Filed: May 14, 2012 

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-1335

(1:08-cv-00827-GBL-JFA)

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 
2

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 SelfDetermination, 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.

No. 10-1891

(8:08-cv-01696-PJM)

WISSAM ABDULLATEFF SA'EED AL-QURAISHI,

Plaintiff - Appellee,

v.

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 
3

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 SelfDetermination, 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.

No. 10-1921

(8:08-cv-01696-PJM)

WISSAM ABDULLATEFF SA'EED AL-QURAISHI,

Plaintiff - Appellee,

v.

ADEL NAKHLA,

Defendant – Appellant,

and

L-3 SERVICES, INCORPORATED; CACI INTERNATIONAL, 

INCORPORATED; CACI PREMIER TECHNOLOGY, INCORPORATED,

Defendants.
4

--------------------

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 SelfDetermination, 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.

O R D E R

The Court amends its opinion filed May 11, 2012, as 

follows:

On page 9, attorney information section, line 17, the 

names of “Raymond B. Biagini, Lawrence S. Ebner, MCKENNA LONG & 

ALDRIDGE LLP, Washington, D.C., for Kellogg Brown & Root 

Services, Incorporated, Amicus Supporting Appellants CACI 
5

International, Incorporated, and CACI Premier Technology, 

Incorporated” are added.

For the Court – By Direction

/s/ Patricia S. Connor

Clerk
ON REHEARING EN BANC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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.  No. 09-1335

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, 

2 AL SHIMARI v. CACI INTERNATIONAL
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 SelfDetermination, 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. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(1:08-cv-00827-GBL-JFA)

WISSAM ABDULLATEFF SA’EED AL- 

QURAISHI,

Plaintiff-Appellee,  No. 10-1891 L-3 SERVICES, INCORPORATED,

Defendant-Appellant,

and 

AL SHIMARI v. CACI INTERNATIONAL 3


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; 

4 AL SHIMARI v. CACI INTERNATIONAL
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. 

AL SHIMARI v. CACI INTERNATIONAL 5
WISSAM ABDULLATEFF SA’EED AL- 

QURAISHI,

Plaintiff-Appellee,

v.

ADEL NAKHLA,

Defendant-Appellant,

and

L-3 SERVICES, INCORPORATED; CACI

INTERNATIONAL, INCORPORATED;

CACI PREMIER TECHNOLOGY,

INCORPORATED,

Defendants.  No. 10-1921

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, 

6 AL SHIMARI v. CACI INTERNATIONAL
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 SelfDetermination, 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, 

AL SHIMARI v. CACI INTERNATIONAL 7
UNITED STATES OF AMERICA, 



Amicus Curiae. 

Appeals from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, Senior District Judge.

(8:08-cv-01696-PJM)

Argued: January 27, 2012

Decided: May 11, 2012

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.

COUNSEL

ARGUED: Joseph William Koegel, Jr., STEPTOE & JOHNSON, LLP, Washington, D.C.; Ari S. Zymelman, WILLIAMS

& CONNOLLY, LLP, Washington, D.C., for Appellants.

8 AL SHIMARI v. CACI INTERNATIONAL
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. 

AL SHIMARI v. CACI INTERNATIONAL 9
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

1CACI and L-3 were each initially named as defendants in both lawsuits. Within a couple of months following commencement of the litiga10 AL SHIMARI v. CACI INTERNATIONAL
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 application of the law of occupied Iraq rendered CACI,

as part of the occupying power, immune from suit under

Coleman v. Tennessee, 97 U.S. 509 (1878), and Dow v. Johnson, 100 U.S. 158 (1879); (3) the plaintiffs’ claims were preempted by the "combatant activities" exception to the Federal

Tort Claims Act (the "FTCA"), see 28 U.S.C. § 2680(j), discussed in Ibrahim v. Titan Corp., 556 F. Supp. 2d 1 (D.D.C.

2007), and subsequently adopted on appeal, see Saleh v. Titan

Corp., 580 F.3d 1 (D.C. Cir. 2009) (citing Boyle v. United

Tech. Corp., 487 U.S. 500 (1988)); and (4) the company was

entitled to absolute official immunity in accordance with

Mangold v. Analytic Services, Inc., 77 F.3d 1442 (4th Cir.

1996), because its employees had performed delegated governmental functions. With respect to the ATS claims, CACI

proffered several additional arguments, none of them relevant

here in light of the claims’ eventual dismissal. See infra at 12.

L-3’s motion to dismiss the Second Amended Complaint in

the Maryland action, filed on November 26, 2008, and in

which Nakhla joined, was predicated essentially along the

same lines as CACI’s, though it characterized Mangold as

involving the application of derivative sovereign immunity

instead of absolute official immunity. As CACI had prevition, however, CACI was voluntarily dismissed from the Maryland action

and the same was accomplished with respect to L-3 in the Virginia proceedings. See Fed. R. Civ. P. 41(a)(1)(A)(i). On March 9, 2009, the district

court in Maryland denied without prejudice L-3’s motion to transfer venue

of that case to the Eastern District of Virginia. 

AL SHIMARI v. CACI INTERNATIONAL 11
ously done, L-3 invoked the political question doctrine, cited

the Supreme Court’s decisions in Coleman and Dow (the

"law-of-war defense"), and requested (through supplemental

briefing) that the court adopt the combatant activities exception ultimately applied in Saleh ("Saleh preemption"). L-3

similarly advocated for dismissal of the ATS claims on substantially the same grounds identified by CACI.2

1.

On March 19, 2009, the district court in Virginia entered a

Memorandum Order dismissing the ATS claims against

CACI, but permitting the common-law tort claims to proceed.

See Al Shimari v. CACI Premier Tech., Inc., 657 F. Supp. 2d

700 (E.D. Va. 2009). In so ruling, the court acknowledged its

considerable reservations that the action implicated a political

question, in that CACI, a private entity, was not the United

States, and only low-level military and governmental personnel appeared to have been involved in the alleged mistreatment. See id. at 708-14. The court was similarly doubtful that

the foreseeable application of Iraqi law required dismissal in

light of CACI’s apparent status as an arms-length contractor,

"because even if the law of a foreign jurisdiction were to govern any of the Plaintiffs’ claims, it would not regulate the conduct of the United States, a non-party to this suit between

private parties." Id. at 725.

The dividing line between the bona fide military and its

civilian support personnel also fueled the district court’s

uncertainty that the latter could have engaged in wartime

activities as a "combatant" for purposes of adopting the D.C.

Circuit’s theory of FTCA preemption. See Al Shimari, 657 F.

2The Maryland district court denied L-3’s dismissal motion as to the

ATS claims. See infra at 15. L-3 maintains on appeal that this ruling was

in error, but it confines its argument to the identical grounds urged in support of its primary contention that the court below incorrectly declined to

dismiss the state-law tort claims. 

12 AL SHIMARI v. CACI INTERNATIONAL
Supp. 2d at 720-21. The court concluded that, in any event,

the plaintiffs’ allegations of torture at the hands of CACI

failed to implicate the uniquely federal interests or irreconcilable conflict with state law that animated the Supreme Court’s

decision in Boyle, on which Saleh relied. See id. at 722-25.

Regarding CACI’s claim of derivative immunity under

Mangold, the district court set forth its view that the validity

of such a claim depends on whether its proponent, in committing the act complained of, was "‘exercising discretion while

acting within the scope of their employment.’" Al Shimari,

657 F. Supp. 2d at 715 (emphasis omitted) (quoting Mangold,

77 F.3d at 1446). Citing "a very limited factual record," the

court expressed its skepticism that CACI had established at

the dismissal stage that its treatment of the plaintiffs at Abu

Ghraib involved the exercise of discretion. Id. The court

stated further that it was "completely bewildered" by the suggestion that it could accept CACI’s representations that the

company had performed within the scope of its agreement

with the government "when the contract is not before the

Court on this motion." Id. at 717. On March 23, 2009, CACI

noted its appeal (No. 09-1335) from the district court’s ruling.

2.

The assertion of Mangold immunity was viewed much the

same way by the district court in Maryland, which, in its

Opinion of July 29, 2010, concluded that, "relying on the

information in the [Second Amended] Complaint, it is clearly

too early to dismiss Defendants." Al-Quraishi v. Nakhla, 728

F. Supp. 2d 702, 735 (D. Md. 2010).3 The district court per-

(Text continued on page 15)

3

In Mangold, we reversed the district court’s denial of immunity to the

defendant government contractor and its employees in a lawsuit brought

by an Air Force officer and his wife for statements the contractor made to

military officials investigating the officer’s alleged misconduct. L-3 and

CACI have each relied heavily on Mangold for the proposition that our

decision in that case likewise entitles them to immunity for the tort claims

AL SHIMARI v. CACI INTERNATIONAL 13
asserted by the plaintiffs here. The Maryland district court, noting the

defendants’ additional reliance on Butters v. Vance International, Inc., 225

F.3d 462 (4th Cir. 2000), characterized the immunity claimed as being in

the nature of derivative sovereign immunity, which the court described as

"protect[ing] agents of the sovereign from liability for carrying out the

sovereign’s will." Al-Quraishi, 728 F. Supp. 2d at 736. The court distinguished Mangold, opining that the immunity discussed therein "was based

on a combination of derivative absolute official immunity and witness

immunity, doctrines that differ from derivative sovereign immunity." AlQuraishi, 728 F. Supp. 2d at 736. 

The distinction drawn by the district court finds support in the text of

Mangold, as expressed by our careful observation that the public policy

justifying the grant of absolute immunity to federal officials exercising

job-related discretion "provide[d] only a partial foundation for protecting"

the defendant contractor in that case. Mangold, 77 F.3d at 1448 (citing

Westfall v. Ervin, 484 U.S. 292, 300 (1988)). The remainder of that foundation was supplied by "the common law privilege to testify with absolute

immunity in courts of law, before grand juries, and before government

investigators." Id. at 1449. According to the Maryland district court, derivative absolute official immunity (invoked by CACI and more directly

addressed by the Virginia district court in Al Shimari) "ensures that discretionary governmental decision makers are able to efficiently exercise their

discretion in the best interests of the Government without ‘the potentially

debilitating distraction of defending private lawsuits.’" Id. (quoting Mangold, 77 F.3d at 1446). While Mangold immunity certainly has the effect

of removing the potential distraction of litigation, it is important to note

the narrow scope of the immunization actually authorized in that case,

which we applied "only insofar as necessary to shield statements and

information, whether truthful or not, given by a government contractor and

its employees in response to queries by government investigators engaged

in an official investigation." 77 F.3d at 1449. In light of our disposition of

these appeals, infra, we express no opinion as to the merits of any immunity asserted by the defendants in general, or as to the pertinence of our

Mangold precedent in particular, but instead leave those matters for the

district courts to consider in the first instance should they arise on remand.

The difference between derivative sovereign immunity and derivative

absolute official immunity (including any offshoots thereof) appears to be

a fine one that may depend on the degree of discretion afforded the contractor by the government, which, at this stage of the litigation, is not a

question capable of final resolution in either proceeding. Were that not the

14 AL SHIMARI v. CACI INTERNATIONAL
ceived no such record deficiencies concerning L-3’s and

Nakhla’s alternative bases for dismissal, however, deeming

the facts as pleaded sufficient to reject outright both defendants’ arguments. The court thus denied the motion to dismiss

with respect to all claims, including those premised on the

ATS. See id. at 724-33, 736-60. From the court’s accompanying Order, L-3 noted its appeal (No. 10-1891) on August 4,

2010, followed two days later by another appeal (No. 10-

1921) noted on behalf of Nakhla.

B.

The appeals in Al-Quraishi were consolidated and argued

in seriatim with the Al Shimari appeal before a panel of this

Court on October 26, 2010. Apart from urging our affirmance

on the merits, the plaintiffs in each matter alternatively maintained that we lacked appellate jurisdiction over the district

courts’ non-final orders denying the contractors’ respective

motions to dismiss. On September 21, 2011, we issued opinions in both cases, in which a majority of the panel concluded

that jurisdiction was proper in this Court, and that the district

courts had erred in permitting the claims against the contractors to proceed. See Al Shimari v. CACI Int’l, Inc., 658 F.3d

413 (4th Cir. 2011); Al-Quraishi v. L-3 Servs., Inc., 657 F.3d

case, the distinction could be crucial, in that fully developed rulings denying absolute official immunity are immediately appealable, while denials

based on sovereign immunity (or derivative claims thereof) may not be.

See Hous. Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc., 481 F.3d

265, 279 (5th Cir. 2007) (denial of derivative sovereign immunity not

appealable); Alaska v. United States, 64 F.3d 1352, 1356 (9th Cir. 1995)

(denial of sovereign immunity not appealable); Pullman Const. Indus.,

Inc. v. United States, 23 F.3d 1166, 1168 (7th Cir. 1994) (same). But see

In re World Trade Ctr. Disaster Site Litigation, 521 F.3d 169, 191 (2d Cir.

2008) (disagreeing with foregoing authorities). Although the degree to

which Mangold controls the specific assertions of immunity in these cases

is yet to be decided, we will, for simplicity’s sake, continue to refer to L3 and CACI as having asserted "Mangold immunity." 

AL SHIMARI v. CACI INTERNATIONAL 15
201 (4th Cir. 2011).4 Consistently therewith, we entered separate judgments reversing the orders on appeal and remanding

with instructions to dismiss both proceedings.

On November 8, 2011, upon the timely petitions of the

plaintiffs, see Fed. R. App. P. 35(b)-(c), we entered an Order

granting en banc rehearing of all three appeals, thereby vacating our prior judgments. The appeals were thereafter consolidated for purposes of oral argument, which was conducted

before the en banc Court on January 27, 2012.5 Having fully

considered the briefs and arguments of the parties, together

with the written and oral submissions of the amici curiae permitted leave to participate, we conclude that we lack jurisdiction over these interlocutory appeals, and we therefore

dismiss them.6

II.

A.

Except for the limited categories of interlocutory orders set

forth at 28 U.S.C. § 1292, federal appellate jurisdiction is

4We released both of our panel opinions on September 21, 2011, following the Supreme Court’s denial of certiorari in Saleh on June 27, 2011.

We had previously, on March 11, 2011, placed these appeals in abeyance

pending resolution of the Saleh certiorari petition. 

5At our invitation, the Department of Justice, on behalf of the United

States, submitted an amicus brief and participated in oral argument.

Therein, the government took the position that we were without jurisdiction to decide these appeals. Just prior to argument, we granted the defendants leave to submit supplemental briefs in response to the government’s

amicus submission, after which the plaintiffs moved to tender their own

supplemental briefs. We grant the plaintiffs’ motions and accept their supplemental replies for consideration. 

6The arguments and contentions before us in these appeals, though not

identically presented or emphasized, are nonetheless substantially similar

enough that we are content to continue the appeals’ consolidation for purposes of decision. Hereinafter, we shall refer to L-3 and Nakhla together

as "L-3," and both of them collectively with CACI as the "appellants." 

16 AL SHIMARI v. CACI INTERNATIONAL
reserved for "final decisions of the district courts of the

United States." 28 U.S.C. § 1291. It is undisputed that the

decisions underlying these putative appeals are interlocutory,

at least in the procedural sense, in that no final order or judgment has been entered by either district court. It is also without contest that neither order has been certified appealable by

the issuing court pursuant to 28 U.S.C. § 1292(b), and that

none of that statute’s provisions otherwise apply to confer

jurisdiction on this Court.

Consequently, the only way we may be entitled to review

the orders on appeal is if they are among "that small class [of

decisions] which finally determine claims of right separable

from, and collateral to, rights asserted in the action, too

important to be denied review and too independent of the

cause itself to require that appellate consideration be deferred

until the whole case is adjudicated." Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949). Expounding on

the topic, the Supreme Court has emphasized that an appealable Cohen order must "[1] conclusively determine the disputed question, [2] resolve an important issue completely

separate from the merits of the action, and [3] be effectively

unreviewable on appeal from a final judgment." Will v. Hallock, 546 U.S. 345, 349 (2006) (alterations in original) (internal quotation marks omitted). 

Cohen involved a stockholder’s derivative action for mismanagement and fraud, in which the Supreme Court reviewed

the district court’s threshold decision declining to enforce a

state law requiring plaintiffs in such cases to post security

ensuring payment of attorney fees in the event the defendant

corporation prevailed. Deeming the appeal properly taken, the

Court declared no exception to the jurisdictional prerequisites

of 28 U.S.C. § 1291, but instead described what would subsequently be coined the "collateral order doctrine," MacAlister

v. Guterma, 263 F.2d 65, 67 (2d Cir. 1958), as a "practical,

rather than a technical construction" of the statute. Cohen, 337

U.S. at 546.

AL SHIMARI v. CACI INTERNATIONAL 17
The federal courts of appeals have consistently been

charged with keeping a tight rein on the types of orders suitable for appeal consistent with Cohen. We are therefore

bound to maintain "a healthy respect for the virtues of the

final-judgment rule." Mohawk Indus., Inc. v. Carpenter, 130

S. Ct. 599, 605 (2009); see also Will, 546 U.S. at 350 ("[W]e

have not mentioned applying the collateral order doctrine

recently without emphasizing its modest scope.").7

The Supreme Court’s concern, as expressed through its

repeated admonitions, is amply justified. The appellate courts

are, by design, of limited jurisdiction; thus, accepting prejudgment appeals as a matter of course would "undermine[ ] efficient judicial administration and encroach[ ] upon the

prerogatives of district court judges, who play a special role

in managing ongoing litigation." Mohawk, 130 S. Ct. at 605

(internal quotation marks omitted). In addition, routine interlocutory review would unacceptably subject meritorious lawsuits to "the harassment and cost of a succession of separate

appeals from the various rulings to which a litigation may

give rise, from its initiation to entry of judgment." Firestone

Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)

(internal quotation marks omitted).

Moreover, there is no need to construe Cohen broadly

given the existence of a suitable alternative. The "safety

valve" of discretionary interlocutory review under 28 U.S.C.

7This "modest scope" is apparent from the short list of orders approved

by the Supreme Court for immediate review under Cohen. See Osborn v.

Haley, 549 U.S. 225, 238-39 (2007) (denial of substitution of United

States under Westfall Act); P.R. Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 506 U.S. 139, 144-45 (1993) (denial to state of claimed Eleventh Amendment immunity); Harlow v. Fitzgerald, 457 U.S. 800, 817-18

(1982) (denial of qualified immunity from suit pursuant to 42 U.S.C.

§ 1983); Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982) (denial to president of absolute immunity); Helstoski v. Meanor, 442 U.S. 500, 508

(1979) (denial of Speech and Debate Clause immunity); Abney v. United

States, 431 U.S. 651, 660 (1977) (denial of double jeopardy bar). 

18 AL SHIMARI v. CACI INTERNATIONAL
§ 1292(b) is frequently a "better vehicle for vindicating [certain] serious . . . claims than the blunt, categorical instrument

of [a] § 1291 collateral order appeal." Digital Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 883 (1994). Accordingly,

the collateral order doctrine should "never be allowed to swallow the general rule that a party is entitled to a single appeal,

to be deferred until final judgment has been entered." Id. at

868 (citation omitted).

B.

Although a properly appealable collateral order under

Cohen must of course satisfy all of the Will requirements, its

hallmark is the encapsulation of a right whose abridgement is

"effectively unreviewable" should appellate review await final

judgment. See Henry v. Lake Charles Am. Press LLC, 566

F.3d 164, 177 (5th Cir. 2009) (describing unreviewability as

"the fundamental characteristic of the collateral order doctrine" (citation omitted)). The "critical question" in determining whether the right at issue is effectively unreviewable in

the normal course "is whether the essence of the claimed right

is a right not to stand trial" — that is, whether it constitutes

an immunity from suit. Van Cauwenberghe v. Biard, 486 U.S.

517, 524 (1988) (internal quotation marks omitted). Absent an

immediate appellate review of the denial of an immunity

claim, the right not to stand trial "would be irretrievably lost."

Id. (internal quotation marks omitted). By contrast, if the right

at issue is one "not to be subject to a binding judgment of the

court" — that is, a defense to liability — then the right can

be vindicated just as readily on appeal from the final judgment, and the collateral order doctrine does not apply. Id. at

527.

In assessing whether the right sought to be protected constitutes a true immunity and not merely a defense, "§ 1291

requires [the court] of appeals to view claims of a ‘right not

to be tried’ with skepticism, if not a jaundiced eye." Digital

Equip., 511 U.S. at 873. As the Supreme Court has cautioned,

AL SHIMARI v. CACI INTERNATIONAL 19
"[o]ne must be careful . . . not to play word games with the

concept of a ‘right not to be tried,’" Midland Asphalt Corp.

v. United States, 489 U.S. 794, 801 (1989), as "virtually every

right that could be enforced appropriately by pretrial dismissal

might loosely be described as conferring a right not to stand

trial," Digital Equip., 511 U.S. at 873. It is within the foregoing framework that we review de novo the appealability of the

district courts’ denial orders. See Mitchell v. Forsyth, 472

U.S. 511, 528-30 (1985) (equating denials of qualified immunity to collateral denials of other asserted immunities or of

double jeopardy invocations, and deeming de novo standard

proper based on non-deferential review of latter claims).

III.

In Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir.

2007), the District of Columbia Circuit confronted an

attempted appeal from the district court’s interlocutory order

refusing to dismiss an action brought by Indonesian villagers

alleging serious injuries visited upon them by members of that

nation’s military in the defendants’ private employ. According to the defendants, the dispute presented a nonjusticiable

political question. The court of appeals declined to address the

merits of the issue, noting the absence of "a single case in

which a federal appeals court held that denial of a motion to

dismiss on political question grounds is an immediately

appealable collateral order." Id. at 352.8

8The D.C. Circuit was presented in Doe with the same argument the

appellants make here: that the denial of a dismissal motion premised on

the separation of powers doctrine is an appealable collateral order under

Cohen because immediate review "is necessary to protect the executive

branch from judicial intrusion into sensitive foreign policy matters" that

could not be remedied on appeal from a final judgment. 473 F.3d at 351.

The Doe court squarely rejected that mistaken notion, however, explaining

that although the Supreme Court has "identif[ied] ‘honoring the separation

of powers’ as a value that could support a party’s interest in avoiding trial,

[the Court has] only d[one] so while discussing cases involving immunity." Id.

20 AL SHIMARI v. CACI INTERNATIONAL
That case yet appears to be lacking, and the appellants do

not contend to the contrary. L-3, however, ventures that an

appellate court may determine whether an action is a political

question or otherwise nonjusticiable when it has proper jurisdiction over a different issue pursuant to Cohen or § 1292(b),

if consideration of the former is "necessary to ensure meaningful review." Swint v. Chambers Cnty. Comm’n, 514 U.S.

35, 51 (1991). We may also exercise so-called "pendent"

appellate jurisdiction in circumstances where the question is

"inextricably intertwined" with another that may be immediately reviewed. Id.; see Rux v. Republic of Sudan, 461 F.3d

461, 476 (4th Cir. 2006).

L-3’s argument necessarily supposes the existence of an

otherwise valid jurisdictional basis for its appeal. Absent an

independently reviewable issue with which the political question doctrine may be inexorably bound, or one that cannot be

reviewed in a meaningful fashion without addressing the justiciability of the underlying dispute, we are without authority

to make any pronouncement on that aspect of the appellants’

defense. We therefore withhold for the moment substantive

comment on the political question doctrine, at least until we

evaluate whether the law-of-war defense, Saleh preemption,

or Mangold immunity provides the jurisdictional green light

for us to proceed.

A.

The appellants characterize their former presence in Iraq as

"occupying forces" (L-3) or "occupying personnel" (CACI)

that are answerable "only to their country’s criminal laws,"

Opening Br. of CACI at 25, and thus "not subject to civil suits

by the occupied," Opening Br. of L-3 at 22-23. In that regard,

the appellants equate their situation with those of the Civil

War soldiers in Coleman v. Tennessee, 97 U.S. 509 (1878),

and Dow v. Johnson, 100 U.S. 158, 166 (1879), who sought

relief from judgments entered against them for their wartime

acts. The defendant in Coleman had been convicted and senAL SHIMARI v. CACI INTERNATIONAL 21
tenced to death by a Tennessee state court for murdering a

civilian, though the same judgment and sentence had been

previously imposed as the result of a United States Army

court-martial. Dow, by contrast, involved a challenge to a

civil judgment entered in Louisiana against a Union general

after forces under his command had seized the plaintiff’s private property in furtherance of the war effort.

Neither judgment was permitted to stand. In both cases, the

Supreme Court considered the states of the Confederacy to

have been "the enemy’s country," to whose tribunals the

"[o]fficers and soldiers of the armies of the Union were not

subject." Coleman, 97 U.S. at 515. The Court expressed its

bewilderment that a contrary result could obtain "from the

very nature of war," concluding that "the tribunals of the

enemy must be without jurisdiction to sit in judgment upon

the military conduct of the officers and soldiers of the invading army. It is difficult to reason upon a proposition so manifest; its correctness is evident upon its bare announcement."

Dow, 100 U.S. at 165.

Some differences between the disputes at bar and those

underlying Coleman and Dow are readily evident. Most

salient is that the civilian employees of CACI and L-3

assigned to Abu Ghraib were not soldiers. The idea that those

employees should nonetheless be treated like full-fledged

members of the military pervades this litigation, though the

concept resonates with more force as to some of the appellants’ other defenses, particularly Saleh preemption and Mangold immunity. But cf. Ford v. Surget, 97 U.S. 594, 601-02

(1878) (relieving Mississippi civilian from liability for burning landowner’s cotton where destruction ordered by Confederate army in face of Union advance and those "commands

would have been undoubtedly enforced by the same means of

coercion as if he had been an enlisted soldier"). The potential

liability of government contractors was front and center in

both Saleh and Mangold, and if the legal principles in either

case (or both) are deemed apposite to the dispute at bar, there

22 AL SHIMARI v. CACI INTERNATIONAL
is little question that the appellants, as contractors themselves,

may avail themselves of them. 

Another distinction is that the appellants attempt to invoke

the law-of-war defense exclusively on the assertion that their

alleged wrongs will be evaluated under Iraqi law, and not the

laws of Virginia, Maryland, or another state. If true, that may

or may not be enough to bring Coleman and Dow into play,

inasmuch as the overriding concern in those cases appears to

have been less about the application of the criminal law of

Tennessee or of Louisiana tort law (there being no suggestion

that either differed significantly from the analogous law

applied by the defendants’ states of citizenry), and more about

the jurisdiction of the "foreign" courts. See Coleman, 97 U.S.

at 516 (musing that "there would be something incongruous

and absurd in permitting an officer or soldier of an invading

army to be tried by his enemy"); Dow, 100 U.S. at 163 (identifying "[t]he important question" for resolution as whether

nation’s military could be held liable "in the local tribunals").

Here, of course, the appellants are being sued on their home

turf, in courts that are indisputably domestic.

Even assuming that the facts before us can be viewed in

such a fashion to permit Coleman and Dow to apply, there is

no indication from the opinions in those cases that the

Supreme Court intended to construe the law-of-war defense as

an immunity from suit, rather than merely an insulation from

liability. See Dow, 100 U.S. at 165 (characterizing dispute as

concerning personal jurisdiction); Lauro Lines s.r.l. v.

Chasser, 490 U.S. 495, 500 (1989) ("[W]e have declined to

hold the collateral order doctrine applicable where a district

court has denied a claim . . . that the suit against the defendant

is not properly before the . . . court because it lacks jurisdiction."). In its subsequent Ford opinion, with judgment having

been entered against the defendant on a jury verdict, the Court

in no way indicated that trial should not have been had.

Indeed, it seems a bit curious to imagine the nineteenth

century Court regarding its decisions in the Civil War cases

AL SHIMARI v. CACI INTERNATIONAL 23
as having durable precedential effect; the appeals afforded an

unusual opportunity for substantive domestic review of what

were, in effect, foreign pronouncements of judgment. But to

the extent that Coleman and Dow possess continued relevance

beyond their immediate context, it is nonetheless clear that the

issues presented in those cases were effectively reviewed and

disposed of on appeal, and, as such, the manner in which the

Supreme Court chose to resolve them fails to compel the conclusion that immunity must be accorded all prospective defendants who insist they are similarly situated. The law-of-war

defense thus provides no basis for an interlocutory appeal in

this case.

B.

In a like fashion, Saleh preemption falls squarely on the

side of being a defense to liability and not an immunity from

suit. Immunity, according to the Supreme Court, derives from

"an explicit statutory or constitutional guarantee that trial will

not occur." Midland Asphalt Corp. v. United States, 489 U.S.

794, 801 (1989) (emphasis added).9 There is no contention

that the Supreme Court in Boyle v. United Technologies

Corp., 487 U.S. 500 (1988), from which Saleh preemption is

derived, relied on any such explicit guarantee embodied in

9The Supreme Court has properly dismissed the mistaken notion that

Midland Asphalt’s "explicit . . . guarantee" requirement is in tension with

the immediate appealability of an order denying qualified immunity, an

inherently equivocal term that appears to connote only an implicit guarantee against the burdens of trial. Any tension can only be characterized as

chimerical, however, in light of qualified immunity’s "good pedigree in

public law," which more than makes up for its implicitness. Digital

Equip., 511 U.S. at 875. The argument that an immunity need not be

explicit in order for jurisdiction to lie under the collateral order doctrine

"only leaves [the proponent of jurisdiction] with the unenviable task of

explaining why other rights that might fairly be said to include an

(implicit) ‘right not to stand trial’ aspect are less in need of protection by

immediate review, or more readily vindicated on appeal from final judgment, than" the right the proponent asserts is an implicit right to be free

from suit. Id. at 875-76. 

24 AL SHIMARI v. CACI INTERNATIONAL
statute or in the Constitution. Boyle preemption (and, thus,

Saleh preemption) is, ipso facto, not immunity. 

We are not the first court to arrive at this ineluctable conclusion. In Martin v. Halliburton, 618 F.3d 476, 487 (5th Cir.

2010), the Fifth Circuit similarly reckoned that "the combatant activities exception is not subject to a sui generis exemption from the ordinary jurisdictional requirements for denials

of preemption claims."10 Indeed, the Boyle Court itself repeatedly framed the preemption it recognized as creating a mere

defense to liability. See, e.g., 487 U.S. at 507 ("The imposition of liability on Government contractors [in the military

procurement context] will directly affect the terms of Government contracts."); id. at 511-12 ("The financial burden of

judgments against the contractors would ultimately be passed

through . . . to the United States itself."); id. at 512 ("[S]tate

law which holds Government contractors liable for design

defects in military equipment does in some circumstances

present a ‘significant conflict’ with federal policy and must be

displaced."). 

It is tempting, we suppose, to blur the line between an

eventual frustration of liability and the more immediate right

to avoid suit altogether. One might be persuaded to consider

the words "preemption" and "immunity" as mere labels that

are more or less synonymous with each other, or to presume

that the former can effectively operate as the latter. But

10See also Rodriguez v. Lockheed Martin Corp., 627 F.3d 1259 (9th Cir.

2010), in which the court addressed its jurisdiction over an interlocutory

appeal premised on the discretionary functions exception to the FTCA.

According to the Rodriguez court, because the right recognized by Boyle

was merely a "defense to judgment" — and not, like qualified immunity,

a "right not to be required to go to trial" — nothing is irretrievably lost

by the lack of an immediate appeal from an adverse pretrial ruling. Rodriguez, 627 F.3d at 1266. The Ninth Circuit emphasized that Boyle did not

devise a new species of immunity, but merely recognized that "‘whether

the facts establish the conditions for the [government contractor] defense

is a question for the jury.’" Id. at 1265 (quoting Boyle, 487 U.S. at 514).

AL SHIMARI v. CACI INTERNATIONAL 25
merely repackaging for the sake of convenience the preemption defense derived from Boyle as "combatant activities

immunity," as our good colleague Judge Niemeyer does in

speaking for the dissenters, post at 97, is patently incorrect. 

Though Boyle preemption, like sovereign immunity, may

be invoked to bar state law claims, the encapsulated rights

serve distinct purposes. State law claims are preempted under

Boyle simply because the imposition of liability in such situations is irreconcilable with uniquely federal interests. The

right conferred through federal preemption, in other words, is

the right not to be bound by a judgment stemming from state

law duties. 

In stark contrast, immunity has consistently been administered as a protection against the burden of litigation altogether. See Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985).

Further, as the court of appeals explained in Rodriguez v.

Lockheed Martin Corp., 627 F.3d 1259, 1265 (9th Cir. 2010),

"[a]lthough the source of the government contractor defense

[recognized in Boyle] is the United States’ sovereign immunity," the preemption defense is not itself a species thereof.

To the contrary, entitlement to preemption "is only a corollary

financial benefit flowing from the government’s sovereign

immunity." Id. Accordingly, Boyle’s "government contractor

defense does not confer sovereign immunity on contractors,"

and as such, the denial of the defense is not immediately

appealable. Id. (internal quotation marks omitted).

Importantly, the law requires that we assess the appealability of a potentially qualifying collateral order in a categorical sense, and not on a case-by-case basis.11 Conducting that

11Whether to recognize an order as collateral is not "an individualized

jurisdictional inquiry," but rather is based "on the entire category to which

a claim belongs." Mohawk, 130 S. Ct. at 605. Consequently, "we do not

now in each individual case engage in ad hoc balancing to decide issues

of appealability." Johnson v. Jones, 515 U.S. 304, 315 (1995). It follows

26 AL SHIMARI v. CACI INTERNATIONAL
assessment here leads to the conclusion that the denial of a

preemption claim stemming from the combatant activities

exception would not necessarily entail significant scrutiny of

sensitive military issues. Fundamentally, there is little intrusion because the court’s inquiry focuses on whether the contractor complied with the government’s specifications and

instructions, and not the wisdom or correctness thereof. The

Boyle and Saleh decisions themselves well illustrate the lack

of intrusion that would result from deferring review until after

entry of a final judgment. Boyle, for example, involved an

appeal from a jury verdict for the plaintiff, while "the two

appeals in Saleh reached the D.C. Circuit using the normal

machinery of §§ 1291 and 1292(b)." Martin, 618 F.3d at 488.12

Moreover, the district court in Saleh had conducted extensive discovery "regarding the military’s supervision of the

that "the issue of appealability under § 1291 is to be determined . . . without regard to the chance that the litigation at hand might be speeded, or

a particular justice averted, by a prompt appellate court decision." Digital

Equip., 511 U.S. at 868. Although the presence of a "substantial public

interest," or "some particular value of a high order," is a necessary prerequisite to a collateral order appeal, Will, 546 U.S. at 352-53, the identification of such a public interest is not the end of the inquiry. As the Supreme

Court explained in Mohawk, "[t]he crucial question . . . is not whether an

interest is important in the abstract; it is whether deferring review until

final judgment so imperils the interest as to justify the cost of allowing

immediate appeal of the entire class of relevant orders." 130 S. Ct. at 606.

12It is of no moment that the plaintiffs have alleged a conspiracy among

the contractors, their employees, and certain military personnel. The conspiracy allegation does not transform this civil action into a challenge to

the government’s policy or interests, or into an attempt to hold its contractors liable for acting in accord with governmental decisions. Just as in

Saleh, where some of the plaintiffs alleged a similar conspiracy, "there is

no allegation, and no evidence, that" the "low-level soldiers" alleged to be

acting in conspiracy with contractor personnel "had any control, de jure

or de facto, over the" contractor personnel. 580 F.3d at 20 (Garland, J.,

dissenting). As such, these proceedings — like Saleh — constitute direct

challenges only to "the unlawful and unauthorized actions of private contractors," id., based on the pleadings and record to date. 

AL SHIMARI v. CACI INTERNATIONAL 27
contract employees as well as the degree to which such

employees were integrated into the military chain of command," 580 F.3d at 4, with no ill effects. The Fifth Circuit,

while acknowledging that Boyle preemption is underpinned

by "a respect for the interests of the Government in military

matters," has nonetheless reasoned that those interests can be

safeguarded without resort to interlocutory review. Martin,

618 F.3d at 488. For example, a district court "should take

care to develop and resolve such defenses at an early stage

while avoiding, to the extent possible, any interference with

military prerogatives." Id. Additionally, a trial court should

consider "limiting discovery initially to such defenses" and

"certifying orders denying [the] defense[ ] where the law is

unsettled but, after refinement on appeal, might warrant dismissing plaintiffs’ claims." Id.13

When properly conducted, suits against private contractors

pose minimal risk that military personnel will be improperly

haled into court or their depositions taken, because "[w]here

discovery would hamper the military’s mission, district courts

can and must delay it." Saleh, 580 F.3d at 29 (Garland, J., dissenting) (citing, inter alia, Watts v. SEC, 482 F.3d 501, 508-09

(D.C. Cir. 2007)). Other procedural and substantive rules,

such as Rule 45 of the Federal Rules of Civil Procedure and

the state secrets doctrine, also adequately safeguard military

interests. See id. at 29 n.18 (Garland, J., dissenting). Accordingly, we decline to recognize denials of Saleh preemption as

a new class of collateral order.14 Insofar as it would be

13The government’s amicus submission agrees, observing that concerns

over postponing review "can and should be addressed by careful limitation

and close supervision of any necessary discovery by the district courts,

and by the use of existing mechanisms for interlocutory appellate review,

including certification under 28 U.S.C. § 1292(b)." Br. for the United

States as Amicus Curiae at 4. 

14And, indeed, it remains to be seen whether we will adopt the substantive concept of "battlefield preemption" espoused by the Saleh majority.

For the purposes of our decision today, however, we assume but do not

decide that such a defense may be available to the appellants. 

28 AL SHIMARI v. CACI INTERNATIONAL
founded on the false premise that immediate appeals are necessary in preemption cases to protect the government’s legitimate military interests, such recognition would reflect an

impermissibly indulgent view of appellate jurisdiction.

C.

Before jurisdiction can be invoked under the collateral

order doctrine, a district court must issue a "fully consummated decision" that constitutes "a complete, formal, and . . .

final" resolution of the issue. Abney v. United States, 431 U.S.

651, 659 (1977). In other words, the court’s ruling must be

"the final word on the subject addressed." Digital Equip., 511

U.S. at 867. If a ruling lacks finality, the threshold requirement for collateral order review — that the question in dispute

be definitively resolved — is likewise left wanting. See Will

v. Hallock, 546 U.S. 345, 349 (2006) (confining review of

non-final orders to disputed questions conclusively determined, which raise important non-merits issues that are effectively unreviewable if not immediately appealed).

A question in dispute cannot be said to have been conclusively resolved if a district court "ma[kes] clear that its decision [is] a tentative one, . . . and that it might well change its

mind" after further proceedings. Jamison v. Wiley, 14 F.3d

222, 230 (4th Cir. 1994). Disputed questions that arise with

respect to claims of immunity are not the exception to that

ironclad rule. Fundamentally, a court is entitled to have before

it a proper record, sufficiently developed through discovery

proceedings, to accurately assess any claim, including one of

immunity. And even a party whose assertion of immunity ultimately proves worthy must submit to the burdens of litigation

until a court becomes sufficiently informed to rule.

Manifestly, with respect to the appellants’ attempts to

invoke Mangold immunity in their respective actions, sufficient information was lacking. The Maryland and Virginia

district courts each perceived that the validity of such invocaAL SHIMARI v. CACI INTERNATIONAL 29
tions depended in significant part on whether the contractor

involved was acting within the scope of its agreement with the

United States. One could hardly begin to answer that question

without resort to any and all contracts between the appellants

and the government pertinent to the claims, defenses, and

related matters below. See, e.g., Al-Quraishi v. Nakhla, 728 F.

Supp. 2d 702, 741 n.11 (D. Md. 2010) (reasoning that contract could show, for example, that "‘federal wartime policymaking’ was not behind Defendants’ alleged actions," in

which case plaintiffs’ "state law claims [would] not intrude

upon the preempted field"). While other evidence and testimony could also be relevant to ascertain the appellants’ business relationship with the government in general, and the

parties’ agreed duties and responsibilities in Iraq and at Abu

Ghraib in particular, the analysis must necessarily begin with

the written contract or contracts. Cf. Harris v. Kellogg Brown

& Root Servs., Inc., 618 F.3d 398, 402 (3d Cir. 2010) (rejecting appellate jurisdiction for failure of Will’s "conclusively

determined" requirement, where only limited discovery had

been conducted on combatant activities and political question

defenses).15

In dissent, Judge Niemeyer contends that Behrens v. Pelletier, 516 U.S. 299 (1996), and Ashcroft v. Iqbal, 556 U.S. 662

(2009), each a qualified immunity proceeding, provide for

collateral order jurisdiction of the district courts’ orders denying Mangold immunity, as illustrated by other of our qualified

immunity cases. See post at 88-89, 90-91 (citing McVey v.

Stacy, 157 F.3d 271 (4th Cir. 1998); Jenkins v. Medford, 119

15As the Virginia district court pointed out, the contracts "will shed

much light on the responsibilities, limitations and expectations that [the

appellants] were bound to honor as government contractors. In addition,

consideration of [their] course of dealing with the government may reveal

whether deviations from the contract occurred and, if so, whether they

were tolerated or ratified." Al Shimari v. CACI Premier Tech., Inc., 657

F. Supp. 2d 700, 717 (E.D. Va. 2009). Of course, the district court can

receive this evidence under seal, or otherwise, if the circumstances so warrant. 

30 AL SHIMARI v. CACI INTERNATIONAL
F.3d 1156 (4th Cir. 1997) (en banc); Winfield v. Bass, 106

F.3d 525 (4th Cir. 1997) (en banc)). According to Judge Niemeyer, Behrens and Iqbal counsel that Rule 12 denials of

immunity invariably constitute final decisions appealable

under § 1291, and those authorities "clearly establish that

these appeals fit comfortably with the Cohen collateral order

doctrine." Post at 80-81.

It is more accurate to say that orders denying dismissal

motions, insofar as those motions are based on immunities

that are not absolute but conditioned on context, such as qualified immunity in a § 1983 action or the derivative immunities

at issue here, are, in accordance with Behrens and Iqbal,

sometimes immediately appealable. Winfield makes the point:

[W]e possess no jurisdiction over a claim that a

plaintiff has not presented enough evidence to prove

that the plaintiff’s version of the events actually

occurred, but we have jurisdiction over a claim that

there was no violation of clearly established law

accepting the facts as the district court viewed them.

106 F.3d at 530. More generally, we would have jurisdiction

over an appeal like the ones attempted here "if it challenge[d]

the materiality of factual issues." Bazan ex rel. Bazan v.

Hidalgo Cnty., 246 F.3d 481, 490 (5th Cir. 2001). By contrast, we lack jurisdiction if such an appeal "challenges the

district court’s genuineness ruling — that genuine issues exist

concerning material facts." Id. Of course, "[w]e always have

jurisdiction to determine whether the facts relevant to our

jurisdiction exist." Wireko v. Reno, 211 F.3d 833, 835 (4th

Cir. 2000) (citation omitted).

In Iqbal, the Supreme Court framed the genuinenessmateriality distinction as one between "fact-based" or "abstract" issues of law, with only the latter supplying a proper

foundation for immediate appeal. 556 U.S. at 674 (quoting

Johnson v. Jones, 515 U.S. 304, 317 (1995)). The Iqbal Court

AL SHIMARI v. CACI INTERNATIONAL 31
concluded that whether a particular constitutional right was

clearly established for qualified immunity purposes presents

an abstract issue of law that permits an appeal at the dismissal

stage. See id. at 674-75. Here, as in Iqbal, there is no "vast

pretrial record" to encumber our decisionmaking, id. at 674,

but the issues before us are more factually entrenched and far

less amenable to meaningful analysis by resort merely to the

plaintiffs’ pleadings. Thus, unlike Iqbal, these appeals encompass fact-based issues of law, with the need for additional

development of the record being among those "matters more

within a district court’s ken." Id.

Hence, insofar as an interlocutory appeal of a denial of

immunity requires resolution of a purely legal question (such

as whether an alleged constitutional violation was of clearly

established law), or an ostensibly fact-bound issue that may

be resolved as a matter of law (such as whether facts that are

undisputed or viewed in a particular light are material to the

immunity calculus), we may consider and rule upon it. See

Behrens, 516 U.S. at 313 (deeming appellate jurisdiction to

have been properly asserted over denial of summary judgment

in § 1983 action where adverse ruling was premised on defendant’s alleged conduct having violated clearly established

law); McVey, 157 F.3d at 276 (approving jurisdiction over

similar legal issue at dismissal stage, where appeal did not

"raise factual questions concerning the defendants’ involvement, which would not be appealable").16

Behrens, then, confers jurisdiction of these appeals only if

the record at the dismissal stage can be construed to present

a pure issue of law. We might discern such an issue if we

16See also Jenkins, 119 F.3d at 1159-60 (noting existence of appellate

jurisdiction over denial of qualified immunity on motion to dismiss, based

in part on defendant’s assertion that alleged violation did not implicate

clearly established constitutional right); Winfield, 106 F.3d at 530 (recognizing jurisdiction over appeal of denial of qualified immunity insofar as

district court ruled on summary judgment that asserted legal right was

clearly established). 

32 AL SHIMARI v. CACI INTERNATIONAL
were of the opinion, as the dissenters evidently are, that persons similarly situated to the appellants are inevitably and

invariably immune from suit premised on any and all conduct

occurring (1) when they are in a war zone, by virtue of (2) a

contract with the government. But not even Saleh, which

receives a ringing endorsement in both dissents, went that far.

The court in Saleh adopted the following rule: "During

wartime, where a private service contractor is integrated into

combatant activities over which the military retains command

authority, a tort claim arising out of the contractor’s engagement in such activities shall be preempted." 580 F. 3d at 9.

The D.C. Circuit therefore conditions preemption on the presence of a certain level of public/private integration, the conduct of activities that may be classified as combat, and the

military’s retained prerogative concerning the decisionmaking

process. Though the Saleh court had the luxury of a complete

record developed through discovery to assist it in pondering

those issues, there has been no discovery in the cases at bar,

and the pleadings provide nothing approaching definitive

answers.17

17Judge Wilkinson, on behalf of our dissenting friends, assumes as fact

that the contractors were "integrated into wartime combatant activities

under control of the U.S. military," post at 41, notwithstanding that there

is no record evidence to support that assumption, or even what "integration" means in the context of war. Judge Wilkinson appears to equate integration with the plaintiffs’ assertion of a conspiracy. See post at 41-42

(citing conspiracy allegations of Amended Complaint in Al Shimari in

support of notion "that the contractors here were acting in collaboration

with U.S. military personnel"); see also supra note 12. But there is simply

no reason to believe that the integration of separate entities into a more or

less unified whole is necessarily the legal equivalent of a collaboration or

conspiracy between those entities. 

It is also far from clear that, with respect to the torture and abuses

alleged by the plaintiffs, the appellants were "acting under U.S. military

authority," post at 47, as presumed by Judge Wilkinson. If one felt constrained to form a conclusion on the authorization question based on the

available record, then one would be better served to reference the pertinent

AL SHIMARI v. CACI INTERNATIONAL 33
Indeed, the questions that will require proper answers in

order to gauge the appellants’ entitlement to immunity have

yet to be fully ascertained. In Mangold v. Analytic Services,

Inc., supra note 3, the relevant issues on appeal from summary judgment included whether government personnel were

conducting an "official investigation," and whether the contractors’ statements giving rise to potential liability were

responsive to the investigators’ queries, as opposed to being

extraneous thereto. See Mangold v. Analytic Services, Inc., 77

F.3d at 1449-50. Subsequently, in Butters v. Vance International, Inc., supra note 3, also a summary judgment appeal,

we were constrained to decide whether withholding a job promotion from the plaintiff was a "commercial activity," and

whether that employment decision was made by the defendant

or the foreign government with which it had contracted. See

Butters v. Vance International, Inc., 225 F.3d at 465-67. As

with Mangold and Butters, this case too requires careful analysis of intrinsically fact-bound issues, which may resemble

any or all of the Saleh considerations, and will almost certainly entail an exploration of the appellants’ duties under

their contracts with the government and whether they

exceeded the legitimate scope thereof.

The appellants are requesting immunity in a context that

has been heretofore unexplored. These are not disputes in

which facts that might be material to the ultimate issue have

been conclusively identified. Moreover, those facts that may

have been tentatively designated as outcome-determinative

are yet subject to genuine dispute, that is, a reasonable factfinder could conclude in favor of either the plaintiffs or the

allegations of the plaintiffs that, for example, "CACI knew that the United

States government has denounced the use of torture and other cruel, inhuman, or degrading treatment," Al Shimari Amended Complaint at ¶ 95; "L3 permitted [its] translators to ignore — repeatedly — the military’s

instructions to abide by the Geneva Conventions," Al-Quraishi Second

Amended Complaint at ¶ 430; and "L-3 affirmatively hid the misconduct

of its employees from the United States military," id. at ¶ 433. 

34 AL SHIMARI v. CACI INTERNATIONAL
defendants. See Metric/Kvaerner Fayetteville v. Fed. Ins. Co.,

403 F.3d 188, 197 (4th Cir. 2005). Because the courts’ immunity rulings below turn on genuineness, we lack jurisdiction

to consider them on an interlocutory appeal. See Winfield, 106

F.3d at 530; Bazan, 246 F.3d at 490.18

Thus, although Mangold immunity confers upon those

within its aegis the right not to stand trial, the appellants have

yet to establish their entitlement to it. See Martin, 618 F.3d at

483 (concluding that claims of immunity must be "substantial," and not "merely colorable"). Because these appeals were

taken before the district courts could reasonably render a decision on the applicability of Mangold and, perhaps, Butters,

there is no collateral order fulfilling the Will requirements for

appealability pursuant to Cohen, and therefore no jurisdiction

in this Court to review any related aspect of the proceedings

below.19

18The Supreme Court’s recent decision in Filarsky v. Delia, No. 10-

1018, 2012 WL 1288731 (U.S. Apr. 17, 2012), is not at all to the contrary.

The issue in Filarsky, an appeal by a private lawyer from the denial of

qualified immunity in a § 1983 case, was "whether an individual hired by

the government to do its work is prohibited from seeking such immunity."

Id. at *3. The Supreme Court concluded in the negative, and, consistent

therewith, we have not curtailed the opportunity of the appellants herein

to seek immunity from the plaintiffs’ claims; such immunity may yet be

had. It is also worth noting that the appeal in Filarsky was taken only after

the district court had ruled on summary judgment, see id. at *4, ascertaining that the issues in controversy were strictly legal, i.e., whether qualified

immunity could be extended to private parties, and whether the alleged

constitutional violation was one of clearly established law. 

19The same lack of jurisdiction obtains with respect to L-3’s attempted

appeal of the Maryland district court’s denial of its motion to dismiss the

ATS claims, insofar as that appeal is grounded in any of the derivative

immunities we have discussed. See supra note 2 (observing winnowing of

L-3’s ATS arguments from those presented to the district court). Similar

unsettled questions pertaining to potentially relevant considerations such

as agency, the scope of L-3’s duties under the contracts, and the degree

of integration may bear on whether the asserted immunities are properly

"derived" to defeat the plaintiffs’ claims. Further, we agree with the court

AL SHIMARI v. CACI INTERNATIONAL 35
D.

There being no independent basis for appellate jurisdiction

premised on the law-of-war defense, Saleh preemption, or

Mangold immunity, we are without pendent jurisdiction to

further consider the appellants’ contentions that the plaintiffs’

claims present nonjusticiable political questions. Our rejection

of each of the three proffered bases also precludes the exercise of jurisdiction regardless of whether the appellants’ political question defense is inextricably intertwined with any of

them, or whether those bases are similarly interdependent

with one another.

IV.

Pursuant to the foregoing, these consolidated appeals must

be dismissed.

APPEALS DISMISSED

DUNCAN, Circuit Judge, concurring:

I respect the majority’s well-reasoned opinion in this case

and therefore fully concur in its conclusion that we lack jurisdiction to hear this appeal. I write separately only to express

below that although the Maryland plaintiffs have sued under the ATS, that

litigation strategy should not be construed as a judicial admission that the

actions of L-3 were those of the United States, thereby crystallizing access

to a sovereign immunity defense and providing, through the denial of such

immunity, an independent basis for appellate jurisdiction. See Al-Quraishi

v. Nakhla, 728 F. Supp. 2d 702, 751-53 (D. Md. 2010). Our conclusion in

that regard is buttressed by Sosa v. Alvarez-Machain, 542 U.S. 692, 732

& n.20 (2004), in which the Supreme Court carefully left open the question of whether ATS liability may be imposed on private actors. Obviously, if the plaintiffs’ ATS claims may be maintained against L-3 as a

private actor but not as an agent of the government acting within the scope

of its agency, L-3’s status is one more issue that may be appropriate for

the district court to resolve following discovery. 

36 AL SHIMARI v. CACI INTERNATIONAL
my hope that the district courts in these consolidated appeals

will give due consideration to the appellant’s immunity and

preemption arguments—especially in light of the Supreme

Court’s recent opinion in Filarsky v. Delia, 132 S. Ct. 1657

(2012), as discussed in Judge Niemeyer’s dissent—which are

far from lacking in force.

Judge Agee has authorized me to indicate that he joins in

this concurrence.

WYNN, Circuit Judge, concurring:

I concur fully in the thoughtful and well-reasoned majority

opinion in these cases. I write separately only to underscore

the prudence of the majority’s restraint, which promotes both

"efficient judicial administration" and "the prerogatives of

district court judges, who play a special role in managing

ongoing litigation." Mohawk Indus., Inc. v. Carpenter, 130 S.

Ct. 599, 605 (2009).

With respect to the latter consideration, I feel compelled to

reiterate the majority’s holding that our limited appellate role

leaves us without jurisdiction at this stage of the litigation to

consider the underlying merits of these appeals. Likewise, as

noted in the majority opinion, "facts that might be material to

the ultimate issue have [not yet] been conclusively identified"

in these cases, which are on appeal from motions to dismiss.

Ante at 34. 

Accordingly, today’s opinion offers no guidance to the district court on the underlying merits of these matters. To do

otherwise would, in my opinion, potentially usurp the role of

the district court or risk overstepping our own. See United

States v. Fruehauf, 365 U.S. 146, 157 (1961) ("Such [advisory] opinions, such advance expressions of legal judgment

upon issues which remain unfocused because they are not

pressed before the Court with that clear concreteness provided

when a question emerges precisely framed and necessary for

AL SHIMARI v. CACI INTERNATIONAL 37
decision from a clash of adversary argument exploring every

aspect of a multifaceted situation embracing conflicting and

demanding interests, we have consistently refused to give.").

Further, to the extent that my colleagues, in separate opinions,

offer their views on the underlying merits of these cases,

those opinions, "by their nature[,] express views that are not

the law." Arar v. Ashcroft, 585 F.3d 559, 581 n.14 (2d Cir.

2009) (en banc).

WILKINSON, Circuit Judge, dissenting: 

The majority in this case tries to present its view as some

sort of innocuous jurisdictional disposition. But the jurisdictional ruling is wrong, and the decision is anything but innocuous. It inflicts significant damage on the separation of

powers, allowing civil tort suits to invade theatres of armed

conflict heretofore the province of those branches of government constitutionally charged with safeguarding the nation’s

most vital interests. 

I fully join Judge Niemeyer’s fine dissent. My good colleague has ably addressed many of the failings of today’s

decision, and I see no need to repeat those points here. I write

separately only because the difficulties with these actions are

so legion that no single dissent could hope to cover them all.

The majority and I disagree on much, but there is no disagreement about the Abu Ghraib photographs that have apparently inspired this litigation. See ante at 10. Americans of

good will were sickened by those photographs and the

depraved conduct that would be reprehensible whenever,

wherever, and against whomever it was applied. But acknowledging that fact answers only the question of whether this is

a hard case. It does not answer the question whether it is bad

law whose lasting consequences and abiding damage will

long outlive the distressing photographs that have prompted

the suits herein. 

38 AL SHIMARI v. CACI INTERNATIONAL
The actions here are styled as traditional ones and wrapped

in the venerable clothing of the common law. Even on common law terms, however, they are demonstrably incorrect,

and the impact which tort doctrine will have on military operations and international relations magnifies the difficulties

immeasurably. I dare say none of us have seen any litigation

quite like this and we default if we accept uncritically or

entertain indefinitely this novel a violation of the most basic

and customary precepts of both common and constitutional

law. 

Sadly, the majority’s opinion does precisely this. After

reading its decision, one could be forgiven for thinking that

the issue before us is a simple jurisdictional question arising

out of ordinary tort suits. But these are not routine appeals

that can be quickly dismissed through some rote application

of the collateral order doctrine. This case instead requires us

to decide whether the contractors who assist our military on

the battlefield will be held accountable through tort or contract, and that seemingly sleepy question of common law remedies goes to the heart of our constitutional separation of

powers. Tort suits place the oversight of military operations

in an unelected judiciary, contract law in a politically accountable executive. And in the absence of some contrary expression on the part of the Article I legislative branch, the basic

principles of Article II require that contractual, not tort, remedies apply. 

The majority emphatically decides this weighty question by

pretending not to decide, as its dismissal of these appeals

gives individual district courts the green light to subject military operations to the most serious drawbacks of tort litigation. But arrogating power to the Third Branch in a contest

over military authority is the wrong call under our Constitution, and there is no garb for this decision so benign as to

obscure the import of what the majority has done. 

We tread this territory at our peril. This decision is contrary

to decades of Supreme Court admonitions warning federal

AL SHIMARI v. CACI INTERNATIONAL 39
courts off interference with international relations. Of course

military contractors should be held accountable, and it is

important that a framework be set in place to accomplish this

task. But instead of establishing that framework, the majority

succumbs to mere drift and in so doing places courts in the

most damaging and least defensible legal landscape possible.

None of us have any idea where exactly all this is headed or

whether the damage inflicted on military operations will be

only marginal or truly severe. At a minimum, however,

today’s decision breaches a line that was respected by our predecessors on courts high and low. I would not cross this

boundary even if the collateral order doctrine could cloak my

steps. With all respect for my fine colleagues, I would remand

these actions to the district court with direction that they be

dismissed. 

Part I of my dissenting opinion discusses the utter unsuitability of tort actions such as these in the context of an international theatre of war. Part II addresses why contract law is

compatible with the separation of powers and the responsibilities allocated the executive branch under Article II of our

Constitution. Part III explains why the majority’s application

of the collateral order doctrine goes beyond being incorrect to

inflicting damage on American interests overseas.

I.

Tort regimes involve well-known tradeoffs. They may promote the public interest by compensating innocent victims,

deterring wrongful conduct, and encouraging safety and

accountability. However, tort law may also lead to excessive

risk-averseness on the part of potential defendants. And caution that may be well-advised in a civilian context may not

translate neatly to a military setting, where the calculus is different, and stakes run high. Risks considered unacceptable in

civilian life are sometimes necessary on a battlefield. In order

to secure high-value intelligence or maintain security, the military and its agents must often act quickly and on the basis of

40 AL SHIMARI v. CACI INTERNATIONAL
imperfect knowledge. Requiring consideration of the costs

and consequences of protracted tort litigation introduces a

wholly novel element into military decisionmaking, one that

has never before in our country’s history been deployed so

pervasively in a theatre of armed combat. 

The majority acquiesces in judicial control over these sensitive military judgments. It opens the door for the plaintiffs to

conduct broad discovery based on boilerplate complaints

alleging a laundry list of state law claims, including "assault

and battery," "sexual assault and battery," "intentional infliction of emotional distress," and "negligent hiring and supervision." By allowing such claims to go forward against

contractors integrated into wartime combatant activities under

control of the U.S. military, the majority raises thorny questions of whose law should apply, compromises the military’s

ability to utilize contractors in the future, and nudges foreign

policy and war powers away from the political branches of the

federal government and into the hands of federal courts. Simply put, these state tort claims have no passport that allows

their travel in foreign battlefields, and we have no authority

to issue one. 

The complaint makes clear, and the contractors do not dispute, that the contractors here were acting in collaboration

with U.S. military personnel. See, e.g., Al Shimari Amended

Complaint ¶¶ 1, 70, 71, 118, 124, 135. The majority nonetheless draws the odd distinction that contractors and the military

may be in a "conspiracy" without somehow being "integrated." See ante at 33 n.17. In addition to the forementioned

paragraphs, the complaint in fact provides ample allegations

of integration. For example, the Al-Quraishi plaintiffs claim

that "L-3 employed all the civilian translators used by the military in Iraq," Al-Quraishi Amended Complaint ¶ 78, and that

"Defendants’ acts took place during a period of armed conflict, in connection with hostilities" in which the U.S. military

was engaged, id. ¶ 280. Indeed, they allege integration so

complete that civilian interrogators were giving orders to miliAL SHIMARI v. CACI INTERNATIONAL 41
tary personnel. Id. ¶ 221. For its contrary view, the majority

departs from the well-established rule that we take the assertions of the complaint on a motion to dismiss as true. While

the whole gravamen of the complaint is military-contractor

cooperation and collaboration, the majority would have us

believe they were more akin to strangers in the night. 

The majority also suggests that the contractors may have

departed from military instructions. See ante at 33-34 n.17. If

the contractors did depart from the military’s instructions, that

would allow the government to pursue a breach of contract

claim. See infra Part II. Ironically, the complaint itself speaks

specifically in terms of a failure to "abide[ ] by the contract

terms," Al-Quraishi Amended Complaint ¶ 247, even though

the plaintiffs were in no sense a party to the same. But any

breach of contract does not begin to confer a cause of action

in tort on the part of detainees in a theatre of armed conflict.

There is no indication that Congress or any other law-making

authority, federal or state, wanted foreign nationals in detention to litigate in tort the relationship between military contractors and the U.S. military when the government itself as

a party to the contract has posited no need to do so. 

A.

From this point, the problems with this litigation only multiply. First, due largely to their inventive nature, these suits

present the difficult question of whose law should govern

them. The majority clears the way for one federal court, sitting in Maryland, to apply Iraqi tort law to the alleged conduct

—in an Iraqi war zone—of a Virginia-headquartered contractor integrated into wartime combatant activities of the U.S.

military, and for another federal court, sitting in Virginia, to

apply Virginia tort law to a similarly situated contractor for

alleged conduct also occurring in an Iraqi war zone. This is,

to put it mildly, no way to run a railroad.

42 AL SHIMARI v. CACI INTERNATIONAL
1.

The court below in Al-Quraishi v. Nakhla, 728 F. Supp. 2d

702 (D. Md. 2010)—applying the principle of lex loci delicti

—decided that "Iraqi law applies to all of Plaintiffs’ state law

claims." Id. at 763.* This conclusion is highly troublesome.

Most fundamentally, the application of Iraqi law against

agents of the U.S. military constitutes a complete surrender of

sovereignty. The majority allows Iraqi citizens who were

imprisoned in an active theatre of war to bring tort suits

against the occupying authority based on Iraqi causes of

action. Such suits are not only novel, to say the least, but also

in conflict with Supreme Court precedent. See, e.g., Dow v.

Johnson, 100 U.S. 158, 165, 170 (1879) (explaining that

occupying forces are not subject to the laws of the occupied

territory); Coleman v. Tennessee, 97 U.S. 509, 515, 517

(1878) (same). 

The majority does not point to a single case in which foreign citizens were allowed to sue the occupying authority in

its own courts under foreign causes of action. Likewise, it

offers no support for its assertion that Dow and Coleman do

not apply to military contractors, citing only Ford v. Surget,

97 U.S. 594 (1878), a case implying that law-of-war immunity is not limited to uniformed soldiers. See Ford, 97 U.S. at

*The Al-Quraishi district court also declined to dismiss plaintiffs’ Alien

Tort Statute claims because, in its judgment, "Plaintiffs’ claims constitute

recognized violations of the law of nations, appropriately assertable

against Defendants." 728 F. Supp. 2d at 715. Such claims could be precluded by Kiobel v. Royal Dutch Petroleum Co. (No. 10-1491), in which

the Supreme Court is expected to decide whether "the Alien Tort Statute

. . . provide[s] subject matter jurisdiction over claims against corporations," Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir.

2010), cert. granted, 132 S. Ct. 472 (Oct. 17, 2011) (Mem), and

"[w]hether and under what circumstances the Alien Tort Statute . . . allows

courts to recognize a cause of action for violations of the law of nations

occurring within the territory of a sovereign other than the United States,"

___ S. Ct. ___, 2012 WL 687061 (Mar. 5, 2012) (Mem). 

AL SHIMARI v. CACI INTERNATIONAL 43
606-08 (holding a civilian immune from civil suit for burning

cotton in support of the Confederate military). 

Moreover, the majority is simply wrong in suggesting that

the Dow and Coleman Courts were concerned only with protecting the occupying authority from foreign tribunals, in contrast to foreign laws. See, e.g., Dow, 100 U.S. at 165 ("When,

therefore, our armies marched into . . . the enemy’s country,

their officers and soldiers were not subject to its laws, nor

amenable to its tribunals for their acts. They were subject only

to their own government, and only by its laws, administered

by its authority, could they be called to account." (emphases

added)); id. at 170 ("The question here is, What is the law

which governs an army invading an enemy’s country? It is not

the civil law of the invaded country . . . ." (emphasis added));

Coleman, 97 U.S. at 515 ("Officers and soldiers of the armies

of the Union were not subject during the war to the laws of

the enemy, or amenable to his tribunals for offences committed by them. They were answerable only to their own government, and only by its laws, as enforced by its armies, could

they be punished." (emphases added)); id. at 517 (Following

military occupation, "the municipal laws of [the occupied territory] . . . remain in full force so far as the inhabitants of the

country are concerned . . . . This doctrine does not affect, in

any respect, the exclusive character of the jurisdiction of the

military tribunals over the officers and soldiers of the army of

the United States . . . ; for, as already said, they were not subject to the laws nor amenable to the tribunals of the hostile

country." (emphases added)). 

The application of Iraqi tort law to U.S. military contractors

creates practical problems as well. American courts are illsuited to decide unsettled questions of Iraqi law. The district

court in Al-Quraishi, for instance, considered "Whether Aiding and Abetting and Conspiracy are Recognized Torts Under

Iraqi Law and Whether Iraqi Law Allows Punitive Damages."

728 F. Supp. 2d at 764. The defendants argued that aiding and

abetting and conspiracy are not cognizable causes of action

44 AL SHIMARI v. CACI INTERNATIONAL
under Iraqi tort law, and that punitive damages are not

allowed as a remedy. Id. The plaintiffs disagreed, and the parties "submitted affidavits from Iraqi law experts in support of

their respective positions." Id. Not surprisingly, considering

the difficulty of ascertaining foreign law, the district court

decided to "defer decision with respect to the content of Iraqi

law." Id.

Given that the district court had trouble deciding such rudimentary questions as whether aiding and abetting and conspiracy are even causes of action under Iraqi law, and whether

Iraqi law allows punitive damages, how can we expect the

court to decide the far more challenging issues necessary to

a full-scale trial? For instance, how will it decipher the standard of care for each cause of action, and determine whether

there was a breach? It can rely on expert testimony, of course,

but Iraqi law experts appear to disagree as to whether these

causes of action are even cognizable. See id. Accordingly, the

majority allows a federal court to go forward with litigation

in which Iraqi citizens sue a U.S. contractor working hand-inhand with the U.S. military in a war zone under Iraqi causes

of action that may not even exist. 

Under the majority’s decision, military contractors face the

prospect of drawn out lawsuits under the substantive tort law

of every country in which they operate. Such a regime is

unworkable in an era where the military has no choice but to

contract with private corporations. In the present cases, for

example, "a severe shortage" of military intelligence personnel "prompt[ed] the U.S. government to contract with private

corporations to provide civilian interrogators and interpreters." J.A. 408. This use of private contractors was deemed

essential to the achievement of U.S. military objectives. Yet,

under the reasoning of the Al-Quraishi district court, which

the majority allows to stand, the contractors should have

paused to consider their potential liability under the substantive tort law of Iraq before agreeing to supply the military

needed personnel under the government contract. 

AL SHIMARI v. CACI INTERNATIONAL 45
Of course, corporations generally must weigh their potential liabilities before agreeing to specific projects. The possibility of defending a lawsuit every time a foreign citizen

claims a violation of foreign tort law might substantially alter

the profitability of government contracts. Thus, before agreeing to perform the most critical intelligence functions in support of the U.S. military, contractors would be forced to

investigate and analyze the substantive tort law of every country in which its employees might work. This unenviable task

would be even more burdensome when the substantive tort

law varies from jurisdiction to jurisdiction within a country,

as it does in the United States.

In other words, a court that understandably had difficulty

deciding such elementary questions as "Whether Aiding and

Abetting and Conspiracy are Recognized Torts Under Iraqi

Law and Whether Iraqi Law Allows Punitive Damages," AlQuraishi, 728 F. Supp. 2d at 764, is implying that contractors,

before playing a critical role in the U.S. military effort in Iraq,

should have analyzed the nuances and permutations of every

Iraqi tort law that might conceivably affect them. By forcing

contractors to undertake a highly complex and deeply uncertain legal analysis before aiding our military operations, particularly those executed quickly and in countries whose legal

systems are unstable and unfamiliar, the majority jeopardizes

the military’s ability to employ contractors in the future. 

Like the courts, military contractors must rely on legal

experts to analyze foreign law. One suspects that most Iraqi

legal experts practice law in Iraq, and indeed, the Al-Quraishi

plaintiffs relied on the declaration of an Iraqi attorney

employed at an Iraqi law firm. Should the defendants have

sought counsel from these Iraqi attorneys before helping the

U.S. military with detention and interrogation functions?

Should other contractors, before agreeing to aid in the U.S.

military invasion of Iraq, have reached out to Iraqi lawyers for

advice on the legal ramifications of such an attack under Iraqi

tort law? Until now, these questions seemed far-fetched, but

46 AL SHIMARI v. CACI INTERNATIONAL
they are newly valid considerations under a regime that subjects lawsuit-averse American corporations to the substantive

tort law of Iraq. My point is not at all to disrespect Iraqi law

or lawyers, but to query the feasibility of extensive and uncertain legal inquiries into any foreign law on the eve or in the

execution of military operations. 

2.

Unlike the district court in Al-Quraishi v. Nakhla, 728 F.

Supp. 2d 702 (D. Md. 2010), the district court in Al Shimari

v. CACI Premier Technology, Inc., 657 F. Supp. 2d 700 (E.D.

Va. 2009) deferred any ruling on the choice of law issues. See

id. at 725 n.7. As Judge King noted in his dissent from the

now-vacated panel opinion, the Al Shimari plaintiffs argue

that CACI is "liable to them under Virginia law for the torts

of assault and battery, sexual assault, intentional and negligent

infliction of emotional distress, and negligent hiring and

supervision." Al Shimari v. CACI Int’l, Inc., 658 F.3d 413,

427 (4th Cir. 2011) (King, J., dissenting) (emphasis added).

The plaintiffs, after all, are pressing Virginia causes of action,

and thus if the suit is allowed to go forward, the question of

whether Virginia tort law applies extraterritorially must be

seriously asked. The answer to this question is clear: the

application of Virginia tort law to overseas battlefield conduct

by contractors acting under U.S. military authority is as problematic as the application of Iraqi law. 

First, there is no indication whatsoever that the Commonwealth of Virginia has any interest in having its tort law

applied abroad in these types of cases. Absent a contrary legislative intent, we assume that legislatures do not want their

tort law to apply extraterritorially. For instance, in EEOC v.

Arabian American Oil Co. ("Aramco"), 499 U.S. 244 (1991),

the Supreme Court held that Title VII of the Civil Rights Act

of 1964 does not apply extraterritorially to regulate the

employment practices of U.S. employers who employ U.S.

citizens abroad. Id. at 246-47. In reaching this conclusion, the

AL SHIMARI v. CACI INTERNATIONAL 47
Court relied on the "longstanding principle" that "‘legislation

of Congress, unless a contrary intent appears, is meant to

apply only within the territorial jurisdiction of the United

States.’" Id. at 248 (citation omitted). Given that "Congress

legislates against the backdrop of the presumption against

extraterritoriality," the Court stated, "unless there is ‘the affirmative intention of the Congress clearly expressed,’ we must

presume it ‘is primarily concerned with domestic conditions.’" Id. (citations omitted). Ultimately, the Court concluded that the petitioners had failed to provide sufficient

evidence that Congress intended Title VII to apply abroad. Id.

at 259. 

Citing Aramco, the Supreme Court recently reiterated these

principles in Morrison v. National Australia Bank Ltd., 130 S.

Ct. 2869 (2010), where it held that § 10(b) of the Securities

Exchange Act of 1934 does not apply extraterritorially. Id. at

2877-78, 2883. The Court reasoned that "[t]he results of

judicial-speculation-made-law—divining what Congress

would have wanted if it had thought of the situation before the

court—demonstrate the wisdom of the presumption against

extraterritoriality." Id. at 2881. "Rather than guess anew in

each case," the Court continued, "we apply the presumption

in all cases, preserving a stable background against which

Congress can legislate with predictable effects." Id.

Similarly, in Gregory v. Ashcroft, 501 U.S. 452 (1991), the

Court concluded that judges must apply a "plain statement

rule" before upsetting the standard constitutional balance of

federal and state powers. Id. at 460-61. "[I]f Congress intends

to alter the usual constitutional balance," the Court explained,

"it must make its intention to do so unmistakably clear in the

language of the statute." Id. at 460 (internal quotation marks

omitted). "In traditionally sensitive areas," the Court continued, "the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the

critical matters involved in the judicial decision." Id. at 461

(internal quotation marks omitted). 

48 AL SHIMARI v. CACI INTERNATIONAL
Aramco, Morrison, and Gregory all involved the "longstanding principle" that "‘legislation of Congress, unless a

contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’" Aramco, 499 U.S.

at 248 (emphasis added) (citation omitted). However, given

that the Constitution entrusts foreign affairs to the federal

political branches, see U.S. Const. art. I, § 8, cls. 1, 11-15; art.

II, § 2, cls. 1-2, limits state power over foreign affairs, see id.

art. I, § 10, and establishes the supremacy of federal enactments over state law, see id. art. VI, cl. 2, the presumption

against extraterritorial application is even stronger in the context of state tort law. 

It defies belief that, notwithstanding the constitutional

entrustment of foreign affairs to the national government, Virginia silently and impliedly wished to extend the application

of its tort law to events overseas. Or further, that it would do

so in active disregard of Supreme Court pronouncements. For

the Court has repeatedly stated that the federal government

has exclusive power over foreign affairs, and that states have

very little authority in this area. In Chae Chan Ping v. United

States, 130 U.S. 581 (1889), for instance, the Court noted,

"‘[T]he United States is not only a government, but it is a

national government, and the only government in this country

that has the character of nationality. It is invested with power

over all the foreign relations of the country, war, peace and

negotiations and intercourse with other nations; all of which

are forbidden to the state governments.’" Id. at 605 (citation

omitted). The Court reiterated these principles in United

States v. Belmont, 301 U.S. 324 (1937), emphasizing that

"[g]overnmental power over external affairs is not distributed,

but is vested exclusively in the national government." Id. at

330. The Belmont Court further noted that "complete power

over international affairs is in the national government and is

not and cannot be subject to any curtailment or interference

on the part of the several states." Id. at 331. Likewise, in

Hines v. Davidowitz, 312 U.S. 52 (1941), the Court stressed

that "[o]ur system of government is such that . . . the interest

AL SHIMARI v. CACI INTERNATIONAL 49
of the people of the whole nation, imperatively requires that

federal power in the field affecting foreign relations be left

entirely free from local interference." Id. at 63. 

Such interference is precisely what we invite by ascribing

to the fifty states the unexpressed wish that their tort law govern the conduct of military operations abroad. The principle

against such interference holds even where the executive

branch insists that the state law does not interfere with the foreign relations power. For instance, in Zschernig v. Miller, 389

U.S. 429 (1968), the Supreme Court struck down an Oregon

probate law as "an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President

and the Congress." Id. at 432. Although "[t]he several States

. . . have traditionally regulated the descent and distribution

of estates," the Court concluded, "those regulations must give

way if they impair the effective exercise of the Nation’s foreign policy." Id. at 440. In its brief amicus curiae, the Department of Justice stated, "The government does not . . . contend

that the application of the Oregon escheat statute in the circumstances of this case unduly interferes with the United

States’ conduct of foreign relations." Id. at 434. The Court

disregarded this statement, reasoning that the state action

might cause "disruption or embarrassment" that the Justice

Department failed to appreciate. Id. at 434-35, 441. In concurrence, Justice Stewart was even less deferential toward statements from the executive branch: 

We deal here with the basic allocation of power

between the States and the Nation. Resolution of so

fundamental a constitutional issue cannot vary from

day to day with the shifting winds at the State

Department. Today, we are told, Oregon’s statute

does not conflict with the national interest. Tomorrow it may.

Id. at 443 (Stewart, J., concurring). 

50 AL SHIMARI v. CACI INTERNATIONAL
3.

So too here, we are hardly required to defer to the Justice

Department’s statements that these cases should go forward.

The Department urges us to 

hold that state tort law claims against contractors are

generally preempted if similar claims brought

against the United States would come within the

FTCA’s combatant activities exception and if the

alleged actions of the contractor and its personnel

occurred within the scope of their contractual relationship with the government, particularly if the conduct occurred while contractor personnel were

integrated with the military in its combat-related

activities. 

Br. of United States at 2-3. 

So far, so good. And one would think that this would be the

end of it. However, the Department carves out an exception

where "a contractor has committed torture as defined in 18

U.S.C. § 2340," the federal anti-torture statute. Id. at 3. The

government then elaborates further on its proposed exception

by implying that state-law tort remedies need not be available

going forward "in light of measures subsequently instituted by

Congress and the Executive Branch, and other developments

in the aftermath of Abu Ghraib." Id. at 23. Like the Justice

Department’s brief in Zschernig, this vaguely explained and

inexplicably derived exception is not entitled to deference by

this court. As the Supreme Court only recently reiterated,

"[T]he separation of powers does not depend on . . . whether

‘the encroached-upon branch approves the encroachment.’"

Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd.,

130 S. Ct. 3138, 3155 (2010) (quoting New York v. United

States, 505 U.S. 144, 182 (1992)). 

The government does not point to a single expression of

congressional intent in support of permitting state law tort

AL SHIMARI v. CACI INTERNATIONAL 51
claims to apply overseas based solely on the nature of the

allegations. Instead, it asserts that "in the limited circumstances where the state law claim is based on allegations that

the contractor committed torture, as defined in 18 U.S.C.

§ 2340, courts should take into account the strong federal

interests embodied in that federal law." Br. of United States

at 22. In these circumstances, the government suggests, "the

totality of the federal interests is different and does not require

that state-law tort suits against contractors be preempted." Id.

at 3. 

It is difficult to see how 18 U.S.C. § 2340—which exhibits

an interest in punishing torture through federal criminal

prosecution—demonstrates any congressional interest in permitting torture-based state tort claims. The federal anti-torture

statute, 18 U.S.C. § 2340 et seq., does not even contain a private right of action. And in any event, courts have no license

to create exceptions based on helter-skelter application of federal criminal statutes, exceptions that permit otherwise preempted state tort claims to go forward. 

It is elemental that a federal court cannot simply engraft on

its own a federal criminal law standard onto state tort claims.

The federal judiciary is not permitted to reconfigure the elements of a state law cause of action. For as the "[Supreme]

Court recognized in [Lingle v. Norge Division of Magic Chef,

Inc., 486 U.S. 399 (1988),] the responsibility for defining the

elements and scope of a state cause of action rests with the

state legislature and state courts." Childers v. Chesapeake &

Potomac Tel. Co., 881 F.2d 1259, 1265 (4th Cir. 1989). 

This court requested the government’s submission of an

amicus brief here, and I am appreciative of that submission.

However, the government’s amicus position is at odds with its

own conduct. If the government believes that there have been

contractual or criminal violations on the part of its own contractors, then it should proceed to exercise its unquestioned

contractual and prosecutorial authority to go after the culpable

52 AL SHIMARI v. CACI INTERNATIONAL
party. See infra Part II.B. If it does not believe such violations

have occurred, it should say so. But given the significance of

this case, the exclusive competence of the federal government

in the field of foreign affairs, and the principles articulated in

Aramco, Morrison, and Gregory, neither the federal executive

nor the federal judiciary is entitled to assume that states want

their tort law applied extraterritorially absent a plain statement

to the contrary. 

Here there is no indication that the Commonwealth of Virginia intended to apply its laws of assault, battery, sexual

assault, intentional and negligent infliction of emotional distress, and negligent hiring and supervision to the battlefield

conduct of contractors integrated into the wartime activities

abroad of the U.S. military. A state’s interest in employing a

tort regime is largely confined to tortious activity within its

own borders or against its own citizens. It is anything but

clear that Virginia has any interest whatsoever in providing

causes of action that allow foreign citizens that have never set

foot in the Commonwealth to drag its own corporations into

costly, protracted lawsuits under who-knows-what legal

authority. 

Notwithstanding the presumption against extraterritorial

application of state law and the absence of any indication that

the Commonwealth wants its tort law applied to battlefield

conduct, the Al Shimari plaintiffs ask the district court to

apply Virginia tort law to war-zone conduct that took place

over 6,000 miles away. It is difficult to find a limiting principle in the plaintiffs’ analysis. Under their approach, Virginia

tort law—and the tort regimes of all fifty states—can be

applied to conduct occurring in every corner of the earth. By

allowing plaintiffs’ causes of action to go forward, the majority lends its imprimatur to the extraterritorial application of

state tort law. Reading the majority’s opinion, I wonder if my

friends will next launch state tort law into outer space. 

AL SHIMARI v. CACI INTERNATIONAL 53
4.

Even if the Commonwealth had somehow intended the

extraterritorial application of its tort law, which it has not, the

Supreme Court has made clear that state laws aimed at influencing foreign relations cannot stand when they conflict with

federal objectives. In Crosby v. National Foreign Trade

Council, 530 U.S. 363 (2000), for example, the Court invalidated a Massachusetts law that restricted state agencies from

purchasing goods or services from companies doing business

with Burma. Id. at 366. The Court reasoned that the state law

was "an obstacle to the accomplishment of Congress’s full

objectives" under a federal law that directed the President to

develop a comprehensive, multilateral strategy toward Burma.

Id. at 369, 373. By "imposing a different, state system of economic pressure against the Burmese political regime," the

Court explained, "the state statute penalizes some private

action that the federal Act (as administered by the President)

may allow, and pulls levers of influence that the federal Act

does not reach." Id. at 376. Consequently, the Court

explained, the Massachusetts law could not stand because it

"compromise[d] the very capacity of the President to speak

for the Nation with one voice in dealing with other governments." Id. at 381. 

Similarly, in American Insurance Ass’n v. Garamendi, 539

U.S. 396 (2003), the Court struck down California’s Holocaust Victim Insurance Relief Act, which required any insurer

doing business in the state to disclose information about

Holocaust-era insurance policies. Id. at 401. The Court began

by noting, 

There is . . . no question that at some point an exercise of state power that touches on foreign relations

must yield to the National Government’s policy,

given the ‘concern for uniformity in this country’s

dealings with foreign nations’ that animated the

54 AL SHIMARI v. CACI INTERNATIONAL
Constitution’s allocation of the foreign relations

power to the National Government in the first place.

Id. at 413 (citation omitted). In the context of Holocaust-era

insurance claims, explained the Court, "California seeks to

use an iron fist where the President has consistently chosen

kid gloves." Id. at 427. Accordingly, the Court held that the

state statute was preempted because it "interferes with the

National Government’s conduct of foreign relations." Id. at

401. 

Under Crosby and Garamendi, states are prohibited from

obstructing the foreign policy objectives of the federal government. There can be no question that there is obstruction

here, where the federal law, speaking with one voice, can

potentially be supplanted by the fifty different voices of varying state tort regimes, each one potentially working at crosspurposes with federal aims. Thus, even if Virginia wanted to

extend its tort law to overseas battlefield conduct of military

contractors, it cannot create an "obstacle to the accomplishment of Congress’s full objectives" under federal law.

Crosby, 530 U.S. at 373. Because Congress has emphatically

forbid tort law from governing battlefield conduct, any

attempt to "impos[e] a different, state system" on the battlefield, id. at 376, would impermissibly "interfere[ ] with the

National Government’s conduct of foreign relations," Garamendi, 539 U.S. at 401. 

B.

In contrast to the Commonwealth of Virginia, Congress has

a constitutionally protected role in foreign affairs. See U.S.

Const. art. I, § 8, cls. 1, 11-15. Congress undoubtedly has the

power to allow private parties to pursue tort remedies against

war-zone contractors operating under military authority.

"[T]he Constitution contemplated that the Legislative Branch

have plenary control over . . . regulations, procedures and

remedies related to military discipline . . . ." Chappell v. WalAL SHIMARI v. CACI INTERNATIONAL 55
lace, 462 U.S. 296, 301 (1983). Congress could thus do what

the majority has asserted its own right to do, namely to authorize foreign nationals as private attorneys general to police

contractor conduct in theatres of armed combat. However,

contrary to the plaintiffs’ assertions, there is no indication that

Congress has pursued any such course. 

Plaintiffs contend that the Federal Tort Claims Act

("FTCA") permits private parties to bring state law tort suits

against military contractors for wartime conduct. In analyzing

this claim, we must adhere to the longstanding presumption

that Congress does not permit private parties to interfere with

military operations absent explicit statutory authorization.

"[U]nless Congress specifically has provided otherwise,

courts traditionally have been reluctant to intrude upon the

authority of the Executive in military and national security

affairs," Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988),

and this hesitance to transgress constitutional boundaries

applies fully to our interpretation of statutes. See Feres v.

United States, 340 U.S. 135, 146 (1950) (declining to read the

FTCA’s broad waiver of sovereign immunity to allow military personnel to sue the government for service-related injuries even though no provision explicitly prevents them from

doing so); see also United States v. Johnson, 481 U.S. 681,

690 (1987) (reaffirming the holding in Feres because "suits

brought by service members against the Government for injuries incurred incident to service . . . are the ‘type[s] of claims

that, if generally permitted, would involve the judiciary in

sensitive military affairs at the expense of military discipline

and effectiveness.’" (emphasis in original) (citation omitted)).

To adopt plaintiffs’ reading of the FTCA would require us

to abandon this tradition of restraint. This broadly phrased

statute does not contain anything close to a congressional

authorization to private parties to hale war-zone military contractors into civilian courts. At most, it provides that "the term

‘Federal agency’ . . . does not include any contractor with the

United States." 28 U.S.C. § 2671. But that broad definitional

56 AL SHIMARI v. CACI INTERNATIONAL
provision does not mean that "contractors . . . are expressly

excluded from the FTCA’s reach" in the area of battlefield

torts. Al Shimari, 658 F.3d at 435 (King, J., dissenting). For

a "general statutory rule usually does not govern unless there

is no more specific rule," Green v. Bock Laundry Mach. Co.,

490 U.S. 504, 524 (1989), but here there is another provision

of the FTCA that speaks more specifically to whether military

contractors are immune from these tort actions. 

That provision is the combatant activities exception, which

preserves the government’s sovereign immunity against

"[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war."

28 U.S.C. § 2680(j). Multiple textual clues in this exception

indicate that Congress wanted to keep tort law out of the battlefield regardless of a defendant’s status as a soldier or a contractor. 

To start with, the exception bars claims "arising out of"

combatant activities, id., and this phrase is among the broadest in the law. "[I]n workmen’s compensation statutes," for

instance, "[t]he arising-out-of test is a familiar one used . . .

to denote any causal connection between the term of employment and the injury." Saleh v. Titan Corp., 580 F.3d 1, 6

(D.C. Cir. 2009) (emphasis in original) (footnote omitted).

Indeed, the use of this phrase in other FTCA exceptions has

precluded a wide range of actions. For instance, the "sweeping language" of 28 U.S.C. § 2680(h)—which preserves the

government’s sovereign immunity against claims "arising out

of assault [or] battery"—bars not only battery actions, but

negligence claims that "stem from a battery" as well. United

States v. Shearer, 473 U.S. 52, 55 (1985) (plurality opinion);

see also Kosak v. United States, 465 U.S. 848, 854 (1984)

(equating "arising in respect of" in 28 U.S.C. § 2680(c) with

"arising out of" and observing that the former "encompassing

phrase . . . seems to sweep within the exception all injuries

associated in any way with the ‘detention’ of goods"). Congress wanted to forbid tort suits stemming from combatant

AL SHIMARI v. CACI INTERNATIONAL 57
activities, and it chose in "[a]ny claim arising out of" a broad

and widely recognized prohibitory term. 

The exception’s use of the term "combatant activities" does

not denote a narrow subset of military operations but a legislative intention to prevent tort from entering the battlefield.

This term encompasses "not only physical violence, but activities both necessary to and in direct connection with actual

hostilities," Johnson v. United States, 170 F.2d 767, 770 (9th

Cir. 1948), and therefore has a considerable sweep. As the

Supreme Court has noted, this provision "paint[s] with a far

broader brush" than other FTCA exceptions that bar suits arising out of a subset of harms associated with a particular area.

See Dolan v. U.S. Postal Serv., 546 U.S. 481, 489-90 (2006)

(contrasting the combatant activities exception in § 2680(j)

with § 2680(b), which preserves immunity for "just three

types of harm" associated with mail delivery). Given the

broad language of the combatant activities exception, it is difficult to believe that Congress wanted the sensibilities of tort

to govern the realities of war. 

Indeed, as the District of Columbia Circuit recognized, "the

policy embodied by the combatant activities exception is simply the elimination of tort from the battlefield." Saleh, 580

F.3d at 7. Congress insulated the theatre of war from tort law

because it "recognize[d] that during wartime encounters no

duty of reasonable care is owed to those against whom force

is directed as a result of authorized military action." Koohi v.

United States, 976 F.2d 1328, 1337 (9th Cir. 1992). In order

to shield "[a]ny claim arising out of the combatant activities

of the military" from tort liability, Congress used some of the

broadest language possible when drafting this exception. It is

not our role to dismember this exclusion’s text in order to

determine when and to what extent torts can arise from combatant activities after all. 

If this textual evidence were not enough, the Supreme

Court has refused to read the FTCA to authorize tort suits

58 AL SHIMARI v. CACI INTERNATIONAL
against defense contractors, albeit in a slightly different context. See Boyle v. United Techs. Corp., 487 U.S. 500, 511-12

(1988). The contractor in Boyle provided a helicopter for the

military rather than aid in a war-zone, id. at 502, but the logic

is the same. Because the FTCA’s discretionary function

exception precluded suits against the government for design

defects in military equipment, Boyle held that it barred those

actions against defense contractors as well. Id. at 511-12. As

the Court observed, "[i]t makes little sense to insulate the

Government against financial liability . . . when the Government produces the equipment itself, but not when it contracts

for the production." Id. at 512. 

I recognize that the temptation exists to exalt the brave men

and women who defend our nation in time of war, and then,

in the next breath, to disparage contractors as some sort of

evil twin responsible for wars’ inevitable missteps and

excesses. But the FTCA does not permit such a dichotomy. It

makes even less sense than in Boyle to shield the military

from litigation for the battlefield activities of soldiers but not

contractors. In Boyle, the Supreme Court did not even require

a military-specific exception before insulating military contractors from design-defect liability. Instead, the Court relied

on the discretionary function exception, which is not specific

to military operations but instead broadly precludes claims

"based upon the exercise or performance or the failure to

exercise or perform a discretionary function or duty on the

part of a federal agency or an employee of the Government."

28 U.S.C. § 2680(a); Boyle, 487 U.S. at 511-12. Here, by contrast, Congress has provided an exception that singles out

claims "arising out of . . . combatant activities." 28 U.S.C.

§ 2680(j). If the Supreme Court was willing to read the former

general provision to cover military contractors, it would not

hesitate to do the same with the latter more targeted exception.

In addition to enacting the combatant activities exception,

Congress has indicated its desire to keep tort law off the batAL SHIMARI v. CACI INTERNATIONAL 59
tlefield by subjecting certain military contractors to other

forms of discipline for war-zone conduct. For instance, the

Uniform Code of Military Justice ("UCMJ") applies not only

to members of our military, but to "persons serving with or

accompanying an armed force in the field" in "time of

declared war or a contingency operation" as well. 10 U.S.C.

§ 802(a)(10). The Military Extraterritorial Jurisdiction Act

likewise subjects these contractors to domestic criminal sanctions by punishing anyone who, "while employed by or

accompanying the Armed Forces" abroad, "engages in conduct outside the United States that would constitute an offense

punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States." 18 U.S.C.

§ 3261(a)(1). Unlike the application of state tort law, these

procedures for holding contractors accountable were approved

by Congress. 

Ignoring the military risks and legal constraints that prohibit extraterritorial application of state tort law, the majority

inserts tort into the battlefield by allowing these suits to go

forward. But before applying state tort law to the combat

activities of contractors working under the U.S. military, we

should make certain that the legislative branch has authorized

us to do so. As the Supreme Court explained in United States

v. Stanley, 483 U.S. 669 (1987), "[T]he insistence . . . with

which the Constitution confers authority over the Army,

Navy, and militia upon the political branches . . . counsels

hesitation in our creation of damages remedies in this field."

Id. at 682. Because I find no evidence that Congress has

recruited private parties—much less foreign nationals—to

police the frontline, I cannot join my colleagues’ decision to

the contrary. 

C.

Instead of deferring to Congress’s valid exercise of its constitutionally granted powers, the majority places contractor

60 AL SHIMARI v. CACI INTERNATIONAL
accountability in the hands of the unaccountable. Thanks to

the majority’s efforts, contractors that were previously subject

to the control of the executive have new judicial masters. But

when unelected judges render contestable decisions about

military policy in the course of applying tort law to contractors, the public will be unable to remove them from their

posts. This flies in the face of our constitutional tradition of

ensuring some popular control over the prosecution of a war.

As the Supreme Court has explained, "[M]atters of warmaking belong in the hands of those who are . . . most politically

accountable for making them." Hamdi v. Rumsfeld, 542 U.S.

507, 531 (2004) (plurality opinion). 

No one will contend that tort law, however derived and

defined, is a field excelling in precision. The vagueness and

indeterminacy of these cut-and-paste causes of action will

permit judicial discretion and jury variability to govern this

most sensitive of areas. Courts must henceforth set the standards of care in matters of wartime captures, detentions, and

interrogations as well as the measure of damages for the

same. Not only that, but methods of interrogation and procurement of intelligence will be at the sufferance of a single

judicial officer, safely ensconced in a secure courtroom, passing judgment on battlefield conduct thousands of miles away.

Litigants will plead as a matter of course to the breach of

whatever may seem the prevailing standard of care, thus setting in motion logistical problems inherent in transcontinental

tort suits of such novel stripe. 

The results of the rising tide of litigation will be both

unpredictable and contradictory, as particular judges and

juries debate and disagree over which methods of detention

and interrogation are permissible. And as detention of the

enemy becomes a more litigious enterprise, the incentives to

shortcut capture with more lethal and unmanned measures

may rise. Whether or not one approves of transplanting the

delicacy and etiquette of the judicial branch into a theatre of

war is not the question. These lawsuits presage a massive

AL SHIMARI v. CACI INTERNATIONAL 61
transfer of authority reserved to the political branches under

Articles I and II of our Constitution into judicial hands, and

to a single trial judge and jury to boot. This is a subject one

would expect Congress to address in great and meticulous

detail, as it has, for example, in the Military Commissions Act

of 2009, Pub. L. 111-84, 123 Stat. 2190, 2574-614, the Military Commissions Act of 2006, Pub. L. 109-366, 120 Stat.

2600, and the Detainee Treatment Act of 2005, Pub. L. 109-

148, 119 Stat. 2739, and I respectfully take issue with the

matter-of-fact manner in which the gravity of the step taken

is not even acknowledged by the majority, much less

addressed. 

By opening the door to the extraterritorial application of

different state tort regimes, the majority allows for unlimited

variation in the standard of care that is applied to critical combatant activities. There is not a widely agreed upon standard

of care for overseas detentions and interrogations, and different states will allow different causes of action to go forward

and will apply different standards to them. And even if there

were an agreed upon standard—which there is not—particular

judges and juries would apply that standard inconsistently.

Such a standard would probably bottom out on some version

of reasonableness. But in the context of detention and interrogation, what exactly does reasonableness mean? That question

could provoke innumerable answers, and the very vagueness

of tort formulations as to the standard of care means that civilian jurors will be setting the standards for detention and interrogation of military detainees without knowledge of

conditions that obtain in a zone of combat halfway across the

globe. I imply no disrespect of jurors who give of their time

and good sense to our system of justice, but this system will

provide no guidance and no predictability whatsoever because

it will leave the conduct of military functions to the fortuities

of litigious hindsight. 

Contractors can be forgiven for not wanting to entrust their

employees to the vagaries and caprice of individual verdicts

62 AL SHIMARI v. CACI INTERNATIONAL
and trials. Add to that the prospect of punitive damages and

other uncertain measures of recovery, and one will introduce

into the detention and interrogation process a degree of risk

aversion that could well result in the gathering of as little vital

intelligence as possible. While some may regard reduced

interrogations with satisfaction, those whose lives and fortunes depend upon the acquisition of vital intelligence are not

likely to join any chorus of approval. 

The majority’s response is undoubtedly that all these questions remain to be "ironed out." But such words are small

comfort to those who must make critical decisions in the field

while we sit here in Virginia or Maryland or whatever other

venue is doing the "ironing." 

By dismissing these appeals, the majority only drifts and

dawdles, sparing itself the need to come to grips with the

issues, and kicking the can far down the road. The majority

fails to recognize that this is a matter of some urgency. Just

for starters, commanders in the field need actionable battlefield intelligence in order for soldiers to survive. Few wars

have been or will be prosecuted successfully without intelligence that permits units to plan accurate strikes against enemy

forces, and every bit as importantly, to know when lethal

force is plotted against Americans themselves. Actionable

intelligence has always had both offensive and defensive

value. In other words, intelligence not only assists us in prevailing; it saves American lives. 

While there is legitimate debate about how intelligence is

best obtained, a tort suit is probably the very worst forum in

which that issue can or should be resolved. The judges and

juries who review those matters cannot fairly be expected to

possess a background in the utility of different forms of military intelligence, and to ask them to decide such sensitive,

delicate, and complicated questions is, in a word, unrealistic.

See Carmichael v. Kellogg, Brown & Root Servs., Inc., 572

F.3d 1271, 1286-87 (11th Cir. 2009) (explaining that military

AL SHIMARI v. CACI INTERNATIONAL 63
intelligence-gathering is traditionally insulated from judicial

review); United States v. Truong Dinh Hung, 629 F.2d 908,

913-14 (4th Cir. 1980) (noting that "the courts are unschooled

in diplomacy and military affairs, a mastery of which would

be essential to passing upon" matters of intelligence). None of

this is to say, of course, that military contractors are without

fault or that abuses should ever go unremedied. It is simply

to make the point that something as mischievous as the placement of tort law in military calculations should be approved

by some body capable of appreciating the consequences of its

action and constitutionally entrusted with the task. 

II.

A.

While the present suits may focus upon methods of interrogation and conditions of detention, the issue is larger even

than that. In assuming that tort suits are a preferred method of

policing the contractors who assist military operations, the

majority obscures the fact that there exists a more proper remedy in this area. In the absence of some contrary expression

by the Congress, the most basic precepts of separation of

powers require that the alleged abuses of military contractors

must be addressed through the medium of contract, not

through tort. In short, without a clear manifestation of Article

I congressional intent, Article II mandates that contractual,

not tort remedies, be utilized. 

It is a truism that government, including the military, must

contract. Few, if any, governmental tasks are undertaken

today without some form of public-private partnership. The

federal government routinely carries out sensitive public functions through private entities, from running background

checks, see United States v. Virginia, 139 F.3d 984, 986 (4th

Cir. 1998), to rehabilitating prisoners, see Corr. Servs. Corp.

v. Malesko, 534 U.S. 61, 63 n.1 (2001), to investigating criminal activity, see United States v. Warshak, 631 F.3d 266, 320

64 AL SHIMARI v. CACI INTERNATIONAL
(6th Cir. 2010). Assisting with combat operations is no different. There is "ample evidence that the military finds the use

of civilian contractors in support roles to be an essential component of a successful war-time mission." Lane v. Halliburton, 529 F.3d 548, 554 (5th Cir. 2008). The Department of

Defense "employs around 170,000 military contractors on a

yearly basis, having more than doubled its use of contracting

services since 2001." Lauren Groth, Transforming Accountability: A Proposal for Reconsidering how Human Rights

Obligations Are Applied to Private Military Security Firms,

35 Hastings Int’l & Comp. L. Rev. 29, 38 (2012). 

Apart from being necessary, the military’s partnership with

private enterprise has salutary aspects as well. For one thing,

it permits our all-volunteer military to handle troop shortages

in a cost-efficient manner. According to the Army Field Manual, "[r]ecent reductions in military structure, coupled with

high mission requirements and the unlikely prospect of full

mobilization, mean that to reach a minimum of required levels

of support, deployed military forces will often have to be significantly augmented with contractor support." U.S. Dep’t of

the Army, Field Manual 3-100.21, Contractors on the Battlefield Preface (2003). Because of these changes in our military,

"the future battlefield will require ever increasing numbers of

often critically important contractor employees." Id.

These partnerships also allow the military and its contractors to pool their respective expertise and bring the best of

public service and private industry to bear on the mission at

hand. This reliance on contractor expertise will become only

more necessary as warfare becomes more technologically

demanding. As the Army Field Manual notes, "the increasingly hi-tech nature of our equipment . . . [has] significantly

increased the need to properly integrate contractor support

into all military operations." Id. War is not a static enterprise,

and our military will need every bit of the edge that technological expertise affords in order to face the hostilities of the

AL SHIMARI v. CACI INTERNATIONAL 65
future. Only the clueless believe future battlefields will not

prominently feature private contractors. 

B.

Given these realities, it is illusory to pretend that these suits

are simply ordinary tort actions by one private party against

another. Instead, because contractors regularly assist in "the

type of governmental action that was intended by the Constitution to be left to the political branches directly responsible

. . . to the electoral process," see Gilligan v. Morgan, 413 U.S.

1, 10 (1973), a decent respect for the separation of powers

compels us to consider what sort of remedy would best ensure

the authority of the executive over those with whom it partners in carrying out what are core executive functions. The

answer is obvious. Unlike tort, contract law gives the executive branch a mechanism of control over those who regularly

assist the military in performing its mission.

For one thing, contract law is a more textually precise field

than tort law, allowing the executive branch to set the standard of care in the terms of the contract. In contrast to tort

suits in which judges would have to decide what constitutes

a "reasonable bombing," McMahon v. Presidential Airways,

Inc., 502 F.3d 1331, 1350 (11th Cir. 2007), a "prudent intercept," Tiffany v. United States, 931 F.2d 271, 279 (4th Cir.

1991), or a legitimate interrogation method, contract cases

would turn on more definite language in the contract itself—

language that reflected the policy choices of a democratically

accountable branch. Rather than rely on the judicial application of some indeterminate standard of reasonable care, the

executive branch could require contractors to abide by wellestablished military rules and manuals in the terms of its contractual agreement. For instance, the government could direct

military contractors to "adhere to the standards of conduct

established by the operational or unit commander." See Ibrahim v. Titan Corp., 556 F. Supp. 2d 1, 6 (D.D.C. 2007) (internal quotation mark and citation omitted). Focusing on the

66 AL SHIMARI v. CACI INTERNATIONAL
government’s contract rather than theories of tort would also

ensure that important federal interests were not "left to the

vagaries of the laws of the several States," but instead "governed by uniform rules" in the contracts themselves. Carlson

v. Green, 446 U.S. 14, 23 (1980). The majority, however,

appears to prefer judicial supervision through malleable and

multiple tort standards to executive control through clearer

and more consistent contractual provisions. 

Contract law also gives the executive branch, as party to

the contract, the opportunity to pursue a variety of remedies.

In addition to being able to sue a contractor in the event of a

breach, the executive can create more tailored sanctions in the

terms of the contract itself. The government, for example,

could contractually reserve the right to demand that its contractor "remove . . . any employee for reasons of misconduct,"

see Ibrahim, 556 F. Supp. 2d at 7 (omission in original),

thereby allowing it to jettison bad apples without jeopardizing

an entire military operation. 

These contractual tools are not the only ones available to

the executive branch. They are augmented by a web of regulations to which contractors subject themselves by partnering

with the military. Army Regulations, for example, permit

commanders to "apprehend and detain contractors for violations of the law" as well as "restrict or revoke . . . access to

Army facilities or installations for disciplinary infractions."

Army Reg. 715-9 § 4-2(e). What is more, the government can

pursue military sanctions against contractors for battlefield

misconduct under the UCMJ, see 10 U.S.C. § 802(a)(10), as

well as domestic criminal punishments against contractors for

crimes committed abroad, see 18 U.S.C. § 3261(a)(1). Just

within this circuit, in United States v. Passaro, 577 F.3d 207

(4th Cir. 2009), a "paramilitary contractor" was convicted of

federal assault charges arising out of the lethal interrogation

of a detainee in Afghanistan. See id. at 210-12. The government has employed its prosecutorial powers to punish rogue

interrogators in the past, and I see little reason why it would

AL SHIMARI v. CACI INTERNATIONAL 67
forswear the use of such sanctions in the future. See Saleh,

580 F.3d at 2 (noting that in the wake of the events at Abu

Ghraib, the executive branch obtained convictions of a number of soldiers involved and pursued "extensive investigations" into allegations of abuse by contractors). 

When combined with contractual tools, these laws provide

the executive branch with an arsenal of remedies ranging

from removal of a specific contractor to criminal punishment.

The executive requires "a degree of discretion" in the area of

national security, see United States v. Curtiss-Wright Export

Corp., 299 U.S. 304, 320 (1936), and this selection of sanctions gives it an appropriate amount of flexibility. Because the

military and its contractors are tightly bound, litigation in federal court often subjects both to judicial process. Unlike tort

suits instigated at the behest of private parties, contractual and

criminal enforcement permits the executive to protect military

commanders and contractors from being "unnecessarily and

dangerously distracted by litigation half a world away" and to

prevent "discovery into military operations" from "intrud[ing]

on the sensitive secrets of national defense." See Hamdi, 542

U.S. at 532 (plurality opinion). 

In sum, it is silly to think that without tort suits, military

contractors will simply be wandering around war zones unsupervised. What the chain of command does for military officers, contract law does for military contractors. As the Army

Field Manual notes, "The military chain of command exercises management control through the contract." U.S. Dep’t of

the Army, Field Manual, supra, § 1-25. "[P]roper military

oversight of contractors is imperative" to integrating these private actors into military operations, id. § 1-23, and contract

law achieves this goal in ways that tort law cannot. Even

though contractors are not formally "part of the operational

chain of command," they are "managed in accordance with

the terms and conditions of their contract" through the Contracting Officer Representative, who "serves as the operational commander’s primary oversight." Army Reg. 715-9

68 AL SHIMARI v. CACI INTERNATIONAL
§ 4-1(c)-(d). Thus, contract law ensures that these contractors

are "subject to military direction, even if not subject to normal

military discipline." Saleh, 580 F.3d at 7. In other words, "the

Government’s broad authority . . . in managing its operations

does not turn on" whether "contract employees" or "civil servants" are involved. NASA v. Nelson, 131 S. Ct. 746, 758-59

(2011) (citation omitted). 

Tort law, however, conflicts with rather than complements

these contractual mechanisms of control by "interfer[ing] with

the federal government’s authority to punish and deter misconduct by its own contractors." See Saleh, 580 F.3d at 8. The

majority’s allocation of common law remedies is paradoxically not just a matter of common law. It is a decision concerning which branch of government will control the

contractors that assist our soldiers on the battlefield. Whereas

contract and criminal law places contractor accountability

where Article II places it—in the hands of the executive—tort

law places it in the hands of the judiciary. But the executive

branch—and not the judicial—is responsible for overseeing a

war effort under the Constitution. Whereas the President is

required as Commander in Chief "to take responsible and continuing action to superintend the military," Loving v. United

States, 517 U.S. 748, 772 (1996), we as judges are "not given

the task of running the Army." Orloff v. Willoughby, 345 U.S.

83, 93 (1953). 

It is disquieting to say the least that the majority now

believes it can displace, or to use a euphemism, "supplement"

executive control of military contractors with judicial oversight. The costs of that decision will be severe. For one thing,

it bleeds together two areas of law—tort and contract—that

are conceptually distinct. No one disputes that those contractors who actually engage in torture breach those provisions of

their contracts that require them to act in accordance with federal law. But a "[b]reach of contract is not a tort," XCO Int’l

Inc. v. Pac. Scientific Co., 369 F.3d 998, 1002 (7th Cir. 2004),

and it only muddies the law to permit private litigants to bring

AL SHIMARI v. CACI INTERNATIONAL 69
tort suits against contractors just because the latter allegedly

violated an agreement with the executive. "[T]he main currents of tort law run in different directions from those of contract," E. River S.S. Corp. v. Transamerica Delaval, Inc., 476

U.S. 858, 873 n.8 (1986), and it does little good to attempt to

channel them together. 

C.

At bottom, the majority’s facilitation of tort remedies chills

the willingness of both military contractors and the government to contract. I have previously discussed the chilling

effect today’s decision will have on private contractors, see

supra Part I, but I fear that the majority’s efforts will discourage the government from partnering with private industry as

well. Congress might well think the defense budget large

enough without courts adding the prospect of uncertain tort

liabilities. By increasing through prospective tort suits the

costs of employing contractors on the battlefield, the majority

interferes with the executive branch’s capacity to carry out its

constitutional duties. To the Defense Department in an era of

cost consciousness, the threat of tort liability can chill both

the government’s ability and willingness to contract by raising

the price of partnering with private industry, and that is particularly true here. Boyle noted, in fact, that burdens of "tort

suits" against military contractors "would ultimately be

passed through . . . to the United States itself, since defense

contractors will predictably raise their prices to cover . . . contingent liability." 487 U.S. at 511-12. So long as the executive

branch could control contractual performance through contract law, it had little reason to eschew valuable partnerships

with private enterprise. But now that third parties can pull

contractors and their military supervisors into protracted legal

battles, we can expect a distortion of contractor and military

decisionmaking to account for that contingency. As the Saleh

court explained, "Allowance of such suits will surely hamper

military flexibility and cost-effectiveness, as contractors may

prove reluctant to expose their employees to litigation-prone

70 AL SHIMARI v. CACI INTERNATIONAL
combat situations." 580 F.3d at 8. It will no longer be enough

that military contractors meet their contractual commitments

to a T, for there exists no assurance that the standard of care

embraced in subsequent tort suits will incorporate by reference or otherwise the criterion of meeting one’s contractual

obligations. 

"[T]he separation-of-powers doctrine requires that a branch

not impair another in the performance of its constitutional

duties." Loving, 517 U.S. at 757. Today’s decision does precisely that. "[T]he Government’s practical capacity to make

contracts" is "the essence of sovereignty itself." United States

v. Winstar, 518 U.S. 839, 884 (1996) (internal quotation mark

and citation omitted). By making the contract the essence of

the government-contractor partnership, we diminish the

capacity of our adversaries to erode this critical aspect of our

national sovereignty through litigation. Conversely, by elevating tort as a mechanism of weakening this essential partnership, we give those who do not wish us well a means of

putting their ill will to use. I can understand that our enemies

would seek to use our own laws as a weapon against us, but

I cannot understand why we should sanction suits, the unintended effect of which is to equip them. 

III.

Rather than engage in a frank discussion of the consequences that will ensue from its ruling, the majority seeks a

cubby hole in the collateral order doctrine. This argument

misses the mark—for many of the same reasons that tort law

does not belong on the battlefield, this case does not belong

back before the district court. We are engaged in a lot of

semantic word games here, losing completely the forest for

the trees. The collateral order doctrine is not a matter of legalistic banter, but of letting an appellate court confront in a

timely manner issues presenting grave, far-reaching consequences. Before us is a deeply unfortunate instance of litigation creep where doctrines that postpone appeals in a

AL SHIMARI v. CACI INTERNATIONAL 71
domestic context are transposed to an international setting

without recognition of the gravity of such a shift of gears. 

The collateral order doctrine is premised on the eminently

reasonable conclusion that immunities from suit should be

recognized sooner rather than later, because the "rigors of

trial" can often be every bit as damaging as an adverse judgment. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.

863, 870 (1994). Indeed, the "crucial distinction between a

right not to be tried and a right whose remedy requires . . .

dismissal" is whether the immunity in question would be eviscerated by the very process of litigation. United States v. Hollywood Motor Car Co., 458 U.S. 263, 269 (1982). 

Here, the asserted immunity can take on different labels

—"law-of-war immunity," "Boyle preemption," or an inherently political question—but the underlying premise is the

same: that suits for damages against private defendants arising

out of military contracts performed in a theatre of war are not

cognizable by the federal courts under state tort law. The

point of this immunity is not to determine after all the vicissitudes of litigation who should win and who should lose.

Rather, it is a recognition that sensitive military matters

should be insulated at the outset from judicial scrutiny, and

the cases to this effect are legion. 

The majority’s contrary holding is animated by a single

mistaken belief: that "the denial of a preemption claim stemming from the combatant activities exception would not . . .

entail significant scrutiny of sensitive military issues." Ante at

27. The majority expresses this confidence despite its observation that "the questions that will require proper answers . . .

have yet to be fully ascertained." Id. at 34. At a minimum, it

seems clear that the majority’s pursuit of "the luxury of a

complete record developed through discovery," id. at 33,

"careful analysis of intrinsically fact-bound issues," id. at 34,

and "exploration of the appellants’ duties under their contracts

with the government," id. at 34, contemplates full-fledged liti72 AL SHIMARI v. CACI INTERNATIONAL
gation that will inevitably require the substantial scrutiny of

military affairs. 

But this is not just another day at the ranch. This is an

extraordinary case presenting issues that touch on the most

sensitive aspects of military operations and intelligence. The

majority’s proposed inquiry, "focuse[d] on whether the contractor complied with the government’s specifications and

instructions," id. at 27, must perforce entail bringing the military personnel who gave those instructions before a court

halfway around the world. The Supreme Court has long cautioned against "compelled depositions . . . by military officers

concerning the details of their military commands," which

will only "disrupt the military regime." Stanley, 483 U.S. at

682-83. 

Domestically, this sort of "broad ranging discovery and the

deposing of numerous persons . . . can be peculiarly disruptive of effective government." Harlow v. Fitzgerald, 457 U.S.

800, 817 (1982). It carries the risks of "distraction of officials

from their governmental duties, inhibition of discretionary

action, and deterrence of able people from public service." Id.

at 816. In the context of the battlefield, the consequences are

geometrically more dire, since the plaintiffs seek information

about the interrogation methods and intelligence gathering

techniques critical to our nation’s success in combat. "Even a

small chance that some court will order disclosure of a

source’s identity could well impair intelligence gathering

. . . ." CIA v. Sims, 471 U.S. 159, 175 (1985). I wonder how

the majority expects an "inquiry focuse[d] on whether the

contractor complied with the government’s specifications and

instructions," ante at 27, to be resolved without hauling before

the district court the military officers who gave those instructions, exposing our national security apparatus in direct contravention of the Supreme Court’s clear instructions to the

contrary. 

Because military contractors work at such close quarters

with the military, judicial "inquiry into the civilian activities

AL SHIMARI v. CACI INTERNATIONAL 73
[will] have the same effect on military discipline as a direct

inquiry into military judgments." Johnson, 481 U.S. at 691

n.11. This is hardly a fanciful concern. Al-Quraishi, for

instance, will likely seek discovery to validate the allegation

in his complaint that "L-3 employees[ ] and CACI employees

conspired with certain military personnel to torture prisoners."

And the defendants are no better. CACI acknowledged at oral

argument that, in order to produce sensitive military documents that would vindicate itself, it would push the discovery

process against the military "as broadly as [it] possibly

could." 

This quite plainly is the stuff of immunity, not just some

affirmative defense. Despite the Supreme Court’s explicit

admonition to the contrary, both parties frankly seek to "require members of the Armed Services" and their contractors

"to testify in court as to each other’s decisions and actions" in

an attempt to sort out "the degree of fault," thereby undermining the private-public cooperation and discipline necessary for

the execution of military operations. See Stencel Aero Eng’g

Corp. v. United States, 431 U.S. 666, 673 (1977). Both parties

to this suit propose to go rummaging through the most sensitive military files and documents, seeking to prove or disprove a broad-reaching conspiracy to conduct the alleged

illegal interrogations. I have no doubt that these proceedings

will quickly "devolve into an exercise in finger-pointing

between the defendant contractor and the military, requiring

extensive judicial probing of the government’s wartime policies." Saleh, 580 F.3d at 8. 

By pitting uniformed soldiers and military contractors

against one another, we will only "hamper the war effort and

bring aid and comfort to the enemy," which will relish the

opportunity to drag American soldiers into our "own civil

courts" and thereby divert their "efforts and attention from the

military offensive abroad to the legal defensive at home."

Johnson v. Eisentrager, 339 U.S. 763, 779 (1950). "[T]hese

cases are really indirect challenges to the actions of the U.S.

74 AL SHIMARI v. CACI INTERNATIONAL
military," Saleh, 580 F.3d at 7, and it "would be difficult to

devise more effective fettering of a field commander than to

allow" the suits the majority encourages today. See Eisentrager, 339 U.S. at 779. 

Rather than allow this court to address the merits of the

immunity question and decide once and for all whether the

demands of national security preclude this suit, the majority

prefers sending this litigation back to a lone district judge

with no more guidance than to say that he should keep his finger in the dike and avoid discovery that imperils national

security. The ringing klaxons that the Supreme Court has

sounded in this area do not permit this casual approach. By

the time this case gets back to this court for consideration of

the selfsame immunity questions that we could perfectly well

address right now, the litigation process may well have done

its damage. 

These were precisely the sort of concerns that animated the

Supreme Court’s extension of the collateral order doctrine to

appeals pertaining to qualified immunity in Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985). That case makes clear that

the touchstone of the collateral order doctrine is whether

delayed review would impose "consequences . . . not limited

to liability for money damages." Id. at 526. Yet the majority

refuses to even acknowledge that this case presents the same

distinct dangers—and worse—that merited immediate appeal

in Forsyth, preferring instead to act as if this were a typical

personal injury case. 

To justify this conclusion, the majority relies on semantics,

ignoring the Supreme Court’s instruction that the collateral

order doctrine is to be given a "practical rather than a technical construction." Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949). 

First, the majority relies on a literal reading of the dictum

that collateral appeals are reserved for "explicit statutory or

AL SHIMARI v. CACI INTERNATIONAL 75
constitutional guarantee[s] that trial will not occur." Midland

Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989). The

majority cites this lonely line for the sweeping and staggering

conclusion that the interests protected by Boyle and Saleh are

"ipso facto, not immunity." Ante at 25. But the Supreme Court

has recognized that "explicit statutory or constitutional guarantee[s]" do not describe the whole of the collateral order

doctrine. Mitchell v. Forsyth stands as an example of how

"explicitness may not be needed for jurisdiction" to hear a

collateral appeal. Digital Equip., 511 U.S. at 876. What differentiates both qualified immunity and law-of-war immunity

from the mass of claims that do not merit immediate review

is their "good pedigree in public law." Id. In other words,

these immunities are distinct because although the interests

they protect are not specifically enshrined in legislative text,

they are nonetheless vital to the protection of the common

good, and serve more than the mere interest of a single individual in a favorable judgment. 

Second, the majority examines Boyle with a microscopic

eye, honing in on the fact that the case uses the word "liability" rather than "immunity." See ante at 25. First, this observation is not even correct—both the majority and the dissent

in Boyle also describe the result as "immunity." See, e.g.,

Boyle, 487 U.S. at 510 ("contractor immunity"); id. at 523

(Brennan, J., dissenting) ("contractor immunity"). Second,

and more important, however, the Supreme Court has

instructed that the courts of appeals should not "play word

games with the concept of a ‘right not to be tried.’" Midland

Asphalt, 489 U.S. at 801. The majority recognizes this principle when convenient, see ante at 20 (quoting Midland

Asphalt, 489 U.S. at 801), but chooses to ignore it when parsing Boyle with exegetic precision, see ante at 25-26. All that

is relevant to the inquiry before us is that the rationale for

Boyle was the same desire to avoid the "inhibition of discretionary action" that made immediate appeals necessary in

Mitchell v. Forsyth. Compare Boyle, 487 U.S. at 511-13, with

Forsyth, 472 U.S. at 525-26. 

76 AL SHIMARI v. CACI INTERNATIONAL
Given the fact that these cases simply bristle with novel,

unprecedented questions, their duration is likely to be measured in years. It will in all likelihood be a long time indeed

before they ever again reach the court of appeals, especially

in view of the fact that the vote here will operate as a disincentive for any future certified appeals under 28 U.S.C.

§ 1292(b). District courts have been given a signal from this

court that we do not want to be bothered by these appeals no

matter how significant the issues might be. Today’s opinion

gives the district courts a green light to plunge without a scintilla of direction into the intractable difficulties and significant

pitfalls of this litigation. The danger is precisely that which

the collateral order doctrine is meant to forestall, namely the

expenditure of years of litigation involving a succession of

national security concerns in cases that plainly should be dismissed at the very outset. See Will, 546 U.S. at 353; Gough

v. Perkowski, 694 F.2d 1140, 1145 (9th Cir. 1982). If the collateral order doctrine has no role in saving resources and sparing wasted efforts in a context such as this, then I fear it has

been largely eviscerated in those situations where it would be

of most use. 

I recognize that people on both sides of these questions

have the noblest intentions in mind, but we should not be

oblivious to the profound changes that are occurring. It was

once the case that judges of all persuasions went to great

lengths to restrain themselves from entering theatres of armed

conflict with prescriptions of their own, and this was true

whether the conflict was regional or worldwide in its dimensions. See, e.g., Holtzman v. Schlesinger, 414 U.S. 1304,

1309-10, 1315 (1973) (Marshall, Circuit Justice) (refusing to

review air operations over Cambodia because, in part, "Justices of this Court have little or no information or expertise"

with regard to sensitive military decisions and "are on treacherous ground indeed when [they] attempt judgments as to

[the] wisdom or necessity" of executive military action);

Eisentrager, 339 U.S. 763 (World War II); Ex parte Quirin,

317 U.S. 1 (1942) (World War II); The Prize Cases, 67 U.S.

AL SHIMARI v. CACI INTERNATIONAL 77
(2 Black) 635 (1863) (The Civil War). But that era is ending.

Perhaps it shall end, but how it ends is all important and I hate

to see it pass not through law but through judicial ukase. As

a matter of policy, one may prefer these suits go forward, but

as a matter of law, they should be forthwith dismissed. 

Under the majority’s view of pertinent precedent, an officer

denied qualified immunity for a wrongful arrest would be

entitled to an immediate appeal of that decision, but the

weighty questions of war and wartime policy at issue here

must take their turn at the back of the line. What stands to be

"irretrievably lost in the absence of an immediate appeal,"

Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 431 (1985),

is whether decisions as to how America protects herself can

be scrutinized through novel applications of extraterritorial

causes of action unauthorized by any body charged by our

charter with protection of this country’s most vital security

concerns. In allowing these suits to proceed, the majority has

asserted for itself the responsibility of all others in our system:

the right of Congress to authorize private tort actions challenging combatant activity overseas; the right of the executive

to control wartime operations through its contractual and

criminal law prerogatives; the right of the states not to assent

to the extraterritorial application of their law; and the right

(though not of constitutional dimension) of litigants and district courts to some notion of where this brave new world will

lead. Perhaps this litigation is simply one of those small and

tiny steps that weaken America only by increments and erode

our constitutional structure only by degree. But I think this

understates the matter. The touchstone of the collateral order

doctrine is whether a trial "would imperil a substantial public

interest" or "some particular value of a high order." Will, 546

U.S. at 352. To some questions the answers should be so

apparent as not to require iteration, and so it is here. 

Judge Niemeyer and Judge Shedd have indicated that they

join this opinion. 

78 AL SHIMARI v. CACI INTERNATIONAL
NIEMEYER, Circuit Judge, dissenting:

The majority today disregards controlling Supreme Court

precedents and belittles the gravity of the issues presented in

these cases, purporting to find comfort in its narrow application of the collateral order doctrine. Its effort is regrettably

threadbare.

Military contractors performing work in the Iraqi war zone

under the command and control of the United States military

have invoked our jurisdiction, claiming immunity from tort

suits brought by foreign nationals detained as part of the war

effort. As a matter of convenience, the majority ducks making

a decision on this issue of greatest importance to the public

interest because it feels that discovery and further district

court proceedings would assist it in making a decision. But in

giving that as a reason, the majority fails to follow the

Supreme Court’s command in Behrens v. Pelletier, 516 U.S.

299 (1996), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), that

we hear such claims of immunity now, simply on the basis of

the complaint.

It is simply too easy to claim, as does the majority, that

unresolved facts bar consideration now of the defendants’

immunity claims. There are always unresolved facts. Without

any explanation, the majority fails to recognize that the undisputed facts of the plaintiffs’ claims alone allow a court to rule

on the defendants’ immunity claims as a matter of law.

It would appear that only the Supreme Court can now fix

our wayward course.

* * *

The plaintiffs in these cases are Iraqi citizens, who were

seized in Iraq and detained by the U.S. military in Abu Ghraib

prison and other military prisons in Iraq. They commenced

these actions under state tort law and the Alien Tort Statute

AL SHIMARI v. CACI INTERNATIONAL 79
("ATS"), 28 U.S.C. § 1350, for alleged injuries sustained

from their mistreatment in prison at the hands of the defendants, who were U.S. military contractors, and of the military

personnel themselves. As contractors hired by the U.S. military and under its control during the course of the war effort,

the defendants in these two cases have asserted various immunities from liability and suit. They claim that the plaintiffs’

claims are barred by (1) derivative sovereign immunity or

derivative absolute immunity, as set forth in Mangold v. Analytic Services, Inc., 77 F.3d 1442 (4th Cir. 1996); (2) immunity from tort liability in a war zone, as recognized under

Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), cert.

denied, 131 S. Ct. 3055 (2011); and (3) law-of-war immunity,

as recognized by the Supreme Court in Dow v. Johnson, 100

U.S. 158 (1880). On the district courts’ rejection of these

claims of immunity or their refusal to grant immunity on

motions filed under Rules 12(b)(1) and 12(b)(6), the defendants filed these interlocutory appeals.

The majority refuses to address whether the defendants

enjoy any of the immunities asserted, holding that the district

courts’ decisions made on Rule 12(b)(1) and Rule 12(b)(6)

motions are not final appealable orders and that we do not

have appellate jurisdiction. With that decision, the majority

subjects the defendants to litigation procedures, to discovery,

and perhaps even to trial, contrary to the deep-rooted policies

inherent in these immunities.

I would reject each of the reasons given by the majority for

not deciding the immunity issues at this stage of the case and

conclude that we undoubtedly have appellate jurisdiction now

to consider them under the well-established principles of

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541

(1945), Behrens v. Pelletier, 516 U.S. 299 (1996), and their

progeny. Cohen authorizes the immediate appeal under 28

U.S.C. § 1291 of important and collateral interlocutory orders

that "have a final and irreparable effect on the rights of the

parties." 337 U.S. at 545. And Behrens and Iqbal clearly

80 AL SHIMARI v. CACI INTERNATIONAL
establish that these appeals fit comfortably with the Cohen

collateral order doctrine because the denial of immunity "at

the motion-to-dismiss stage of a proceeding is a ‘final decision’ within the meaning of § 1291." Iqbal, 556 U.S. at 672

(citing Behrens, 516 U.S. at 307).

Each of the majority’s reasons for denying review now is

demonstrably flawed. In rejecting the right to appeal the district courts’ denials of the derivative absolute immunity

described in Mangold, the majority ignores well-established

precedent that a district court’s denial of an immunity from

suit based on the facts as alleged in the complaint is a final,

conclusive order that is immediately appealable as a collateral

order. And in rejecting the right to appeal rulings on Saleh

and law-of-war immunities, the majority rests heavily on a

distinction between an immunity that provides "an insulation

from liability" and "an immunity from suit," concluding that

the immunities in this case only protect defendants from civil

liability. This analysis misses the point, however. The

Supreme Court has found orders denying immunity in its

common law sense to be appealable by examining the function performed by parties claiming immunity, the interference

with that function a denial of immunity would occasion, and

the public interest. In reaching its conclusion, the majority

fails to undertake this analysis or recognize the substantial

government interest underlying these immunities, an interest

with deep roots in the common law.

If there ever were important, collateral decisions that would

qualify under Cohen as reviewable final decisions, the district

courts’ denials of immunity in these cases are such decisions.

The defendants in these cases were engaged by the U.S. military to assist in conducting interrogations under the command

and control of U.S. military personnel, and the decisions

about the scope and nature of these interrogations were an

integral part of the military’s interests. Moreover, the military

desperately needed to receive contractor assistance in its interrogations because of a substantial shortage of personnel.

AL SHIMARI v. CACI INTERNATIONAL 81
Thus, the interrogations were a major component of the war

effort, designed to gather military intelligence. These strong

public interests merit our consideration of the federal common

law immunities claimed by the defendants as protection from

any civil suit and from any potential civil liability under state

tort law.

Because we have appellate jurisdiction to address one or all

of the forms of immunity claimed by the defendants, we

would, at the outset, be required to decide our subject matter

jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 94 (1998). When considering our jurisdiction, it is

apparent that we, as well as the district courts, lack authority

under Article III to entertain the actions because they present

a nonjusticiable political question.

Accordingly, I would dismiss these appeals and remand

them with orders to dismiss the cases as nonjusticiable

attempts to engage the judiciary in questions reserved by the

Constitution for Congress and the Commander-in-Chief to

resolve.

I

In 2003, a multi-national force, led by the United States and

Great Britain, invaded Iraq. During the course of the war, the

U.S. military seized and detained Iraqi citizens suspected of

being enemy combatants or thought to have value in possessing useful intelligence regarding the insurgency or other terrorist activities. These detainees were imprisoned in Abu

Ghraib prison and other prisons throughout Iraq. Although

these prisons were operated by the U.S. Army in an active

war zone, "a severe shortage" of military intelligence personnel "prompt[ed] the U.S. government to contract with private

corporations to provide civilian interrogators and interpreters." J.A. 408. These contractors included CACI Premier

Technology, Inc., a subsidiary of CACI International, Inc.

(collectively herein, "CACI") and Titan Corporation, now L82 AL SHIMARI v. CACI INTERNATIONAL
3 Services, Inc. ("L-3"). CACI and L-3 were required to comply with Department of Defense interrogation policies and

procedures when conducting "[i]ntelligence interrogations,

detainee debriefings, and tactical questioning" of persons in

the custody of the U.S. military. J.A. 270-71. Secretary of

Defense Donald Rumsfeld testified before Congress that the

linguists and interrogators provided by contractors at Abu

Ghraib were "responsible to [the military intelligence] personnel who hire[d] them and ha[d] responsibility for supervising

them." Hearing of the U.S. Senate Committee on Armed Services 44 (May 7, 2004). Acting Secretary of the Army Les

Brownlee also testified that civilian linguists and interrogators

"work[ed] under the supervision of officers or noncommissioned officers in charge of whatever team or unit they are

on." Id.

The plaintiffs in these two actions are individuals who were

seized and detained by the military at Abu Ghraib prison and

other military-controlled prisons "during a period of armed

conflict" and "in connection with hostilities." Second

Amended Compl. ("Complaint") ¶ 497 (Al-Quraishi); Second

Amended Compl. ("Complaint") ¶ 142 (Al Shimari). In their

complaints, they allege various acts of assault, sexual assault,

humiliation, and inhumane treatment at the hands of the

defendants, their employees, and their co-conspirators in the

military. They allege that during the course of providing interrogation and translation services for the U.S. military,

employees of the defendant corporations conspired with each

other and with members of the military to commit torture,

assault, battery, and war crimes and that their conduct violated the terms of the contracts that CACI and L-3 had with

the U.S. military, the provisions of the U.S. Army field manual, as well as United States law, state law, and the Geneva

Convention. Complaint ¶¶ 418, 430, 450, 454, 463, 470 (AlQuraishi); Complaint ¶¶ 67, 88, 94, 98, 107, 108 (Al Shimari). In addition, they allege that the defendants conspired

with each other and with members of the U.S. military to

cover-up the misconduct and hide it from the authorities.

AL SHIMARI v. CACI INTERNATIONAL 83
The complaints purport to state causes of action under various state-defined torts and under the Alien Tort Statute, naming as defendants CACI, L-3, and Adel Nakhla, an individual

employee of L-3, and they demand compensatory damages

for physical, economic, and mental injuries; punitive damages

to punish defendants for engaging in human rights abuses and

to deter similar behavior in the future; and attorney’s fees.

Complaint ¶¶ 2, 468-559, 560 (Al-Quraishi); Complaint ¶¶ 2,

113-204, 205; see also Al Shimari v. CACI Premier Tech.,

Inc., 657 F. Supp. 2d 700 (E.D. Va. 2009); Al-Quraishi v.

Nakhla, 728 F. Supp. 2d 702 (D. Md. 2010).

The defendants filed motions to dismiss all of the claims

pursuant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6), alleging that the claims were (1) nonjusticiable

because they presented a political question, relying on Tiffany

v. United States, 931 F.2d 271 (4th Cir. 1991); (2) barred by

derivative sovereign or absolute official immunity, as set forth

in Mangold v. Analytic Services, Inc., 77 F.3d 1442 (4th Cir.

1996); (3) preempted and displaced by the federal common

law government contractor defense, as set forth in Saleh v.

Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), cert. denied, 131 S.

Ct. 3055 (2011); and (4) barred by the law-of-war immunity

recognized by the Supreme Court in Dow v. Johnson, 100

U.S. 158 (1880). With respect to the state law tort claims,

both district courts below rejected all of these defenses and

denied the motions to dismiss. And with respect to the ATS

claims, the Al Shimari court dismissed, concluding that it

lacked jurisdiction, 657 F. Supp. 2d at 725-728, while the AlQuraishi court denied the motion to dismiss, 728 F. Supp. 2d

at 741-60.

A panel of this court reversed the district courts’ orders in

two opinions released on the same day, concluding that the

district courts should have dismissed the claims on the basis

of the government contractor defense recognized in Saleh. AlQuraishi v. L-3 Servs., Inc., 657 F.3d 201 (4th Cir. 2011); Al

Shimari v. CACI Int’l, Inc., 658 F.3d 413 (4th Cir. 2011). On

84 AL SHIMARI v. CACI INTERNATIONAL
the plaintiffs’ motions, we granted a rehearing en banc and

consolidated the appeals. At our invitation, the United States

also participated as an amicus curiae, filing a brief and participating in oral argument on January 27, 2012. The majority

now dismisses the appeals for a lack of final appealable orders

under 28 U.S.C. § 1291 and thus allows the litigation to proceed in the district courts.

II

Section 1291 of Title 28, authorizing "appeals from all final

decisions of the district courts of the United States," codifies

the "final judgment rule," representing "Congress’ determination since the Judiciary Act of 1789 that as a general rule

‘appellate review should be postponed . . . until after final

judgment has been rendered by the trial court.’" Kerr v. U.S.

Dist. Ct. for the N. Dist. of Cal., 426 U.S. 394, 403 (1976)

(quoting Will v. United States, 389 U.S. 90, 96 (1967)). Thus,

the Supreme Court has emphasized "the general rule that a

party is entitled to a single appeal, to be deferred until final

judgment has been entered." Mohawk Indus. v. Carpenter,

130 S. Ct. 599, 605 (2009) (quoting Digital Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 868 (1994)).

Falling within the category of appealable final decisions

under § 1291 are certain collateral orders that are "other than

final judgments" but "have a final and irreparable effect on

the rights of the parties." Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 545 (1949). Under this "practical construction" given to the statutory language "final decisions,"

"[t]he authority of the Courts of Appeals to review all final

decisions of the district courts" is construed to confer 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 v. Hallock, 546 U.S. 345, 347 (2006) (quoting

Digital Equip., 511 U.S. at 867) (internal citation omitted).

Thus, to be a final, appealable order, a collateral order must

AL SHIMARI v. CACI INTERNATIONAL 85
satisfy three requirements: (1) it must "conclusively determine

the disputed question"; (2) it must "resolve an important issue

completely separate from the merits of the action"; and (3) it

must be "effectively unreviewable on appeal from a final

judgment." Johnson v. Jones, 515 U.S. 304, 310 (1995) (internal quotation marks omitted).

The Supreme Court has noted that the "collateral order doctrine" is of "modest scope," Hallock, 546 U.S. at 350, and

should not be applied "to swallow the general rule that a party

is entitled to a single appeal," Mohawk Indus., 130 S. Ct. at

605 (quoting Digital Equip., 511 U.S. at 868). But, equally

important, the Court has noted that the doctrine is necessary

and appropriate for cases involving a "particular value of 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." Hallock,

546 U.S. at 352-53. In this vein, the Supreme Court and our

court have applied the collateral order doctrine to review

interlocutory orders denying defendants’ motions to dismiss

on the basis of numerous asserted immunities. See, e.g.,

Abney v. United States, 431 U.S. 651 (1977) (double jeopardy

claim); Helstoski v. Meanor, 442 U.S. 500 (1979) (Speech

and Debate Clause immunity); Nixon v. Fitzgerald, 457 U.S.

731 (1982) (absolute official immunity); Mitchell v. Forsyth,

472 U.S. 511 (1985) (qualified immunity); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139

(1993) (Eleventh Amendment immunity); Osborn v. Haley,

549 U.S. 225 (2007) (Westfall Act immunity certification);

Republic of Iraq v. Beaty, 556 U.S. 848 (2009) (foreign sovereign immunity); Permanent Mission of India to the United

Nations v. City of New York, 551 U.S. 193 (2007) (same);

Roberson v. Mullins, 29 F.3d 132 (4th Cir. 1994) (absolute

legislative immunity); Mangold, 77 F.3d 1442 (derivative

immunity for a contractor).

Some or all of the defendants’ claims of immunity in these

cases are thus entitled to our review under the collateral order

doctrine, and I address them seriatim.

86 AL SHIMARI v. CACI INTERNATIONAL
A. Derivative Absolute Immunity

Immunity generally protects government officials from liability based on their office, their function, and the public

interest. And when litigation is commenced to enforce liability against them, the officials are, if the public interest is sufficiently strong, also protected from defending the suit itself,

even when the official is accused of misconduct. See Nixon,

457 U.S. at 752 (noting that immunity is afforded when it is

in the public interest to provide an official "the maximum

ability to deal fearlessly and impartially with duties of his

office" (internal quotation marks omitted). Of course, each

particular immunity is defined by the official claiming it, by

his function, and by the particular public interest sought to be

protected.

In this case, the defendants claim, among other immunities,

derivative absolute immunity based on their role in carrying

out the U.S. military’s mission in the Iraq war zone under the

ultimate direction and control of the military. As alleged in

the complaints, the defendants were retained by the U.S. military to perform interrogation and translation services in the

interrogation of military detainees in military prisons throughout the Iraqi war zone. Complaint ¶¶ 8, 435, 436, 442 (AlQuraishi); Complaint ¶¶ 1, 10, 64 (Al Shimari). Indeed, the

complaints assert that the defendants were functioning on

behalf of the U.S. military and in conspiracy with military

personnel "during a period of armed conflict, in connection

with hostilities." Complaint ¶ 497 (Al-Quraishi); Complaint ¶

142 (Al Shimari).

Regardless of whether these facts are ultimately proved,

they were alleged by the plaintiffs in their complaints and

admitted by the defendants in asserting immunity. And on the

basis of these facts, both district courts below conclusively

determined that the defendants were not entitled to the derivative immunity recognized in Mangold. In one decision, the

district court stated that it "reject[ed] both arguments" made

AL SHIMARI v. CACI INTERNATIONAL 87
by the defendant that it was immune under the "doctrine of

derivative absolute official immunity" because it could not

"determine the scope of Defendants’ government contract, the

amount of discretion it afforded Defendants in dealing with

detainees, or the costs and benefits of recognizing immunity

in this case without examining a complete record after discovery has taken place." Al Shimari v. CACI Premier Tech., Inc.,

657 F. Supp. 2d 700, 714 (E.D. Va. 2009) (emphasis added).

In the other decision below, the district court concluded

that "relying on the information in the Complaint, it is clearly

too early to dismiss Defendants on the basis of derivative sovereign immunity," explaining that "the contract between [the

contractor] and the military is not before the Court at this

time," making it impossible to "determin[e] both the scope of

the contract and whether that scope was exceeded." AlQuraishi v. Nakhla, 728 F. Supp. 2d 702, 735 (D. Md. 2010).

Thus, both of these opinions take the facts as alleged by the

plaintiffs in their complaints as true and conclude that the

defendants were not entitled to derivative immunity.

As both the Supreme Court’s precedents and our precedents

clearly establish, when a district court refuses to grant an

immunity from suit on the basis of the facts alleged in a complaint, the refusals are immediately appealable. Whether they

are rightly or wrongly decided, we have jurisdiction to review

such rulings to protect the defendants from the costs and distraction of litigation, which undermine the public interest in

protecting the governmental function of war zone interrogations. The district courts’ refusals to recognize this immunity

can undoubtedly be immediately appealed under the collateral

order doctrine. See Ashcroft v. Iqbal, 556 U.S. 662 (2009);

Behrens v. Pelletier, 516 U.S. 299, 303 (1996); Jenkins v.

Medford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc);

McVey v. Stacy, 157 F.3d 271, 275 (4th Cir. 1998).

The majority does not take issue with the defendants’ claim

of immunity under the doctrine of derivative absolute immu88 AL SHIMARI v. CACI INTERNATIONAL
nity, nor does it take issue with the principle that this immunity protects defendants from suit. Ante, at 35 ("Mangold

immunity confers upon those within its aegis the right not to

stand trial"). Rather, the majority defers any ruling on the

immunity because the "record [was not] sufficiently developed through discovery proceedings to accurately assess any

claim, including one of immunity." As the majority explains:

The Maryland and Virginia district courts each perceived that the validity of such invocations [of

immunity] depended in significant part on whether

the contractor involved was acting within the scope

of its agreement with the United States. One could

hardly begin to answer that question without resort

to any and all contracts between the appellants and

the government pertinent to the claims, defenses, and

related matters below.

Ante, at 29-30. Thus, the majority concludes that because the

district courts deferred ruling on derivative immunity until the

record was more developed, their decisions lack finality and

fail the requirements of Hallock, 546 U.S. at 349-50, that collateral orders be conclusively determined. 

The majority fails to recognize, however, that its conclusions are contrary to well-established Supreme Court and

Fourth Circuit precedents and that the district courts’ decisions in refusing to grant immunity on motions to dismiss

based on Rules 12(b)(1) and 12(b)(6) are appealable final

determinations under the collateral order doctrine.

In Behrens, 516 U.S. at 303, the district court had entered

an order denying, without prejudice, a motion to dismiss

based on a defense of qualified immunity, giving as its reason

the fact that it was premature because of the lack of discovery.

Both the Ninth Circuit in the first appeal taken and, eventually

the Supreme Court, recognized that the district court’s order

deferring consideration pending discovery was a final deterAL SHIMARI v. CACI INTERNATIONAL 89
mination of the immunity defense, subject to immediate

appeal under the collateral order doctrine. See Pelletier v.

Fed. Home Loan Bank of San Francisco, 968 F.2d 865, 871

(9th Cir. 1992); Behrens, 516 U.S. at 308 ("Whether or not a

later summary judgment motion [on the basis of immunity] is

granted, denial of a motion to dismiss is conclusive as to this

right" (emphasis added)). As the Behrens Court noted, at the

motion-to-dismiss stage of a proceeding, "it is the defendant’s

conduct as alleged in the complaint that is scrutinized."

Behrens, 516 U.S. at 309 (emphasis added); see also Mitchell

v. Forsyth, 472 U.S. 511, 529 n.9 (1985) ("[W]e emphasize

at this point that the appealable issue is a purely legal one:

whether the facts alleged . . . support a claim of violation of

clearly established law" (emphasis added)).

More recently, in Iqbal, the Supreme Court reaffirmed

Behrens and its principle that "a district court’s order rejecting

qualified immunity at the motion-to-dismiss stage of a proceeding is a ‘final decision’ within the meaning of § 1291."

Iqbal, 556 U.S. at 672 (emphasis added).

Until this decision by the majority, we have applied the reasoning of Mitchell and Behrens faithfully and consistently,

holding that the denial of a motion to dismiss based on an

immunity that is properly characterized as an immunity from

suit, even if on the basis that more discovery is necessary, is

a collateral order over which we have jurisdiction under 28

U.S.C. § 1291. In Jenkins v. Medford, 119 F.3d 1156, 1159

(4th Cir. 1997) (en banc), we declared that we had jurisdiction

to review a district court’s denial of a motion to dismiss based

on qualified immunity even though the district court had

refused to rule on immunity at that stage because an answer

had not yet been filed. Without qualification, we stated that

"[w]hen a district court denies a motion to dismiss that is

based on qualified immunity . . . the action is a final order

reviewable by this court." Id.; see also Winfield v. Bass, 106

F.3d 525, 530 (4th Cir. 1997) (en banc) (finding jurisdiction

to review an immunity claim "accepting the facts as the dis90 AL SHIMARI v. CACI INTERNATIONAL
trict court viewed them," even though factual issues

remained).

Again, in McVey, 157 F.3d at 275, we applied Behrens and

concluded that we had jurisdiction over the denial of qualified

immunity even though we "recognized that the district court’s

order essentially deferring a ruling on qualified immunity

would appear, at first blush, to amount to a routine procedural

order that is generally not appealable." As we reasoned:

[I]n rejecting the immunity defense "at this early

stage," the district court necessarily subjected the

commissioners to the burden of further trial procedures and discovery, perhaps unnecessarily. [The

district court’s] order implicitly ruled against the

commissioners on . . . legal questions . . . . These

questions do not raise factual questions concerning

the defendants’ involvement, which would not be

appealable . . . . On the contrary, they are answered

with the facts of the complaint assumed to be true as

a matter of law. They are therefore the very questions that Mitchell held were appealable.

Id. at 276 (emphasis added) (internal citations omitted).

Although the majority acknowledges these precedents, it

attempts to distinguish them by noting that Behrens "confers

jurisdiction of these appeals only if the record at the dismissal

stage can be construed to present a pure issue of law." Ante,

at 32. It finds that in these cases "those facts that may have

been tentatively designated as outcome-determinative are yet

subject to genuine dispute, that is, a reasonable factfinder

could conclude in favor of either the plaintiffs or the defendants," and thus we lack jurisdiction because the "courts’

immunity rulings below turn[ed] on genuineness." Ante, at

34-35. The majority’s new "genuineness" addition to the collateral order doctrine, however, finds no support in the

Supreme Court’s discussion of collateral order immunity

AL SHIMARI v. CACI INTERNATIONAL 91
appeals. To the extent the majority is simply stating the wellestablished rule that a collateral order immunity appeal must

present a purely legal question, there can be no debate that the

appeals in the cases before us present just such a question.

Mitchell, Behrens, and Iqbal establish without question that

these appeals present a purely legal question because we are

asked to decide whether the defendants are entitled to derivative immunity on the basis of the facts as alleged by the plaintiffs in their complaints. The possibility that a factfinder might

construe these facts in favor of the defendants at a later time

does not, by some heretofore unknown legal device, create a

factual dispute that deprives us of jurisdiction at the motionto-dismiss stage. As a matter of logical necessity, there can be

no genuine issue of material fact when we are reviewing only

the facts as alleged by the plaintiff in the complaint. The

majority simply ignores Mitchell’s statement that "the appealable issue is a purely legal one: whether the facts alleged"

support a claim of immunity. 472 U.S. at 528 n.9.

The majority’s claim that it could only discern a "pure issue

of law" if it "were of the opinion, as the dissenters evidently

are, that persons similarly situated to the appellants are inevitably and invariably immune from suit," ante, at 32-33, demonstrates the fundamental error of its approach. If the majority

believes that the defendants cannot establish their claims to

immunity from suit, accepting as true the facts in the complaint, then it should deny the derivative immunity defense on

the merits and allow the district courts to proceed and develop

a fuller factual record. Indeed, Behrens considers this very

possibility, allowing the defendants to pursue a second immunity appeal after the denial of summary judgment even if they

have already unsuccessfully appealed the district court’s

denial of their motion to dismiss. 516 U.S. at 305-08. Surprisingly, the majority admits that we have jurisdiction to review

whether "facts that are undisputed or viewed in a particular

light are material to the immunity calculus," ante, at 32, but

then mysteriously concludes that we cannot determine

whether these same facts establish immunity. Thus, under the

92 AL SHIMARI v. CACI INTERNATIONAL
majority’s novel approach to the collateral order doctrine, we

have jurisdiction to review whether undisputed facts are "material" to a question of immunity, but we have no jurisdiction

to review the immunity determination itself. Such a rule finds

absolutely no legal support.

Whether it is to avoid the difficulty presented by the political question doctrine or to evade the other difficult questions

the merits of these important cases present, the majority

chooses to decimate existing collateral order jurisprudence by

finding a "genuine" dispute of material fact in a case in which

we are asked to review district court decisions denying derivative immunity based only on undisputed facts, those alleged

in the complaint. See McVey, 157 F.3d at 276 ("These questions do not raise factual questions concerning the defendants’

involvement . . . . On the contrary, they are answered with the

facts of the complaint assumed to be true as a matter of law.

They are therefore the very questions that Mitchell held were

appealable"). The majority’s approach is manifestly contrary

to the Supreme Court’s collateral order immunity jurisprudence.

Rather than following these binding precedents of the

Supreme Court and our court, the majority chooses to rely on

a distinguishable Fifth Circuit decision that refused to consider a claim of immunity because it was neither "substantial"

nor "colorable." See Martin v. Halliburton, 618 F.3d 476, 484

(5th Cir. 2010). The Martin court, however, did not decide the

issue before us today. In that case, regulations governing the

contractor explicitly stated that "[c]ontractors will not be used

to perform inherently governmental functions" and "expressly

preclude[d] Defendant [contractors] from engaging in discretionary conduct," which was a prerequisite for finding derivative immunity. See id. at 484. Thus, the language of the

regulations themselves made the defendants’ contentions that

they had engaged in the performance of governmental functions frivolous and unsubstantial.

AL SHIMARI v. CACI INTERNATIONAL 93
Under our decision in Mangold and its progeny, there can

be no serious argument that, based on the complaint, the

defendants in these cases failed to present a substantial basis

for the immunity. See Mangold, 77 F.3d at 1442 (holding that

government functions performed by private contractors are

protected by immunity both for the government and the contractor); see also Murray v. Northrop Grumman Info. Tech.,

Inc., 444 F.3d 169, 175 (2d Cir. 2006) (government contractor

absolutely immune from tort liability for performing

contracted-for governmental function, citing Mangold); Pani

v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71-73 (2d Cir.

1998) (same); Midland Psychiatric Assocs., Inc. v. United

States, 145 F.3d 1000, 1005 (8th Cir. 1998) (common law

official immunity barred tort suit against Medicare insurer).

This immunity protects contractors from suit where such an

immunity is necessary to protect a discretionary government

function and the benefits of immunity outweigh its costs. For

example, in Mangold, we held that "the interest in efficient

government" justified granting a private contractor immunity

for statements made during an official investigation of government procurement practices. 77 F.3d at 1447-48.

And recently, the Supreme Court has reaffirmed the need

to protect those who perform government functions with

immunity regardless of whether they are public employees,

such as military officers, or private individuals retained to

perform the same function. See Filarsky v. Delia, 132 S. Ct.

1662, 1663 (2012) ("[T]he common law did not draw a distinction between public servants and private individuals

engaged in public service in according protection to those carrying out government responsibilities").

But the majority never disputes this, nor even discusses

why the allegations in the complaint present only a frivolous

and unsubstantial claim to derivative immunity. Instead, it

frames the dispositive question as one of finality. In so doing,

the majority ignores the fundamental and well-established

principle that a district court’s denial of a motion to dismiss

94 AL SHIMARI v. CACI INTERNATIONAL
based on an immunity from suit is a final, immediately

appealable collateral order. Whether discovery could help

make the issue more clear or whether the district courts

wanted a fuller record before ruling on the merits of immunity

is irrelevant. The defendants claim entitlement to be protected

from the litigation process, and the court’s refusal to grant the

immunity denied them that protection and was therefore an

appealable decision under Mitchell, Behrens, Iqbal, Jenkins,

Winfield, and McVey. It is most regrettable that the majority

so readily tramples on these precedents, which clearly provide

us with appellate jurisdiction at this stage of the proceedings

to consider the substantial claims of immunity asserted by the

defendants on the basis of the facts alleged in the complaint.1

1The majority also inexplicably dismisses L-3’s arguments relating to

the Alien Tort Statute in a footnote, claiming that they deserve no different

analysis than do the state law claims. Ante, at 35-36 n.19. But in so concluding, the majority fails to recognize that plaintiffs’ Alien Tort Statute

claims, of jurisdictional necessity, include allegations that the defendants’

allegedly abusive conduct was the conduct of the United States and therefore any claim of derivative immunity would have to be substantial as a

matter of law. 

Although the district court in Al Shimari dismissed the plaintiffs’ claims

under the ATS, the district court in Al-Quraishi failed to dismiss the ATS

claims against L-3 and its employee. L-3 contends on appeal that the

denial of its motion to dismiss the ATS claims on account of derivative

immunity, among other defenses, was an error. L-3’s claim to derivative

absolute immunity in the ATS context is thus undeniably "substantial." In

Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985), plaintiffs

alleged that defendants had violated the law of nations by engaging in

"summary execution, murder, abduction, torture, rape, wounding, and the

destruction of private property and public facilities," as part of a conspiracy arising out of the U.S. government’s actions in Nicaragua. Id. at 205.

In a unanimous opinion authored by then-Judge Scalia and joined by thenJudge Ginsburg, the D.C. Circuit found that "[i]t would make a mockery

of the doctrine of sovereign immunity" to permit the ATS claims to proceed based on "actions that are, concededly and as a jurisdictional necessity, official actions of the United States." Id. at 207. Like the allegations

in Sanchez-Espinoza, plaintiffs must, to maintain their ATS claims, allege

that the actions of the defendants were actions of the United States as a

jurisdictional necessity. See Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir.

AL SHIMARI v. CACI INTERNATIONAL 95
B. Combatant Activities Immunity under Saleh

The defendants also asserted an immunity from suit based

on the combatant activities exception to the Federal Tort

Claims Act and the D.C. Circuit’s application of that immunity in Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), cert.

denied, 131 S. Ct. 3055 (2011). This immunity, applied to

military contractors, is based on the United States’ sovereign

immunity for claims arising out of combatant activities of the

military during time of war. See 28 U.S.C. § 2680(j).

Again, in response to the allegations of the plaintiffs’ complaints, the defendants claimed that their immunity is based

on the United States’ interests, as embodied in the combatant

activities exception and as applied in Saleh. Under this immunity, when claims arise out of federal combatant activities, the

federal interests preempt the application of state tort law to its

contractors and then replace state tort law with federal common law, which recognizes an immunity for claims against

1995) ("[T]orture and summary execution . . . are proscribed by international law only when committed by state officials or under color of law").

To establish jurisdiction for their ATS claims alleging "war crimes," the

plaintiffs must at the very least allege that the defendants in this case were

"parties" to the hostilities in Iraq, id., and may have to demonstrate state

action as well if the court considered war crimes to violate international

norms only to the extent they were committed by combatants or state

actors, see Sosa v. Alvarez-Machain, 542 U.S. 692, 731-38 (2004); TelOren v. Libyan Arab Republic, 726 F.2d 774, 791-95 (D.C. Cir. 1994)

(Edwards, J., concurring). 

Thus, the defendants’ claims to derivative immunity as to the ATS

claims in Al-Quraishi are obviously substantial because plaintiffs must

allege as a jurisdictional necessity either state action or that the defendants

were "parties" to the armed conflict in Iraq. Both allegations add further

weight to the contention that the defendants were performing a state function and thus entitled to the same immunities afforded public officials performing that function. See Filarsky, 132 S. Ct. at 1663. I therefore fail to

understand how these defenses can be dismissed as so insubstantial and

frivolous that we lack jurisdiction even to entertain them. 

96 AL SHIMARI v. CACI INTERNATIONAL
contractors arising out of combatant activities. The United

States’ interest in its contractors’ performance in the course of

combatant activities grows out of the uniquely federal interest

in the unencumbered operation of military personnel and in

the "elimination of tort from the battlefield, both to preempt

state or foreign regulation of federal wartime conduct and to

free military commanders from the doubts and uncertainty

inherent in potential subjection to civil suit." Saleh, 580 F.3d

at 7 (emphasis added). "[T]he policies of the combatant activities exception are equally implicated whether the alleged tortfeasor is a soldier or a contractor engaging in combatant

activities at the behest of the military and under the military’s

control." Id. The policy to protect these interests can only be

furthered and preserved if the defense protects against potential lawsuits brought under any civilian tort law, not simply

against ultimate liability.

The district courts denied the claimed immunities. The

court in Al-Quraishi refused to recognize the unique federal

interests embodied in the combatant activities exception. AlQuraishi, 728 F. Supp. 2d at 738-39. And the court in Al Shimari simply rejected the defense as to these defendants in a

conclusory manner. Al Shimari, 657 F. Supp. 2d at 725. Both

courts thus held that the defendants were entitled to neither

the displacement of state tort law nor the application of federal common law immunizing them from suit.

The majority now refuses also to review these district court

orders, thus denying the defendants the combatant activities

immunity. It does so mainly by relying on an unexplored

labeling problem. It states conclusorily, "Boyle preemption

(and, thus, Saleh preemption) is, ipso facto, not immunity."

Ante, at 25. And again, repeating its labeling reliance, it

declares, "Saleh preemption falls squarely on the side of being

a defense to liability and not an immunity from suit." Ante, at

24. The only analysis the majority accords the issue is an

observation that immunity "derives from an explicit statutory

or constructive guarantee that trial will not occur" (internal

AL SHIMARI v. CACI INTERNATIONAL 97
quotation marks omitted), and that Boyle, "from which Saleh

preemption is derived, [did not rely] on any such explicit

guarantee." Ante, at 24. The majority’s opinion, however, neither considers what Saleh actually held in order to prove its

assertion, nor analyzes the text of the combatant activities

exception and the unique federal interests it embodies. Moreover, it assumes, without analysis, that Boyle and Saleh are

identical for purposes of its collateral order analysis.

Surely our jurisdiction to consider the district courts’ orders

cannot depend wholly on labels such as "preemption" and

"immunity." Nonetheless, if a vote on labels were critical, the

majority would have little support, as virtually every court

that has considered the government contractor defense set

forth in Boyle takes it as a two-step defense leading to immunity. Under the first step, the court preempts state tort law,

and under the second, it recognizes the federal common law

providing immunity to such contractors. See In re Katrina

Canal Breaches, 620 F.3d 455, 457 (5th Cir. 2010) (characterizing the defense recognized in Boyle as "government contractor immunity"); In re World Trade Ctr. Disaster Site

Litig., 521 F.3d 169, 196 (2d Cir. 2008) ("In Boyle, the Court

refined the requirements for a type of derivative immunity for

government military contractors" (emphasis added)); United

States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 44 n.6 (1st Cir.

1999) ("[T]he [Boyle] Court used the terminology of ‘displacement of state law’ and ‘preemption’ in determining

whether federal law should provide government contractors

with immunity from certain state-law product liability actions"

(emphasis added)); Winters v. Diamond Shamrock Chem. Co.,

149 F.3d 387, 400 (5th Cir. 1998) ("The Supreme Court set

out the test for immunity under the government contractor

defense in Boyle" (emphasis added)); Oliver v. Oshkosh Truck

Corp., 96 F.3d 992, 997 (7th Cir. 1996) ("The government

contractor defense is derived from the government’s immunity

from suit when the performance of a discretionary function is

at issue" (emphasis added)); Mangold, 77 F.3d at 1448

("Extending immunity to private contractors to protect an

98 AL SHIMARI v. CACI INTERNATIONAL
important government interest is not novel. See, e.g., Boyle[ ]"

(emphasis added)); Tate v. Boeing Helicopters, 55 F.3d 1150,

1153 (6th Cir. 1995) ("The Boyle Court held that, under certain circumstances, government contractors are immune from

state tort liability" (emphasis added)); Carley v. Wheeled

Coach, 991 F.2d 1117, 1120 (3d Cir. 1993) (noting that the

rationale that "underlies the modern government contractor

defense" is that "[a] private contractor . . . should, in some circumstances, share the sovereign immunity of the United

States" (emphasis added)); Harduvel v. Gen. Dynamics Corp.,

878 F.2d 1311, 1316 (11th Cir. 1989) ("In the military context, this [government contractor] immunity serves the further

important purpose of shielding sensitive military decisions

from scrutiny by the judiciary, the branch of government least

competent to review them" (emphasis added)).

Rather than counting labeling votes, however, we must, in

determining our appellate jurisdiction over the defendants’

claim of Saleh immunity, inquire whether the assertion of

Saleh immunity falls within the category of collateral orders

that the Supreme Court has held appealable under the collateral order doctrine.

We begin by looking to the methodology in Boyle, which

was employed by Saleh to identify the unique federal interests

in these cases. In Boyle, the Supreme Court referred to the

"displacement" of state law with federal common law, 487

U.S. at 505, 507, 512 (emphasis added), and specifically held

that "a few areas, involving ‘uniquely federal interests,’ are so

committed by the Constitution and laws of the United States

to federal control that state law is pre-empted and replaced,

where necessary, by federal law of a content prescribed

(absent explicit statutory directive) by the courts—so called

‘federal common law.’" Id. at 504 (emphasis added) (internal

citation omitted). Thus, it is the content of this federal common law that defines the rights and defenses of the government contractor defendant, not the preemption leading to

application of the federal common law. 

AL SHIMARI v. CACI INTERNATIONAL 99
In Boyle, the father of a deceased helicopter pilot sued the

helicopter’s manufacturer, a private government contractor,

under Virginia tort law, alleging that the helicopter’s escape

hatch had been defectively designed because it opened out

rather than in. Id. at 502-03. While the pilot survived the

impact of the helicopter’s crash off the coast of Virginia, he

was unable to escape because the water pressure prevented

the escape hatch from opening. The Court concluded that

"state law which holds Government contractors liable for

design defects in military equipment does in some circumstances present a ‘significant conflict’ with federal policy and

must be displaced." Id. at 512 (emphasis added).

The Boyle Court reached its conclusion through a two-step

process. First, it recognized that the subject matter of the suit

implicated "uniquely federal interests," because it involved

the "performance of federal procurement contracts," which

"border[ed] upon two areas that [the Court] ha[d] found to

involve such ‘uniquely federal interests’": (1) the rights and

obligations of the United States under its contracts, and (2)

the "civil liability of federal officials for actions taken in the

course of their duty." Id. at 504-06. In the second step, after

recognizing these interests, the Court asked whether a "significant conflict exist[ed] between an identifiable federal policy

or interest and the operation of state law," and whether "the

application of state law would frustrate specific objectives of

federal legislation." Id. at 507 (internal quotation marks and

citation omitted). The Court explained that "[t]he conflict with

federal policy need not be as sharp to justify preemption"

when a suit involves an area of "unique federal concern," but

nonetheless "conflict there must be." Id. at 507-08. The Court

then found this conflict in the discretionary function exception

to the Federal Tort Claims Act ("FTCA"), noting that it "demonstrates the potential for, and suggests the outlines of, ‘significant conflict’ between federal interests and state law in the

context of Government procurement." Id. at 511.

The Boyle case thus works the displacement of state law,

through preemption, with federal common law and then

100 AL SHIMARI v. CACI INTERNATIONAL
describes the content of the federal common law government

contractor defense, looking for that purpose to the discretionary function exception in the FTCA.

This case, however, does not involve the government contractor defense recognized in Boyle, but rather a defense based

on the combatant activities exception, a common law immunity recognized in the FTCA. See 28 U.S.C. § 2680(j) (retaining sovereign immunity for claims "arising out of the

combatant activities of the military or naval forces, or the

Coast Guard during time of war"); see also Filarsky, 132 S.

Ct. at 1665 ("[W]e ‘proceed[ ] on the assumption that

common-law principles of . . . immunity were incorporated

into our judicial system and that they should not be abrogated

absent clear legislative intent to do so’" (first alteration in

original) (quoting Pulliam v. Allen, 466 U.S. 522, 529

(1984))). The defendants in this case asked the district courts

to apply the methodology of Boyle, as the court did in Saleh,

in order to recognize the federal common law defense based

on the combatant activities exception, which is animated by

different interests than were at issue in Boyle. See Saleh, 580

F.3d at 6 ("The crucial point is that the [Boyle] court looked

to the FTCA exceptions to the waiver of sovereign immunity

in order to determine that the conflict was significant and to

measure the boundaries of the conflict" (emphasis added)).2

Saleh indeed did apply the Boyle methodology to circumstances identical to those before us. Thus the Saleh court con2The majority’s assertion that we are "repackaging for the sake of convenience the preemption defense derived from Boyle as ‘combatant activities immunity,’" ante, at 26, ignores the fact that Boyle and Saleh, though

they both apply preemption, then proceed to apply different principles of

federal common law to the issue at hand. Thus, not only are we not applying the common law applied in Boyle, we are also not repackaging anything from Boyle. Rather, we are analyzing the content of the federal

common law that the Boyle methodology instructs us to apply. Saleh analyzed the content of this law as well, and the majority simply ignores that

there is any such content in its singular focus on the "preemption" label.

AL SHIMARI v. CACI INTERNATIONAL 101
cluded that Congress intended the combatant activities

exception to "eliminat[e] . . . tort from the battlefield, both to

preempt state or foreign regulation of federal wartime conduct

and to free military commanders from the doubts and uncertainty inherent in potential subjection to civil suit." Saleh, 590

F.3d at 7 (emphasis added). The D.C. Circuit in Saleh

explained:

In the context of the combatant activities exception,

the relevant question is not so much whether the substance of the federal duty is inconsistent with a

hypothetical duty imposed by the State or foreign

sovereign. Rather, it is the imposition per se of the

state or foreign tort law that conflicts with the

FTCA’s policy of eliminating tort concepts from the

battlefield. The very purposes of tort law are in conflict with the pursuit of warfare. Thus, the instant

case presents us with a more general conflict preemption, to coin a term, "battle-field preemption":

the federal government occupies the field when it

comes to warfare, and its interest in combat is

always "precisely contrary" to the imposition of a

non-federal tort duty.

Saleh, 580 F.3d at 7. After displacing state tort law in favor

of the unique federal interests at stake, the Saleh court dismissed the complaints based on sovereign immunity.

Thus, to reject the defendants’ claim of sovereign immunity

under Saleh amounts to subjecting government contractors

engaged in the war effort of the military to suits, thereby

interfering with the very combatant activities intended to be

protected from suit by federal statutory and common law. The

government’s unique interest can only be protected and preserved if the Saleh defense to a potential suit is preserved by

our review at the outset of litigation. This is because the Saleh

immunity serves the interests of freeing officers engaged in

combatant activities from "the doubts and uncertainty inherent

102 AL SHIMARI v. CACI INTERNATIONAL
in potential subjection to civil suit." Saleh 580 F.3d at 7

(emphasis added).

Although the legislative history of the combatant activities

exception is "singularly barren," courts have long recognized

that the exception serves to exempt activities that "by their

very nature should be free from the hindrance of a possible

damage suit." Johnson v. United States, 170 F.2d 767, 769

(9th Cir. 1948) (emphasis added). In recognizing the interests

that made qualified immunity a protection against standing

trial, the Supreme Court has similarly emphasized that "the

public interest may be better served by action taken ‘with

independence and without fear of consequences.’" Mitchell,

472 U.S. at 525 (quoting Harlow v. Fitzgerald, 457 U.S. 800,

819 (1982)). These "consequences" were "not limited to liability for money damages" but also included "‘the general

costs of subjecting officials to the risks of trial-distraction of

officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.’" Id. at 526 (quoting Harlow, 457 U.S. at 816).

Moreover, in Filarsky, the Supreme Court relied on the

same public interest in holding that common law immunity

protects not only government employees but also private contractors when performing the government’s work:

The public interest in ensuring performance of government duties free from the distractions that can

accompany even routine lawsuits is also implicated

when individuals other than permanent government

employees discharge these duties. Not only will such

individuals’ performance of any ongoing government responsibilities suffer from the distraction of

lawsuits, but such distractions will also often affect

any public employees with whom they work by

embroiling those employees in litigation.

Filarsky, 132 S. Ct. at 1666 (citation omitted).

AL SHIMARI v. CACI INTERNATIONAL 103
The same concerns recognized in Mitchell and Filarsky animate the combatant activities exception here, ensuring that

entities engaged in actions arising out of combatant activities

do not suffer "distraction," are not slowed by "inhibition," and

are willing to serve our country. As Saleh noted, "the federal

government occupies the field when it comes to warfare, and

its interest in combat is always ‘precisely contrary’ to the

imposition of a non-federal tort duty." 580 F.3d at 7; see also

Koohi v. United States, 976 F.2d 1328, 1337 (9th Cir. 1992)

("[O]ne purpose of the combatant activities exception is to

recognize that during wartime encounters no duty of reasonable care is owed to those against whom force is directed as

a result of authorized military action").

In short, the unique federal interest embodied in the combatant activities exception to the FTCA is an interest in freeing

military actors from the distraction, inhibition, and fear that

the imposition of state tort law by means of a potential civil

suit entails. It makes no difference whether the military actors

are low-level soldiers, commanders, or military contractors.

The Supreme Court has made clear that immunity attaches to

the function being performed, and private actors who are hired

by the government to perform public functions are entitled to

the same immunities to which public officials performing

those duties would be entitled. See Filarsky, 132 S. Ct. at

1661-66. The unanimous Supreme Court in Filarsky emphasized that imposing liability on private individuals performing

public functions will result in "unwarranted timidity" on the

part of "those engaged in the public’s business," calling this

concern "the most important special government immunityproducing concern." Id. at 1665 (internal quotation marks

omitted). It recognized the need to "afford[ ] immunity not

only to public employees but also to others acting on behalf

of the government" because "often when there is a particular

need for specialized knowledge or expertise . . . the government must look outside its permanent work force to secure the

services of private individuals." Id. at 1665-66.

104 AL SHIMARI v. CACI INTERNATIONAL
This case presents just such an example. The military had

a need for specialized language and interrogation skills and

hired private individuals to work with the military in performing its public function. Because potential suit and liability

would result in "unwarranted timidity" on the part of these

government contractors, they must share the common law

immunity enjoyed by the military and retained by the FTCA

combatant activities exception. These interests underlying this

immunity are only protected if the immunity is not only an

immunity from liability, but also an immunity from suit.

Thus, the denial of a combatant activities defense will be

effectively unreviewable at final judgment because the defendants will no longer be able to vindicate their right to avoid

the burdens and distractions of trial. Military contractors will

have to undertake future actions "arising out of combatant

activities" with the understanding that they are presumptively

subject to civil tort law and must abide by state law duties of

care in the middle of a foreign war zone. The result will be

exactly what the Supreme Court cautioned against in Filarsky:

"those working alongside [government employees] could be

left holding the bag — facing full liability for actions taken

in conjunction with government employees who enjoy immunity for the same activity." 132 S. Ct. at 1666. The governmental interests in uninhibited military action and in the

attraction of talented candidates, both public and private, animate the combatant activities exception, and these interests

are far broader than the limited interests recognized by the

majority, which focuses only on "sensitive military issues."

Ante, at 27. Such a narrow mischaracterization of the federal

interest ignores the broad language of the exception (protecting actions "arising out of combatant activities") and finds no

support in federal common law.

At bottom, it is readily apparent that the district courts’

orders denying Saleh immunity fall comfortably within the

collateral order doctrine. As the Supreme Court has said in

summarizing its collateral order precedents:

AL SHIMARI v. CACI INTERNATIONAL 105
In each case, some particular value of a high order

was marshaled in support of the interest in avoiding

trial: honoring the separation of powers, preserving

the efficiency of government and the initiative of its

officials, respecting a State’s dignitary interest, and

mitigating the government’s advantage over the individual. That is, it is not mere avoidance of a trial, but

avoidance of a trial that would imperil a substantial

public interest, that counts when asking whether an

order is "effectively" unreviewable if review is to be

left until later.

Will v. Hallock, 546 U.S. 345, 352-53 (2006) (emphasis

added). So it is in these cases.

C. Law-of-War Immunity

Finally, CACI and L-3 claimed protection from suit and

from the application of Iraqi law under law-of-war immunity,

as recognized in the Supreme Court’s decision in Dow v.

Johnson, 100 U.S. 158 (1879), because they were part of the

occupying force in the middle of an ongoing war.3

The plaintiffs agree that the district courts conclusively

decided that defendants were not entitled to law-of-war

immunity and that the issue is collateral to the merits. They

contend, however, that this immunity is not an immunity from

3

In Al-Quraishi, the district court determined that Iraqi law would apply

to the action under Maryland’s adherence to the lex loci delicti rule in analyzing choice of law in tort actions. 728 F. Supp. 2d at 761-62. In Al Shimari, the district court noted that it would "present the parties with the

opportunity to address the choice of law issue at a later date," and did not

determine what law would apply. 657 F. Supp. 2d at 725 n.7. Virginia law,

however, also applies the lex loci delicti rule and, thus, Iraqi law would

appear to apply in that action as well. See Colgan Air, Inc. v. Raytheon

Aircraft Co., 507 F. 3d 270, 275 (4th Cir. 2007) (per curiam). As Judge

Wilkinson notes, however, the plaintiffs in Al Shimari contend that Virginia law should apply. 

106 AL SHIMARI v. CACI INTERNATIONAL
suit but a doctrine of jurisdiction, depriving courts in an occupied territory of jurisdiction over the occupying forces.

In its amicus brief, the United States noted, without explanation, that "Dow and the policies it reflects may well inform

the ultimate disposition of these claims," but the United States

was "not prepared . . . to conclude that the contractor defendants have demonstrated a right to immediate review of their

contentions based on Dow alone."

The majority again resorts to labels to resolve this immunity issue, noting that Dow does not use the word "immunity."

The fact that Dow does not use the specific term "immunity,"

however, has little relevance to the question of whether a ruling denying application of its holding is immediately appealable. Dow characterized the defense at issue as an "exemption

from . . . civil proceedings,"4 100 U.S. at 165 (emphasis

added), which, as was customary to find at the time, led to a

lack of "jurisdiction" of the court over the defendant, id. at

170. In The Schooner Exchange v. McFaddon, 11 U.S. (7

Cranch) 116 (1812), which was relied on by Dow, the Court

similarly used the language of "jurisdiction," and this phrase

was later interpreted by the Supreme Court to stand for what

we call, in today’s parlance, foreign sovereign immunity. See

Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486

(1983). Further, subsequent cases, including Supreme Court

decisions, recognize that the Dow protection is a type of

4Compare this language with the Supreme Court’s more recent characterization that qualified immunity "shields government agents from liability for civil damages," Behrens, 516 U.S. at 305 (internal quotation marks

and alterations omitted) (emphasis added), or that it serves as a "protection

to shield [defendants] from undue interference with their duties and from

potentially disabling threats of liability," Harlow v. Fitzgerald, 457 U.S.

801, 806 (1982) (emphasis added), and again that government officials are

"shielded from liability for civil damages," id. at 818 (emphasis added).

See also Anderson v. Creighton, 483 U.S. 635, 638 (1987) (noting that

qualified immunity "shield[s]" government officials "from civil damages

liability"). 

AL SHIMARI v. CACI INTERNATIONAL 107
immunity. See Underhill v. Hernandez, 168 U.S. 250, 252-53

(1897); Moyer v. Peabody, 212 U.S. 78, 85-86 (1909); "Act

of State" Immunity, 57 Yale L.J. 108, 112 (1947).

Rather than fuss with a label, however, we must determine

the nature of the defense recognized in Dow so as to be able

to determine whether its rejection is immediately appealable.

The majority finds it "curious to imagine the nineteenth

century [Supreme] Court regarding its decisions in the Civil

War cases as having durable precedential effect," citing no

authority to reach that conclusion, and implies they may not

"possess continued relevance beyond their immediate context." Ante, at 23-24. By contrast, at oral argument, the United

States postulated that the "principles of Dow may have further

life in other doctrines," and specifically argued that these

principles may be "given effect" by courts in their recognition

of the federal common law defense identified in Saleh based

on the combatant activities exception. Dow and other cases of

its era were decided as a matter of federal and international

common law at a time when the Supreme Court recognized

the validity of such common law. See Ford v. Surget, 97 U.S.

594, 613 (1878) (finding a Mississippi civilian immune from

civil suit for destroying another citizen’s cotton in support of

the occupying Confederate army based on the "common laws

of war—those maxims of humanity, moderation, and justice"

and the "law of nations").

Although the invocation of federal common law was

restricted severely with the Supreme Court’s decision in Erie

Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the Court’s

decision in Boyle nonetheless explicitly instructs courts to displace state tort law with federal common law when the imposition of state tort law would conflict with uniquely federal

interests. The immunity recognized in Dow falls within the

same body of federal common law that displaces state law

under the methodology employed by Boyle. And "commonlaw principles of . . . immunity were incorporated into our

108 AL SHIMARI v. CACI INTERNATIONAL
judicial system and . . . should not be abrogated absent clear

legislative intent to do so." Filarsky, 132 S. Ct. at 1665 (internal quotation marks omitted). For this reason, the immunity

claimed by the defendants under Dow and the immunity

claimed under the common law defense based on the combatant activities exception are simply two variations of the same

principle; they are both a common law immunity from suit.

And Boyle provides the methodology for preempting state law

and applying the federal common law immunity, as pointed

out in Saleh.

The majority relies heavily on the Supreme Court’s statement that an immunity from suit must typically be derived

from "an explicit statutory or constitutional guarantee that

trial will not occur." Ante, at 24. Thus, the majority would

conclude that Saleh preemption cannot be an immunity from

suit, because there is "no contention that the Supreme Court

in Boyle[ ], from which Saleh preemption is derived, relied on

any such explicit guarantee embodied in statute or in the Constitution." Ante, at 24-25. Retreating almost immediately from

this categorical statement, however, the majority then admits

in a footnote that the Supreme Court has recognized an

implicit immunity from suit when such immunity has a

"‘good pedigree in public law,’ which more than makes up for

its implicitness." Ante, at 24 n.9 (quoting Digital Equip., 511

U.S. at 875). Yet, it continues to overlook the fact that the recognized need in Dow and other cases to free military operations from the duties and standards of state tort law represent

the same kind of public law pedigree that led the Supreme

Court to recognize qualified immunity, which is a common

law defense and is concededly an immediately appealable

issue. As the Supreme Court recently instructed, "We consult

the common law to identify those governmental functions that

were historically viewed as so important and vulnerable to

interference by means of litigation that some form of absolute

immunity from civil liability was needed to ensure that they

are performed with independence and without fear of conseAL SHIMARI v. CACI INTERNATIONAL 109
quences." Rehberg v. Paulk, 132 S. Ct. 1497, 1503 (2012)

(internal quotations marks omitted). 

Therefore, for the same reasons that the denial of the federal common law defense recognized in Saleh is immediately

appealable, inasmuch as the exemption from suit will effectively be unreviewable on appeal, the denial of the law-of-war

immunity is immediately appealable, either independently or

as part and parcel of the Saleh defense. The similarity in language is striking. Dow asks, "[w]hat is the law which governs

an army invading an enemy’s country," and concludes that

"[i]t is not the civil law of the invaded country; it is not the

civil law of the conquering country: it is military law,—the

law of war." 100 U.S. at 170. Dow continued to reason that

"for the protection of the officers and soldiers of the army"

the supremacy of the common law of war over the civil law

"is as essential to the efficiency of the army as the supremacy

of the civil law at home." Id. (emphasis added). Similarly,

Saleh emphasizes the necessary "elimination of tort from the

battlefield, both to preempt state or foreign regulation of federal wartime conduct and to free military commanders from

the doubts and uncertainty inherent in potential subjection to

civil suit." 580 F.3d at 7 (emphasis added). The freedom from

"potential subjection" to civil suits and the ability of military

personnel and contractors performing military functions to act

efficiently, without the distraction and inhibition inherent in

the potential imposition of state tort standards of duty onto an

active, foreign war zone cannot be vindicated by reviewing

the liability of officers or entities after a final judgment.

* * *

The denial of any one of the three immunities claimed by

CACI and L-3 is undoubtedly immediately appealable under

the collateral order doctrine. Not only has the denial of such

immunities, even on 12(b)(6) motions, traditionally been

found to be immediately appealable, see, e.g., Behrens, 516

U.S. at 305-06, but the substance of each immunity claim is

110 AL SHIMARI v. CACI INTERNATIONAL
a paradigm example of the type of collateral order that was

held immediately appealable in Cohen. The immunities

claimed protect the defendants from judicial intervention into

battlefield operations, a protection which would necessarily

be breached by subjecting battlefield operatives to suit. As

noted above, these immunities can only be vindicated and

protected by allowing interlocutory appellate review.

III

Upon the necessary recognition of our appellate jurisdiction

to consider the immunities on an interlocutory basis, we must,

at once and as the next immediate step, consider our subject

matter jurisdiction, as well as the subject matter jurisdiction

of the district courts. "On every writ of error or appeal, the

first and fundamental question is that of jurisdiction, first of

this court, and then of the court from which the record comes.

This question the court is bound to ask and answer for itself

. . . ." Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94

(1988). Article III provides that the judicial power only

extends to "Cases" or "Controversies," U.S. Const. art. III,

§ 2, and the "requirement that jurisdiction be established as a

threshold matter ‘spring[s] from the nature and limits of the

judicial power of the United States’ and is ‘inflexible and

without exception,’" id. at 94-95 (quoting Mansfield, C. &

L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)). 

Even when faced with a collateral order immunity appeal,

we are not relieved of the duty to ask first whether the district

courts and then whether our court have Article III jurisdiction

to hear these cases. See In re Methyl Tertiary Butyl Ether

Prods. Liab. Litig., 488 F.3d 112, 121-22 (2d Cir. 2007) ("We

conclude that review of [a removal] question is required pursuant to our independent obligation to satisfy ourselves of the

jurisdiction of this court and the court below. . . . This obligation is not extinguished because an appeal [from the denial of

sovereign immunity] is taken on an interlocutory basis and

not from a final judgment"); Kwai Fun Wong v. United States,

AL SHIMARI v. CACI INTERNATIONAL 111
373 F.3d 952, 960-61 (9th Cir. 2004) ("Resolution of subject

matter jurisdiction is . . . necessary to ensure meaningful

review of the district court’s interlocutory rulings because if

the appellate courts lack jurisdiction, they cannot review the

merits of these properly appealed rulings" (internal quotation

marks omitted) (alterations in original)); Hospitality House,

Inc. v. Gilbert, 298 F.3d 424, 429 (5th Cir. 2002) ("[W]here,

as in the instant case, we have interlocutory appellate jurisdiction to review a district court’s denial of Eleventh Amendment immunity, we may first determine whether there is

federal subject matter jurisdiction over the underlying case");

Timpanogos Tribe v. Conway, 286 F.3d 1195, 1201 (10th Cir.

2002) ("[J]urisdiction is a threshold question which an appellate court must resolve before addressing the merits of the

matter before it. . . . [B]ecause we have appellate jurisdiction

over the interlocutory appeal of defendants’ assertion of Eleventh Amendment immunity, we also have appellate jurisdiction to determine whether the district court had subject matter

jurisdiction over the Tribe’s underlying claim against defendants in the first instance").5

In the cases presently before us, the plaintiffs have asked

civilian courts to entertain state tort law causes of action

based on conduct taken in connection with an active and

ongoing war against another sovereign. To entertain the plaintiffs’ claims would impose, for the first time, state tort duties

onto an active war zone, raising a broad array of interferences

by the judiciary into the military functions textually committed by our Constitution to Congress, the President, and the

Executive Branch. See U.S. Const. art. I, § 8, cls. 11-14

5Some of these courts have considered jurisdictional questions by exercising pendent appellate jurisdiction over the question, reasoning that

determining subject matter jurisdiction is "necessary to ensure meaningful

review" of the immunity question. See Kwai Fun Wong, 373 F.3d at 960-

61; Timpanogos Tribe, 286 F.3d at 1201. Other courts have considered it

because of their inherent power and obligation under Steel Co. to consider

jurisdiction. See Hospitality House, 298 F.3d at 429-30. The result is the

same under either approach. 

112 AL SHIMARI v. CACI INTERNATIONAL
(authorizing Congress to declare war, to raise armies and

create a navy, and to make rules for the military); id. art. II,

§ 2 (providing that the President "shall be Commander-inChief of the army and navy of the United States, and of the

militia of the several states, when called into the actual Service of the United States"). Because these cases implicate several "textually demonstrable constitutional commitment[s]" of

authority to the "political department[s]," they have no place

in federal courts and must be dismissed for lack of jurisdiction. Baker v. Carr, 369 U.S. 186, 216 (1962).

The plaintiffs in these cases were seized in a war zone by

the military, having been suspected of hostile activity or of

possessing useful intelligence. The function of detaining and

interrogating such persons to obtain intelligence was undoubtedly critical to the success of military strategies and campaigns. The judgment of whom to interrogate, what to inquire

about, and the techniques to use fell comfortably within the

powers of the Commander-in-Chief and his subordinates in

the chain of command. And CACI and L-3, as civilian contractors of the military, worked side by side with the military

to carry out these military operations under the ultimate

supervision and command of the military "during a period of

armed conflict and in connection with hostilities." They were

engaged by the military to pursue interrogations under the

command and control of military personnel with respect to

persons detained by the military. And, consistent with the

close connection between the military and the military contractors, the complaints allege that the military and the civilian contractors conspired in their abuse of the military

detainees.

For the reasons I gave in my panel concurrence in Al Shimari, 658 F.3d at 420-25 (Niemeyer, J., concurring), and the

reasons given by Judge King in his majority opinion in Taylor

v. Kellogg Brown & Root Services, 658 F.3d 402, 412 (4th

Cir. 2011), I would conclude that the political question doctrine deprives both this court and the district courts of subject

AL SHIMARI v. CACI INTERNATIONAL 113
matter jurisdiction to hear these cases. See also Massachusetts

v. EPA, 549 U.S. 497, 516 (2007) ("It is . . . familiar learning

that no justiciable ‘controversy’ exists when parties seek adjudication of a political question"); Tiffany v. United States, 931

F.2d 271, 277 (4th Cir. 1991) ("Of the legion of governmental

endeavors, perhaps the most clearly marked for judicial deference are provisions for national security and defense. . . . The

strategy and tactics employed on the battlefield are clearly not

subject to judicial review"); Carmichael v. Kellogg Brown &

Root Servs., Inc., 572 F.3d 1271, 1283 (11th Cir. 2009). 

Accordingly, while we undoubtedly have appellate jurisdiction under Cohen to consider these appeals at this stage in the

proceedings, we lack subject matter jurisdiction over these

cases, as did the district courts. I would therefore dismiss

these appeals for lack of subject matter jurisdiction and

remand the cases to the district courts with orders that they

likewise dismiss the cases for lack of subject matter jurisdiction.

Judge Wilkinson and Judge Shedd have indicated that they

join this opinion.

114 AL SHIMARI v. CACI INTERNATIONAL