[author: Louis M. Solomon]

Suhail Najim Abdullah Al Shimari, et al. v. CACI Int’l, No. 09-1335 (4th Cir. 2011), addresses the issue of “derivative sovereign immunity”, which deserves another look.  According to the allegations, four Iraqi citizens were seized by the U.S. military in the Iraq war zone and detained by the military in Iraq.   They allege that, while detained, the contractor’s employees and military personnel conspired among themselves and with others to torture and abuse them and to cover up that conduct.  The District Court  denied the contractor’s motion, concluding:   ”Plaintiffs’ claims are justiciable because civil tort claims against private actors for damages do not interfere with the separation of powers” and that plaintiffs’ claims “are not preempted by the combatant activities exception at this stage because discovery is required to determine whether the interrogations here constitute ‘combatant activities’ within the meaning of the exception”.

The Fourth Circuit reversed.  Based on the “uniquely federal interests involved in this case”, the Court of Appeals concluded that the tort claims are “preempted and displaced under the reasoning articulated in Boyle v. United Technologies Corp., 487 U.S. 500 (1988)”.  The Fourth Circuit therefore reached the same conclusion as did the Court of Appeals for the District of Columbia in Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009).  The Fourth Circuit’s reasoning included that protecting the uniquely federal interests implicated by the federal government’s procurement from civilian contractors.  Boyle involved a government design of equipment.    The current dispute does not.  Nonetheless, the Court of Appeals believed that “potential liability under state law of military contractors for actions taken in connection with U.S. military operations overseas would similarly affect the availability and costs of using contract workers in conjunction with military operations”. 

Circuit Judge Niemeyer filed a separate opinion concurring in the result but adding that the claims should also have been barred by the political question doctrine. 

Circuit Judge King dissented, believing that the Court lacked subject matter jurisdiction but, on the merits, disagreeing that claims of torture by a military contractor are preempted.