Shimari v. CACI Int'l, Inc.

679 F.3d 205

Suhail Najim Abdullah AL SHIMARI; Taha Yaseen Arraq Rashid; Sa'ad Hamza Hantoosh Al–Zuba'e; Salah Hasan Nusaif Jasim Al–Ejaili, Plaintiffs–Appellees,

v.CACI INTERNATIONAL, INCORPORATED; CACI Premier Technology, Incorporated, Defendants–Appellants.

Kellogg Brown & Root Services, Incorporated, Amicus Supporting Appellants,

Professors of Civil Procedure and Federal Courts, Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law, Eric M. Freedman, Maurice A. Deane, Distinguished Professor of Constitutional Law, Hofstra University School of Law, Jennifer M. Green, Director, Human Rights Litigation and International Advocacy Clinic, University of Minnesota Law School, Jonathan Hafetz, Associate Professor of Law, Seton Hall University School of Law, Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University School of Law, Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship, American University Washington College of Law; Retired Military Officers; Earthrights International; International Human Rights Organizations and Experts, Human Rights First, The Center for Victims of Torture, The International Commission of Jurists, The Working Group Established by the Commission on Human Rights on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self–Determination, Human Rights Watch, Ilias Bantekas, John Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller, Michael Newton, Marco Sassoli, Gary Solis, Scott M. Sullivan, Dr. Anicee Van Engeland, Amici Supporting Appellees,

United States of America, Amicus Curiae.

Wissam Abdullateff Sa'eed Al–Quraishi, Plaintiff–Appellee,

L–3 Services, Incorporated, Defendant–Appellant,

and

Adel Nakhla; CACI International, Incorporated; CACI Premier Technology, Incorporated, Defendants.

Professors of Civil Procedure and Federal Courts, Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law, Eric M. Freedman, Maurice A. Deane, Distinguished Professor of Constitutional Law, Hofstra University School of Law, Jennifer M. Green, Director, Human Rights Litigation and International Advocacy Clinic, University of Minnesota Law School, Jonathan Hafetz, Associate Professor of Law, Seton Hall University School of Law, Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University School of Law, Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship, American University Washington College of Law; Retired Military Officers; Earthrights International; International Human Rights Organizations and Experts, Human Rights First, The Center for Victims of Torture, The International Commission of Jurists, The Working Group Established by the Commission on Human Rights on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self–Determination, Human Rights Watch, Ilias Bantekas, John Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller, Michael Newton, Marco Sassoli, Gary Solis, Scott M. Sullivan, Dr. Anicee Van Engeland, Amici Supporting Appellee,

United States of America, Amicus Curiae.

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.

Professors of Civil Procedure and Federal Courts, Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law, Eric M. Freedman, Maurice A. Deane, Distinguished Professor of Constitutional Law, Hofstra University School of Law, Jennifer M. Green, Director, Human Rights Litigation and International Advocacy Clinic, University of Minnesota Law School, Jonathan Hafetz, Associate Professor of Law, Seton Hall University School of Law, Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University School of Law, Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship, American University Washington College of Law; Retired Military Officers; Earthrights International; International Human Rights Organizations and Experts, Human Rights First, The Center for Victims of Torture, The International Commission of Jurists, The Working Group Established by the Commission on Human Rights on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self–Determination, Human Rights Watch, Ilias Bantekas, John Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller, Michael Newton, Marco Sassoli, Gary Solis, Scott M. Sullivan, Dr. Anicee Van Engeland, Amici Supporting Appellee,

United States of America, Amicus Curiae.

Nos. 09–1335, 10–1891, 10–1921.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 27, 2012.

Decided: May 11, 2012.

ARGUED:Joseph William Koegel, Jr., Steptoe & Johnson, LLP, Washington, D.C.; Ari S. Zymelman, Williams & Connolly, LLP, Washington, D.C., for Appellants. Baher Azmy, Center for Constitutional Rights, New York, New York; Susan L. Burke, Burke PLLC, Washington, D.C., for Appellees. H. Thomas Byron, III, United States Department of Justice, Washington, D.C., for Amicus Curiae. ON BRIEF:John F. O'Connor, Steptoe & Johnson, LLP, Washington, D.C., for Appellants CACI International, Incorporated and CACI Premier Technology, Incorporated. Eric R. Delinsky, Zuckerman Spaeder LLP, Washington, D.C.; F. Whitten Peters, F. Greg Bowman, Williams & Connolly, LLP, Washington, D.C., for Appellants L–3 Services, Incorporated and Adel Nakhla. Susan M. Sajadi, Burke PLLC, Washington, D.C.; Katherine Gallagher, J. Wells Dixon, Center for Constitutional Rights, New York, New York; Joseph F. Rice, Motley Rice LLC, Mt. Pleasant, South Carolina; Shereef Hadi Akeel, Akeel & Valentine, PC, Troy, Michigan, for Appellees. Raymond B. Biagini, Lawrence S. Ebner, McKenna Long & Aldridge LLP, Washington, D.C., for Kellogg Brown & Root Services, Incorporated, Amicus Supporting Appellants CACI International, Incorporated, and CACI Premier Technology, Incorporated; Joshua S. Devore, Agnieszka M. Fryszman, Maureen E. McOwen, Cohen Milstein Sellers & Toll PLLC, Washington, D.C., for Professors of Civil Procedure and Federal Courts, Amici Supporting Appellees. Jennifer B. Condon, Seton Hall University School of Law, Center for Social Justice, Newark, New Jersey; John J. Gibbons, Lawrence S. Lustberg, Jonathan M. Manes, Gibbons P.C., Newark, New Jersey, for Retired Military Officers, Amici Supporting Appellees. Gabor Rona, Melina Milazzo, Human Rights First, New York, New York; Robert P. LoBue, Ella Campi, Richard Kim, Elizabeth Shofner, Patterson Belknap Webb & Tyler LLP, New York, New York, for International Human Rights Organizations and Experts, Amici Supporting Appellees. Marco Simons, Richard Herz, Marissa Vahlsing, Jonathan Kaufman, Earthrights International, Washington, D.C., for Earthrights International, Amicus Supporting Appellees. Tony West, Assistant Attorney General, Michael S. Raab, United States Department of Justice, Washington, D.C., for Amicus Curiae.

Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, DIAZ, and FLOYD, Circuit Judges.

Appeals dismissed by published opinion. Judge KING wrote the opinion, in which Chief Judge TRAXLER and Judges MOTZ, GREGORY, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, DIAZ, and FLOYD joined. Judge DUNCAN wrote a concurring opinion, in which Judge AGEE joined. Judge WYNN wrote a concurring opinion. Judge WILKINSON wrote a dissenting opinion, in which Judge NIEMEYER and Judge SHEDD joined.

Judge NIEMEYER wrote a dissenting opinion, in which Judge WILKINSON and Judge SHEDD joined.

OPINION

KING, Circuit Judge:

Following the 2003 invasion of Iraq, the United States military took control of Abu Ghraib prison near Baghdad, using it to detain criminals, enemies of the provisional government, and other persons thought to possess information regarding the anti-Coalition insurgency. The United States contracted with CACI International, Incorporated (with CACI Premier Technology, Incorporated, together referred to herein as “CACI”), and Titan Corporation, now L–3 Services, Incorporated (“L–3”), to provide civilian employees to assist the military in communicating with and interrogating this latter group of detainees.

On June 30, 2008, a number of Iraqis who had been detained at Abu Ghraib and elsewhere filed lawsuits against CACI and L–3 in the Southern District of Ohio and the District of Maryland, alleging that the contractors and certain of their employees were liable in common law tort and under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, for torturing and abusing them during their incarceration. Following the unopposed transfer of the Ohio action to the Eastern District of Virginia, where CACI is headquartered, Suhail Najim Abdullah Al Shimari and three co-plaintiffs submitted an Amended Complaint asserting that CACI, through its employees, agents, and government coconspirators, deprived them of basic human necessities, beat them and ran electric current through their bodies, subjected them to sexual abuse and humiliation, and traumatized them with mock executions and other sadistic acts. In the operative Second Amended Complaint filed in the companion litigation, seventy-two plaintiffs, headed by Wissam Abdullateff Sa'eed Al–Quraishi, detailed similar allegations against L–3 and Adel Nakhla, an L–3 employee residing in Maryland.¹

I.

A.

On September 15, 2008, CACI moved to dismiss the Amended Complaint filed in the Eastern District of Virginia, maintaining generally that, among other things: (1) the dispute presented a nonjusticiable political question; (2) the inevitable...