is meant to further: judicial efficiency, for example, and the “sensible policy ‘of avoid [ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise.’ ”

Will, 546 U.S. at 350, 126 S.Ct. 952 (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981)). Thus, the power of courts of appeals does not extend to “appeals, even from fully consummated decisions, where they are but steps towards final judgment in which they will merge.” Cohen, 337 U.S. at 546, 69 S.Ct. 1221. Rather, appeals under the doctrine are generally confined to cases involving a “particular value of a high order,” including “honoring the separation of powers, preserving the efficiency of government and the initiative of its officials, [or] respecting a State's dignitary interests.” Will, 546 U.S. at 352, 126 S.Ct. 952; see also United States v. Myers, 593 F.3d 338 (4th Cir.2010).

The Supreme Court has recognized courts of appeals' jurisdiction under the collateral order doctrine in a...