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Posts Tagged ‘Abu Ghraib’

A story by Ariane de Vogue of ABC News and a blog post by Steve Vladeck at Lawfare provide additional reporting and analysis of last week’s en banc Fourth Circuit oral argument in the Al-Quraishi and Al Shimari cases (links are to the now-vacated panel opinions). It is clear from the commentary that the federal government’s position is almost certainly understood differently inside the court than outside of it–perhaps deliberately so. If the Fourth Circuit does conclude that it lacks appellate jurisdiction, I would expect that the cases make their way back to the Fourth Circuit before they make substantial forward progress in the district court.

For those who have not been following these cases: The merits revolve around the potential tort liability of military contractors that assisted the United States military at Abu Ghraib. But the primary focus of the en banc court’s consideration was on appellate jurisdiction.

The appeals came to the Fourth Circuit based on the collateral order doctrine, which is an interpretation/implied exception to the finality requirement of 28 U.S.C. 1291. An alternative route to the Fourth Circuit’s reaching the merits of the appeal would be a remand for lack of jurisdiction (perhaps accompanied by a stay), followed by certification of a controlling question of law pursuant to 28 U.S.C. 1292(b). In a deft tactical retreat, counsel for defendant L-3 Services at oral argument suggested such a path as an alternative to straight-up dismissal of the appeal.

 

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Having attended yesterday’s oral argument in the Fourth Circuit’s en banc consideration of Al-Quraishi v. L-3 Servs. Inc. and Al Shimari v. CACI Int’l Inc., I am now wading a little more deeply into the issues.

The D.C. Circuit’s decision in Saleh v. Titan Corp. involved similar claims to those asserted in the cases being considered by the Fourth Circuit. In reviewing that decision, I came across the statement in Judge Garland’s dissent that supplies the title for this post: “To deny preemption is not to grant plaintiffs free reign.”

Judge Garland must have meant “rein” instead of “reign.” But the mix-up is instructive. By asserting state tort law against contractors acting abroad under the control and direction of the U.S. military, authorizing discovery would be extending the “reign” of some other sovereign against the federal government’s chosen helpers in a war zone.

Judge Garland is right that this “reign” would not be “free.” The district court would hold the reins and govern the case based on the court’s perception of the relevant interests. But the appropriate question seems to be not simply how tight a rein the court may hold, but whether the horse should leave the starting gate at all.

(Note: Judge Garland may not be wrong, but rather avant-garde (instead of old guard) in his use of language. According to this Google Ngram, his chosen usage appears to be gaining in popularity while the conventional usage is running flat after something of a decline.)

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The Fourth Circuit, sitting en banc, heard oral arguments this morning in two cases asserting civil damages claims against military contractors for their activities at Abu Ghraib and other locations in the Iraq war zone. (A short write-up of the now-vacated panel decisions is available here, and more extensive  pre-argument discussions of various issues arising out of the panel opinions can be found at Lawfare here, here, here, and here.)

I attended the argument and came away with some (admittedly impressionistic) impressions that might be of interest to those following the cases who could not make it to Richmond for the argument:

– Almost all of the argument and questioning focused on whether the appellate court had jurisdiction. There was some discussion of the correctness (or not) of the D.C. Circuit’s decision in Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), dismissing similar claims under a form of “battlefield preemption.” But most of that discussion was about the proper characterization of the doctrine: Is preemption the right way to think about the doctrine, or is it closer to an immunity? And there was much discussion of whether the contractors had a substantial claim to derivative immunity.

– Given how the argument went, it would be surprising if the court were to conclude both (1) that it has jurisdiction, and (2) that the district court properly ruled in allowing the claims against the contractors to go forward. If the Fourth Circuit concludes that it has appellate jurisdiction, the merits of the ruling are likely to be in the contractors’ favor.

– BUT it is difficult to make any confident predictions given that several of the judges either did not ask any questions or asked only one or two, leaving little to observe about their case-specific inclinations.

– Judge Niemeyer and Judge Shedd, responsible for the panel opinions, mounted vigorous questioning designed to show that a remand for discovery was not only unnecessary but also would defeat the very interests to be protected by the immunity doctrine whose applicability they needed to decide, as well as undermining some of the federal interests protected by the preemption doctrine at issue. Judge Wilkinson’s questioning revealed him to be aligned with Judge Niemeyer and Judge King on these issues.

– Judge King, author of the panel dissents, led the questioning for the jurisdictional skeptics. At various times, questions by Judge Wynn, and to a lesser extent by Judge Gregory, Judge Motz, and Judge Davis, revealed likely alignment with Judge King on this point.

– Judge Duncan asked a couple of questions that appeared to be aimed at some sort of middle ground that would allow the Fourth Circuit to dismiss for lack of appellate jurisdiction but still provide guidance to the district court that, on remand, it needs to give more weight to the federal interests threatened by further litigation of these claims. But Judge Wilkinson asked a question suggesting that, if the Fourth Circuit dismisses for lack of jurisdiction, the Fourth Circuit risks taking itself out of involvement until after trial.

– Some of the judges appeared receptive to a remand for lack of jurisdiction under the collateral order doctrine (the appellant’s theory of jurisdiction) with strong suggestions to the district court that it certify an interlocutory appeal under 1292(b). Judge Motz suggested that upholding jurisdiction under the collateral order doctrine would create a circuit split. Earlier in the argument, Judge Motz observed that the Supreme Court’s refusal to allow expansion of the collateral order doctrine was analogous to its treatment of Bivens claims.

– The federal government had a rough day. At the court’s invitation, the federal government had filed an amicus brief. (See here for Steve Vladeck’s summary of the government’s brief.) Counsel for the government, Thomas Byron, had an excellent presence and remained poised and articulate throughout. But the court was clearly not enamored with the federal government’s seeming attempt to have things both ways. When counsel for the government began with a customary expression of pleasure at the opportunity to appear at the invitation of the court, Judge Motz noted that she was “surprised” to hear that given that the brief filed by the government was “equivocal” about the issues. Later on, Judge Wilkinson said that he agreed with Judge Motz, that he thought the government was offering the “most obscure, equivocal kind of presentation . . . .” Judge Motz then interjected that she didn’t say quite that, and Judge Shedd (I think) stated something along the lines of “it sure sounded like that over here.” (Note: It’s hard to convey a flavor of how this all went over in the courtroom, so it’s probably worthwhile for those interested to listen to the recording of oral argument when it is available next week.) Although Judge Motz dissociated herself from some of the more strongly negative characterizations of the government’s position offered by Judge Wilkinson, it seemed that even at the end of argument, Judge Motz was not completely satisfied with the government’s argument. This was apparent from a question she asked about the government’s understanding of Dow v. Johnson, 100 U.S. 158 (1879), which involves the non-susceptibility of military actors to answer in civil tribunals for actions in warfare. She asked government counsel, somewhat skeptically, to explain the following statement from the government’s brief: “Dow and the policies it reflects may well inform the ultimate disposition of these claims. But we are not prepared at this point to conclude that the contractor defendants have demonstrated a right to immediate review of their contentions based on Dow alone.”

– Notwithstanding the difficulties faced by the federal government, it is conceivable that something close to the federal government’s position with respect to jurisdiction could prevail, leading to another interlocutory appeal not too far down the road. As previously noted, however, it is difficult to make any confident predictions given the sheer number of judges (14) and the limited amount of information that can be gleaned from the contents of questions.

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The Fourth Circuit issued four published opinions yesterday.

Three of the opinions were from a single panel, consisting of Judge Niemeyer, Judge King, and Judge Shedd. This panel heard arguments in the appeals almost 11 months ago (October 26, 2010). All three appeals involve claims that arose in some way in out of activities of U.S. contractors in Iraq. Two cases involved claims by Iraqis against U.S. contractors, and one was a claim by a United States Marine against contractor Kellogg, Brown, and Root. In each case, the Fourth Circuit held that the claimants are barred from recovering. (AP story on the Iraqi citizen suits here.)

In Al Shimari v. CACI International, the court held that state law tort claims brought by four Iraqi citizens against a U.S. contractor for damages from torture and abuse at Abu Ghraib are preempted by federal law. The court ruled similarly in Al-Quraishi v. L-3 Services, Incorporated, remanding with instructions to dismiss the claims of 72 Iraqis against a U.S. contractor for damages from torture and abuse at various detention sites in the Iraq war zone. In both cases, Judge Niemeyer wrote the majority opinion, which Judge Shedd joined. Judge King dissented, arguing that the court lacked jurisdiction under the collateral order doctrine, and that, if the court did have jurisdiction, it should have ruled that the claims were not preempted. The opinions in Al Shimari focus more on the preemption arguments, while the opinions in Al-Quraishi devote more attention to the appellate jurisdiction arguments. In Al Shimari, Judge Niemeyer wrote not only an opinion for the panel majority, but also a separate solo opinion “giving additional reasons for reversing and remanding.” Judge Niemeyer argued in this opinion that the plaintiffs’ claims were not only preempted, but also barred by the political question doctrine and derivative absolute immunity.

The third decision from this panel was Taylor v. Kellogg Brown & Root Services, Incorporated. The court held that the negligence claim of a Marine against contractor KBR was barred by the political question doctrine and that the claim was also preempted. The path to these alternative holdings is an unusual one. The header for the opinion (if that’s the right term, not sure) describes the voting breakdown as follows: “Affirmed in part and vacated in part by published opinion. Judge King wrote the opinion, in which Judge Niemeyer joined. Judge Niemeyer wrote a concurring opinion. Judge Shedd wrote an opinion concurring in the judgment, in which Judge Niemeyer joined.” This description seems slightly off. Because Judge Niemeyer joined the opinions by Judge King and Judge Shedd, both of those opinions express the opinion of the court.

The fourth published opinion issued by the Fourth Circuit yesterday was United States v. Blair. The court unanimously affirmed convictions for money laundering, but by a 2-1 vote reversed a conviction for obstruction of justice. The panel consisted of Chief Judge Traxler, Judge Wilkinson, and Judge Wynn. The unanimous portions of the opinion were per curiam. Judge Wilkinson authored the portion of the opinion addressing obstruction of justice; Judge Wynn joined in that section, while Chief Judge Traxler dissented from it.

The opinions in all four of these appeals deserve more attention, which I hope to give them in later posts.

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