Al Shimari v. CACI Premier Tech., Inc.

684 F.Supp.3d 481

Suhail Najim Abdullah AL SHIMARI, et al., Plaintiffs, v. CACI PREMIER TECHNOLOGY, INC., Defendant.

1:08-cv-827 (LMB/JFA)

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

Signed July 31, 2023

George Brent Mickum, IV, Law Firm of George Brent Mickum IV, Bethesda, MD, Cary Citronberg, John Kenneth Zwerling, Zwerling/Citronberg PLLC, Alexandria, VA, Muhammad Usman Faridi, Pro Hac Vice, Patterson Belknap Webb & Tyler LLP, New York, NY, for Plaintiffs Suhail Najim Abdullah Al Shimari, Salah Hasan Nusaif Jasim Al-EjailiToggle, Asa'ad Hamza Hanfoosh Al-Zuba'e.

John F. O'Connor, Jr., Steptoe & Johnson LLP, Washington, DC, William David Dolan, III, William D. Dolan, III, PC, Tysons Corner, VA, for Defendants CACI Premier Technology, Inc.

Daniel Duane Mauler, Washington, DC, Lauren A. Wetzler, R. Trent McCotter, United States Attorney's Office, Alexandria, VA, for Defendants United States of America.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge

On remand following the Supreme Court's denial of defendant CACI Premier Technology, Inc.'s ("CACI") petition for a writ of certiorari, CACI has filed two Motions to Dismiss for Lack of Subject Matter Jurisdiction [Dkt. Nos. 1331, 1367] arguing that intervening Supreme Court decisions require the Court to revisit its prior decisions finding subject matter jurisdiction over this civil action, which was brought by plaintiffs Suhail Najim Abdullah Al Shimari ("Al Shimari"), Asa'ad Hamza Hanfoosh Al-Zuba'e ("Al-Zuba'e"), and Salah Hasan Nusaif Jasim Al-Ejaili ("Al-Ejaili") (collectively, "plaintiffs") under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, based on physical and psychological abuse that they allegedly suffered while they were detained by the United States military at Abu Ghraib prison in Iraq.

CACI's first motion contends that pursuant to Nestlé USA, Inc. v. Doe, 593 U.S. 628, 141 S. Ct. 1931, 210 L.Ed.2d 207 (2021), this civil action involves an impermissible extraterritorial application of the ATS. [Dkt. No. 1331]. In its second motion, CACI asserts that Egbert v. Boule, 596 U.S. 482, 142 S. Ct. 1793, 213 L.Ed.2d 54 (2022), Torres v. Texas Department of Public Safety, 597 U.S. 580, 142 S. Ct. 2455, 213 L.Ed.2d 808 (2022), and Biden v. Texas, 597 U.S. 785, 142 S. Ct. 2528, 213 L.Ed.2d 956 (2022), preclude recognizing a cause of action arising out of the United States' prosecution of war. [Dkt. No. 1367]. For the reasons that follow, both Motions to Dismiss for Lack of Subject Matter Jurisdiction will be denied.

I. BACKGROUND

Since this litigation began in 2008, there have been multiple rounds of motions to dismiss, appeals, and ensuing remands. Because the procedural history and background of this civil action has been described extensively in prior opinions of this Court and the United States Court of Appeals for the Fourth Circuit,¹ it will not be repeated here unless relevant to resolving the pending jurisdictional motions.

In this civil action, plaintiffs bring claims under the ATS, which provides that the "district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations[.]" 28 U.S.C. § 1350. Specifically, plaintiffs allege that employees of CACI, an American corporation with its headquarters in the Eastern District of Virginia, conspired with and aided and abetted United States military personnel in subjecting plaintiffs to torture; cruel, inhuman, or degrading treatment ("CIDT"); and war crimes, all in violation of international law, while plaintiffs were detained by the United States military at Abu Ghraib prison in Iraq from late 2003 to 2004. At that time, Iraq was under the control of the Coalition Provisional Authority, a temporary governing body that was created in the early days of the United States-led occupation of Iraq by the Commander of Coalition Forces, who was a United States Army General.² See Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 524 n.4 (4th Cir. 2014). The Coalition Provisional Authority was governed by an administrator appointed by the United States President and the United States Secretary of Defense. See United States ex rel. DRC, Inc. v. Custer Battles, LLC, 562 F.3d 295, 298 (4th Cir. 2009).

CACI contracted to provide interrogation services to the United States Army under two delivery orders issued and administered by the Department of the Interior pursuant to a General Services Administration schedule contract, and in September 2003, CACI interrogators began arriving in Iraq. [Dkt. No. 968] ¶¶ 25-27. Plaintiffs have testified that they were subjected to abuse at Abu Ghraib, including violent beatings, stress positions, sleep and sensory deprivation, exposure to extreme temperatures, forcible removal of clothing and forced nudity, sexual assault, humiliation, electric shocks, and threats from dogs and firearms. See Al Shimari v. CACI Premier Tech., Inc., 324 F. Supp. 3d 668, 677-82 (E.D. Va. 2018). Department of Defense investigators later concluded that CACI interrogators and United States military personnel had abused detainees at Abu Ghraib,³ and evidence in the record links CACI interrogators—namely Steven Stefanowicz ("Stefanowicz"), Doug Johnson ("Johnson"), and Timothy Duggan ("Duggan")—to abuse of detainees, [redacted].⁴

The operative Third Amended Complaint ("Complaint") was filed in March 2013 and initially contained direct liability, conspiracy, and aiding and abetting claims for torture, CIDT, and war crimes against CACI.⁵ [Dkt. Nos. 251, 254]. CACI moved to dismiss the Third Amended Complaint on several grounds. On August 25, 2013, relying on the extraterritorial jurisprudence set out in Kiobel v. Royal Dutch Petroleum Company, 569 U.S. 108, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), the district judge then-assigned to this civil action dismissed plaintiffs' ATS claims for lack of jurisdiction "because the acts giving rise to their tort claims occurred exclusively in Iraq, a foreign sovereign." Al Shimari v. CACI Int'l Inc., 951 F. Supp. 2d 857, 858 (E.D. Va. 2013).

The Fourth Circuit vacated that decision, holding that under the standard set forth in Kiobel, plaintiffs' claims "touch[ed] and concem[ed] the territory of the United States with sufficient force to displace the presumption against extraterritorial application" of the ATS because of:

(1) CACI's status as a United States corporation; (2) the United States citizenship of CACI's employees, upon whose conduct the ATS claims are based; (3) the facts in the record showing that CACI's contract to perform interrogation services in Iraq was issued in the United States by the United States Department of the Interior, and that the contract required CACI's employees to obtain security clearances from the United States Department of Defense; (4) the allegations that CACI's managers in the United States gave tacit approval to the acts of torture committed by CACI employees at the Abu Ghraib prison, attempted to "cover up" the misconduct, and "implicitly, if not expressly, encouraged" it; and (5) the expressed intent of Congress, through enactment of the TVPA [Torture Victim Protection Act] and 18 U.S.C. § 2340A, to provide aliens access to United States courts and to hold citizens of the United States accountable for acts of torture committed abroad.

Al Shimari v. CACI Premier Tech., Inc. (Al Shimari III), 758 F.3d 516, 530-31 (4th

Cir. 2014). The Fourth Circuit remanded the civil action for further proceedings, after which the parties litigated jurisdictional issues relating to the political question doctrine. See Al Shimari v. CACI Premier Tech., Inc. (Al Shimari IV), 840 F.3d 147 (4th Cir. 2016). This civil action was subsequently reassigned to the undersigned judge.

On remand, this Court held that torture, CIDT, and war crimes constitute violations of international-law norms that are actionable under the ATS, relying on the Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). See Al Shimari v. CACI Premier Tech., Inc., 263 F. Supp. 3d 595 (E.D. Va. 2017). In Sosa, a Mexican national sued a group of Mexican nationals, who allegedly had been hired by the United States Drug Enforcement Agency, for abducting him from his house in Mexico, detaining him overnight, and bringing him by private plane to Texas where he was arrested by federal officers. 542 U.S. at 698, 124 S.Ct. 2739. After considering the history and scope of the ATS, the Supreme Court held that the statute was enacted "to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations." Id. at 720, 124 S.Ct. 2739. Although Sosa cautioned that federal courts must consider "the practical consequences" of making a private cause of action available to litigants under the ATS, it affirmed the power of federal courts to recognize a cause of action for violations of the "present-day law of nations" that "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" recognized by the Supreme Court, i.e., "violation of safe conducts, infringement of the rights of ambassadors, and piracy," or, in other words, a violation of a norm that is "specific, universal, and obligatory." Id. at 724-25, 732-33, 124 S.Ct. 2739. Based on Sosa, this Court found that torture, CIDT, and war crimes constitute violations of "specific, universal, and obligatory" norms and defined the sources of law underlying those norms. See Al Shimari, 263 F. Supp. 3d 595.

The Court subsequently directed CACI to file its Rule 12 motions in response to the Complaint, and after reviewing the parties briefing on CACI's motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim, the Court found that the Complaint sufficiently described "serious misconduct to constitute torture, CIDT, and war crimes,...