Suhail Najim Abdullah Al Shimari v. Caci Int'l, Inc.

951 F.Supp.2d 857

Suhail Najim Abdullah AL SHIMARI, et al., Plaintiffs,

v.CACI INTERNATIONAL, INC., et al., Defendants.

Case No. 1:08–cv–827 (GBL/JFA).

United States District Court,

E.D. Virginia,

Alexandria Division.

June 25, 2013.

George Brent Mickum, IV, Keller & Heckman LLP, Washington, DC, for Plaintiffs.

Joseph William Koegel, Jr., Steptoe & Johnson, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

GERALD BRUCE LEE, District Judge.

THIS MATTER is before the Court on Defendant CACI Premier Technology, Inc.'s (“CACI PT”) Motion for Reconsideration,or in the alternative Motion to Dismiss Plaintiffs' Alien Tort Statute Claims (Doc. 354), and Motion to Dismiss Plaintiffs' Third Amended Complaint for Failure to State a Claim (Doc. 363). This case concerns the civil tort claims of four Iraqi citizens alleging that CACI PT, a United States military government contractor, abused and tortured them during their detention in Abu Ghraib, Iraq. Plaintiffs bring their claims under common law and international law, the latter by virtue of the Alien Tort Statute (“ATS”). There are three issues before the Court.

The first issue is whether the Court has subject matter jurisdiction, by operation of the ATS, over Plaintiffs' claims of violations of international law against CACI PT for torture, war crimes, and inhuman treatment resulting from injuries occurring in Abu Ghraib. In light of the United States Supreme Court's decision in Kiobel v. Royal Dutch Petroleum, ––– U.S. ––––, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), the Court holds that it lacks ATS jurisdiction over Plaintiffs' claims because the acts giving rise to their tort claims occurred exclusively in Iraq, a foreign sovereign. As the Court held in Kiobel, the presumption against extraterritorial application applies to the ATS. Here, because Plaintiffs complain of injuries sustained on foreign soil, the Court cannot apply the ATS extraterritorially to extend jurisdiction over Plaintiffs' claims. Kiobel precludes such a result. Therefore, Plaintiffs' claims under the ATS are dismissed for want of jurisdiction.

The second issue is whether the Court will apply Ohio, Virginia, or Iraqi law to Plaintiff Al Shimari's common law claims where Al Shimari filed suit in Ohio against a Virginia corporation for acts and injuries occurring in Iraq during a multinational occupation of Iraq. The Court holds that Iraqi law governs Al Shimari's common law claims. The Court invokes Ohio's choice-of-law analysis, as Al Shimari's claims were originally filed in Ohio and are thus governed by Ohio law. Ohio applies the law of the place of injury unless certain factors demonstrate that another state holds a more significant relationship to the claims. Here, Iraq is the place of injury, and neither Virginia nor Ohio holds a more significant relationship to Al Shimari's injuries. Therefore, the Court applies Iraqi law when evaluating Al Shimari's common law claims.

The third issue is whether the Court should grant CACI PT's Motion to Dismiss for failure to state a claim under Iraqi law where Al Shimari presents various common law claims for actions occurring in Iraq, which was governed by laws promulgated by the Coalition Provisional Authority (“CPA”), during occupation by a multinational force. The Court holds that Al Shimari fails to state a claim under Iraqi law because the law governing Iraq at the time of injury precludes both liability under Iraqi law and the application of law from a jurisdiction within the United States to CACI PT's actions. The relevant regulations provided immunity from suit to contractors for activities related to the terms and conditions of their contracts. Furthermore, the regulations also provided that personal injury suits would be governed by the law of the state from which the contractor was sent only if the alleged injury was not connected to military combat operations. Here, CACI PT's actions-detention and interrogation-were all related to its contractual duties as a United States military contractor and connected to military combat operations in Iraq. Accordingly, Al Shimari's common law claims against CACI PT are dismissed.

I. BACKGROUND and PROCEDURAL HISTORY

The long and intricate history of this case bears little mention. The pendency of this litigation approaches its fifth anniversary, and its procedural posture results 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., 1:08–CV–00827, 933 F.Supp.2d 793, 2013 WL 1234177 (E.D.Va. Mar. 19, 2013); Al Shimari v. CACI Premier Tech., Inc., 657 F.Supp.2d 700 (E.D.Va.2009); Al Shimari v. CACI Int'l, 1:08–CV–00827, 2008 WL 7348184 (E.D.Va. Nov. 25, 2008). The case has also twice been before the United States Court of Appeals for the Fourth Circuit and remanded to this Court. See Al Shimari v. CACI Int'l, Inc., 658 F.3d 413 (4th Cir.2011), vacated,679 F.3d 205 (4th Cir.2012) (en banc). For the sake of brevity and clarity, the Court will only recite the relevant factual background and procedural history necessary to resolve the present Motions.

Plaintiffs Suhail Najim Abdullah Al Shimari. Taha Yaseen Arraq Rashid, Asa'ad Hamza Hanfoosh Al–Zuba'e, and Salah Hasan Nsaif Jasim Al–Ejaili are Iraqi citizens. (3d Am. Compl. ¶¶ 4–7, Doc. 254.) Plaintiffs bring this action against CACI PT. alleging physical and mental injuries resulting from abuse and torture, including food deprivation, forced nudity, beatings, electric shocks, sensory deprivation, extreme temperatures, death threats, oxygen deprivation, sexual assaults, and mock executions. ( Id. ¶¶ 23–77.) Plaintiffs claim that all of the alleged acts occurred while being interrogated as suspected enemy combatants by CACI PT and the United States military at military detention centers within a complex located in Abu Ghraib, Iraq between September 22, 2003, and May 6, 2005, a period corresponding to the Abu Ghraib prison abuse scandal. ( Id. ¶¶ 24–77.) At various times between 2004 and 2008. all four Plaintiffs were released from custody without being charged with any crime. ( Id. ¶¶ 38, 58, 66, 77.)

On June 30, 2008, Plaintiff Al Shimari filed this action against CACI International, Inc. (“CACI, Inc.”), a Delaware corporation with its headquarters in Arlington, Virginia, and CACI PT. its wholly-owned subsidiary also located in Arlington. Virginia. ( See Doc. 2.) The remaining Plaintiffs joined the action on September 18, 2008. ( See Doc. 28.) Both CACI PT and CACI, Inc. are corporations that contractually provided interrogation services for the United States military at Abu Ghraib during the period in question. (3d Am. Compl. ¶¶ 10.14.) Specifically, beginning in September 2003, CACI PT provided civilian interrogators for the U.S. Army's military intelligence brigade assigned to the Abu Ghraib prison. ( Id. ¶¶ 14–16.) Plaintiffs seek to impose liability in common law tort and under international customary law, asserting jurisdiction under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1332 (diversity), 28 U.S.C. § 1350(ATS), and 28 U.S.C. § 1367 (supplemental jurisdiction). (Id. ¶ 2.) Plaintiffs–Third Amended Complaint alleges twenty (20) causes of action including torture: civil conspiracy to commit torture: aiding and abetting torture; cruel, inhuman, or degrading treatment; and war crimes. ( Id. ¶¶ 210–313.)

On March 18, 2009, the Court denied a motion to dismiss Plaintiffs' state law claims, rejecting the argument that such claims were preempted or that CACI PT and CACI, Inc. were entitled to some novel form of derivative sovereign immunity for their conduct. See Al Shimari, 657 F.Supp.2d at 731–32. The Court, however, declined to exercise jurisdiction over Plaintiffs' ATS claims, reasoning that, “tort claims against government contractor interrogators are too modern and too novel to satisfy the Sosa [ v. Alvarez–Machain ]requirements for ATS jurisdiction.” Id. The Court noted that Sosa v. Alvarez–Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), instructs federal courts to dismiss claims “for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted,” and to be cautious “when recognizing additional torts under the common law that enable ATS jurisdiction.” Al Shimari, 657 F.Supp.2d at 726–27 (quoting Sosa, 542 U.S. at 729, 124 S.Ct. 2739) (internal quotation marks omitted). The Court, however, did not address the question of whether war crimes; torture; and cruel, inhuman, and degrading treatment are sufficiently universal and obligatory international law norms to meet the Sosa standard. Instead, the Court reasoned that the status of CACI PT and CACI, Inc.—private contractors—impacted the analysis and ruled that claims against “government contractors under international law ... are fairly modem and therefore not sufficiently definite among the community of nations, as required under Sosa.” Id. at 726. The Court noted that, “the use of contractor interrogators is a recent practice,” and concluded that to extend ATS jurisdiction over claims brought against CACI PT and CACI, Inc. would be an imprudent exercise of “recognizing new torts.” Id. at 727–28.

On September 21, 2011. a divided Fourth Circuit panel reversed the ruling denying the motion to dismiss, reasoning that CACI PT and CACI, Inc. should be immune from liability by virtue of their integration into military combatant activities. Al Shimari, 658 F.3d at 420. On May 11, 2012. the Fourth Circuit sitting en banc vacated the panel decision, finding that the court lacked jurisdiction over CACI PT and CACI, Inc.'s appeal from this Court. Al Shimari, 679 F.3d at 224. On May 31.2012. CACI PT and CACI, Inc. moved to stay the Fourth Circuit's...