Wake Forest Law Review

By Kelsey Mellan

On October 21, 2016, the Fourth Circuit issued a published opinion in Al Shimari v. CACI Premier Tech., Inc., a civil case involving four Iraqi nationals who were allegedly abused while detained at Abu Gharib prison, located near Baghdad, Iraq, in 2003 and 2004. While the plaintiffs in this action were held by the United States Army, CACI Premier Technology (“CACI”), a corporation headquartered in Virginia, provided contract interrogation services for the military at the time of the alleged abuse. This case is on appeal before the Fourth Circuit for the fourth time. The current issue before the court is whether the district court erred in dismissing plaintiffs’ complaint on the ground that it presented a non-justiciable political question. The Fourth Circuit vacated the district court’s judgment and remanded this case for further proceedings consistent with the instructions discussed in this opinion.

Facts & Procedural History

 In 2003, the US took control of Abu Gharib prison (“Abu Gharib”), a prison located near Baghdad, Iraq that was previously under Saddam Hussein’s control. Upon assuming control of the Abu Gharib, the US military used the facilities to hold individuals for interrogation related to intelligence gathering. Due to a shortage of military interrogators, the US contracted CACI to provide additional interrogation services at Abu Gharib. In a later investigation of Abu Gharib, the United States Department of Defense (“DoD”) determined that prisoners were tortured at the prison between October and December 2003. The DoD investigation confirmed that both CACI interrogators and military personnel engaged in the allegedly abusive conduct. The US military disciplined multiple service members who were involved by either court martial or imprisonment. It is unclear as to whether any CACI interrogators where punished either administratively or criminally.

In their complaint, filed in June 2008, the plaintiffs alleged that CACI interrogators conspired with low-ranking military police officials to abuse the plaintiffs to make them “more responsive” during later interrogations. The plaintiffs further allege that CACI interrogators “instigated, directed, participated in, encouraged, and aided and abetted conduct towards detainees” in clear violation of the Geneva Conventions, the Army Field Manual, and the laws of the United States. Furthermore, the plaintiffs allege the acts of abuse were possible because of a “command vacuum” at Abu Gharib, caused by the failure of military leaders to exercise effective oversight of CACI interrogators. CACI moved to dismiss the plaintiff’s complaint on several grounds, including the political question doctrine. However, the district court determined that it lacked subject matter jurisdiction over this case, as CACI is a private party rather than a governmental actor, and both parties failed to demonstrate either diversity or federal question jurisdiction.

After several subsequent remands and rehearings in this case, the district court decided in Al Shimari v. CACI Premier Tech., Inc. (4th Cir. 2014) (Al Shimari III) that the plaintiffs’ claim presented a non-justiciable political question and should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). In this appeal, the plaintiffs contend that the district court erred in dismissing their complaint as non-justiciable under the political question doctrine.

Explanation of Political Question Doctrine

The Supreme Court defined the political question doctrine in Japan Whaling Association v. American Cetacean Society as the limitation of courts’ jurisdiction over “controversies which revolved around policy choices and value determinations constitutionally committed” to either the executive or legislative branch. This is a narrow exception to the judiciary’s general obligation to decide cases properly brought before the courts. This rule is justified by the concern that courts are ill-equipped to evaluate discretional military decisions. Despite the general presumption that military decisions are committed exclusively to the executive branch, a claim is not shielded from judicial review just because it arose in a military setting.

The Supreme Court established a six-factor test in Baker v. Carr to aid courts in determining whether a case presents a political question. In Taylor v. Kellogg Brown & Root Services, Inc., the Fourth Circuit further distilled these factors into two questions for consideration in determining whether a court has subject matter jurisdiction in a negligence suit against a government contractor, such as CACI. The first inquiry is whether the government contractor was under the direct control of the military. The second inquiry is whether national defense interests were so intertwined with military decisions governing the contractor’s conduct that a decision on the merits of the claim would require the court to question military judgments. An affirmative answer to either question generally triggers the application of the political question doctrine.

Application of the Political Question Doctrine

 In the instant case, the Fourth Circuit determined that there was some evidence that shows the military was in direct control of CACI interrogators, including the fact that the military was in charge of the official command structure at Abu Gharib. However, overwhelming evidence in the record indicated that the military failed to exercise actual control over the CACI interrogators. Moreover, additional evidence suggested that CACI interrogators actually ordered low-level military personnel to mistreat the detainees.

In total, the record demonstrated that the military’s formal command authority did not translate into actual day-to-day control of CACI interrogators. While the district court’s analysis focused on this formal control by the military, the Fourth Circuit decided that the concept of dire control encompasses not only the requirements set in place before the interrogations, but also what actually occurred during the interrogations. Furthermore, this court clarified that the military cannot lawfully exercise its authority by directing a contractor to engage in unlawful activity, and therefore if a contractor does engage in unlawful activity, the contractor cannot claim protection under the political question doctrine.

In terms of the second Taylor factor, the district court concluded that the plaintiffs’ claims were non-justiciable because adjudicating the plaintiffs’ claims would impinge on the military’s authority to select interrogation strategies. However, the district court failed to draw a distinction between unlawful conduct and discretionary acts that were not unlawful when committed. Unlawful acts fall outside the protection of the political question doctrine. Therefore, the lower court must distinguish between unlawful acts and discretionary acts (that were, at the time, lawful).

 When a military contractor acts contrary to settled international law or applicable criminal law, the separation of powers rationale of the political question doctrine does not preclude judicial review. The adjudication of a claim involving an unlawful act simply requires a court to engage in the traditional judicial function of “saying what the law is.” The Supreme Court has explained that the political question doctrine does not strip courts of the ability to apply traditional rules of statutory interpretation to the facts in a particular case. Therefore, any conduct of CACI employees that occurred under direct military control or involving sensitive military judgments, and was not unlawful when committed, constituted is shielded from judicial review under the political question doctrine. However, any unlawful acts committed by CACI employees are subject to judicial review, as they fall outside of the political question doctrine’s purview.

The Fourth Circuit acknowledged that some conduct is not clearly lawful or unlawful, and deemed this as “grey area” conduct. Accordingly, this court vacated the district court’s decision and remanded the case. The Fourth Circuit instructed the district court to determine which of the alleged acts were unlawful by examining the evidence regarding the specific conduct to which the plaintiffs were subjected and the source of any direction under which the acts took place. Judge Floyd authored a concurrence in this case, in which he agreed with the majority’s holding, but questioned the definition of “grey area” conduct and whether this greyness renders close cases justiciable.

 Disposition

 The Fourth Circuit concluded the political question doctrine does not shield unlawful acts committed by government contractors from judicial review and thus vacated the district court’s judgment and remanded this case for further proceedings.

 

 

courtroom

By Daniel Stratton

Today, March 21, 2016, the Fourth Circuit issued a published opinion in the civil case Jane Doe #1 v. Matt Blair, vacating the district court’s decision. The Fourth Circuit held that the lower court incorrectly determined that there was no federal diversity jurisdiction because the defendant corporation failed to allege its principal place of business. The Fourth Circuit overturned the decision because it was a procedural determination rather than a jurisdictional one.

The Case Bounces Between State and Federal Courts

On March 27, 2014, Ben and Kelly Houdersheldt filed a complaint in West Virginia state court as the next friends and guardians of Jane Doe #1, against Matt Blair and Res-Care, Inc. On July 14 of that same year, Res-Care removed the case to federal court, claiming subject matter jurisdiction based on diversity. Res-Care alleged that Jane Doe #1 was a resident of West Virginia and that Blair was a resident of Virginia. The company alleged that it was incorporated in Kentucky, but did not allege the state in which it had its principal place of business. The Houdersheldts, acting as next friends and guardians of Jane Doe #2, amended the complaint to include the second plaintiff. Jane Doe #2 and the Houdersheldts were residents of West Virginia.

On January 20, 2015, the district court sua sponte remanded the case back to state court, asserting that diversity subject matter jurisdiction had not been established. The court asserted that because neither party had asserted where Res-Care had its principal place of business, the court did not have jurisdiction based on diversity. Defendant Blair filed a motion to amend under Federal Rule of Civil Procedure 59(e) and for reconsideration under Federal Rule of Civil Procedure 60. Res-Care joined the motion. In the motion, the defendants argued that no party had challenged the diversity jurisdiction and that the parties had determined that Res-Care’s principal place of business was Louisville, Kentucky. The plaintiffs did not oppose Blair and Res-Care’s motion, but the district court denied it. Res-Care and Blair appealed.

Procedural or Jurisdictional: The Threshold Question for Reviewing Removal Orders

Federal circuit courts are restricted in reviewing district court orders remanding removed cases to state court. Under 28 U.S.C. § 1447(d), remand orders are generally “not reviewable on appeal or otherwise.” Supreme Court precedent, however, limits 28 U.S.C. § 1447(d) to cases where (1) a district court lacks subject matter jurisdiction, or (2) there is a defect in removal (other than a lack of subject matter jurisdiction) that was raised by a motion filed by a party within thirty days after the notice of removal was filed.

Under this system, a court can remand a case sua sponte for lack of subject matter jurisdiction at any time. Such an order is not reviewable by a federal appellate court. However, if the remand is based on another defect, a motion must be timely filed. If no motion is filed, 28 U.S.C. § 1447(d) does not bar a court’s review. Essentially, whether an appellate court has jurisdiction to review a district court’s remand order turns on whether the order was jurisdictional or procedural in nature.

How Have Other Circuits Tackled This Question?

In deciding how to resolve this case, the Fourth Circuit took notice of how other circuits have dealt with the the precise issue of “whether a failure to establish a party’s citizenship at the time of removal is a procedural or jurisdictional defect.” Three other circuits – the Fifth, Seventh, and Eleventh Circuits – had previously determined that this type of failure was “procedural, rather than jurisdictional.” Those circuits determined that a procedural defect was any defect that did not go to the question of whether the case could have been brought in federal court in the first place.

The Fourth Circuit, in the 2008 case Ellenberg v. Spartan Motors Chassis, reached a similar decision in regards to the amount in controversy component of diversity jurisdiction. In that case, the complaint did not state a dollar amount for damages claimed. The notice of removal to federal court there stated that the amount in controversy exceeded $75,000. Once the case was in federal court, the district court sua sponte considered whether the case should be remanded to state court. There, the district court found that the defendants’ allegations of diversity jurisdiction failed because they had failed to establish that the amount in controversy exceeded the required jurisdictional amount. Soon after, the defendants filed a motion with facts supporting their allegations regarding the amount in controversy, which the district court denied. On appeal, the Fourth Circuit determined that it was not barred from reviewing the lower court’s decision because the remand order was based on a procedural insufficiency rather than on finding a lack of subject matter jurisdiction.

The Fourth Circuit Applies Ellenberg; Adopts Approach of the Other Circuits

Turning to the present case, the Fourth Circuit noted that the district court had proceeded in a manner similar to the district court in Ellenberg. Like that court, the court in the current case had “recited the well-established principles of subject matter jurisdiction” then determined that diversity jurisdiction had not been established. Then, after Blair attempted to correct this failure with his Rule 59(e) motion, the court here denied that motion, much as the court in Ellenberg.

The Fourth Circuit was not persuaded that in the present case the lower court had explicitly concluded that there was no subject matter jurisdiction, because such an order required an examination of the underlying substantive reasoning. This, the Fourth Circuit reasoned, was enough to show that the district court had not based its decision on a lack of subject matter jurisdiction, but instead on the procedural insufficiency of the removal notice. As a result, the court explained that the only way the this procedural deficiency could be raised would be by a party filing a timely motion, which did not occur here. Thus the Fourth Circuit adopted the approach used by the Fifth, Seventh, and Eleventh Circuits.

The Fourth Circuit Remands the Case Back to Federal District Court

Because the district court improperly remanded this case sua sponte, the Fourth Circuit reversed the lower court’s decision and remanded the case back for further proceedings. The Fourth Circuit also granted a motion made by Res-Case to amend its removal notice to correct its earlier deficiency.

supreme-court

By Taylor Anderson

On February 1, 2016, the Fourth Circuit issued its published opinion regarding the civil case Warfaa v. Ali. Farhan Warfaa (“Warfaa”), the plaintiff, appealed the district court’s summary dismissal of his Alien Tort Statute (“ATS”) claims after the district court found that Warfaa’s ATS claims did not sufficiently “touch and concern” the United States so as to establish jurisdiction in the United States. Additionally, Yusuf Ali (“Ali”) appeals the district court’s decision to allow Warfaa’s Torture Victim Protection Act of 1991 (“TVPA”) claims to proceed. The district court allowed the TVPA claims to proceed because Ali was not entitled to immunity as a foreign official. The Fourth Circuit affirmed the judgment of the district court.

Warfaa Alleges Several Violations of International Law

Throughout the 1980s, the Somali government targeted members of certain opposition “clans” through killings, torture, and property destruction. This government regime was titled the “Barre” regime. Warfaa’s clan, the Isaaq, was one of the targeted clans. Ali supported the Barre regime and commanded the Fifth Battalion of the Somali National Army stationed in Gebiley, the area where Warfaa lived. One morning in December 1987, two armed soldiers from the Fifth Battalion appeared at Warfaa’s hut and captured him. Warfaa was later detained and placed in a small, windowless cell with ten other prisoners.

Warfaa alleged he was subjected to many acts of violence during his detention at the direction of Ali. These acts included, but were not limited to, beatings with the butt of a gun, being tied up in a painful position, being kicked, being stripped naked, and being beat into unconsciousness. Throughout his capture, Ali abused and tortured Warfaa at least nine times.

In March 1988, Ali’s base was attacked. After ordering his soldiers to defend the base, Ali shot Warfaa in the wrist and leg, causing him to fall unconscious. Ali thought he had killed Warfaa and ordered his guards to bury the body; however, Warfaa regained consciousness while in the guards’ possession and convinced the guards to accept a bribe. Warfaa was released, and he still resides in Somalia today.

The Barre regime collapsed in 1991, but Ali had departed the country in advance of the fall. He came to the United States, and the United States began deportation proceedings soon thereafter. Ali voluntarily left the country in 1994 before the conclusion of the deportation proceedings. Ali returned to the United States in December 1996 and now resides in Alexandria, Virginia.

Warfaa filed suit against Ali in the United States District Court for the Eastern District of Virginia in 2004. For most of its duration, the case was stayed. On April 25, 2014, the district court lifted the stay and ordered Warfaa to file an amended complaint. Warfaa’s amended complaint contained six counts, and all six counts alleged torts purportedly committed in violation of international law, with jurisdiction arising under the ATS. Additionally, the first two counts were alleged to violate the TVPA, which provides a jurisdictional basis separate from the ATS. The district court dismissed the ATS claims because “such claims, generally speaking, must be based on violations occurring on American soil.” The district court also rejected Ali’s motion to dismiss the TVPA claims, concluding that Ali could not claim “official acts” immunity because his alleged acts violated jus cogens norms. Both parties timely appealed.

The ATS Does Not Grant Original Jurisdiction

The Fourth Circuit started its ATS analysis by pointing out that the ATS grants district courts “original jurisdiction” over “any civil action by an alien for a tort . . . committed in violation of the law of nations or a treaty of the United States.” The Fourth Circuit then narrowed its analysis of Warfaa’s claims based on the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. In Kiobel, the Supreme held that an ATS claim may not reach conduct occurring in the territory of a foreign sovereign. Additionally, the Kiobel presumption provides that when a statute gives no clear indication of an extraterritorial application, as the ATS did, it has none. Finally, the Fourth Circuit recognized that the Supreme Court emphasized that the ATS can create jurisdiction for such claims only where they “touch and concern” United States territory “with sufficient force to displace the presumption against extraterritorial application.”

The Fourth Circuit held that Warfaa’s ATS claims fell squarely within the ambit of Kiobel’s broad presumption against extraterritorial application of ATS because all of the relevant conduct in Warfaa’s case took place outside of the United States, in Somalia. Nothing in Warfaa’s case involved U.S. citizens, the U.S. government, U.S. entities, or events in the United States. The Fourth Circuit stated that the only purported “touch” in this case is the happenstance of Ali’s after-acquired resident in the United States long after the alleged events of abuse; however, this “touch” is not enough to overcome the Kiobel presumption. For this reason, the Fourth Circuit affirmed the district court’s decision to dismiss Warfaa’s ATS claims.

Ali Is Not Immune from the TVPA Claims

The district court allowed Warfaa’s TVPA claims to go forward, finding that Ali lacked foreign official immunity for jus cogens violations under the Fourth Circuit’s holding in Yousuf v. Samantar. On appeal, Ali’s only challenge was that Samantar was wrongly decided, and jus cogens violations deserve immunity.

The Fourth Circuit held that it was not in a position to overrule Samantar, as Ali wished. Instead, the Fourth Circuit stated that one panel’s decision is binding, not only upon the district court, but also upon another panel of this court—unless and until it is reconsidered en banc. For this reason, the Fourth Circuit did not consider the Samantar holding’s validity and held that the district court properly concluded Samantar forecloses Ali’s claim to foreign official immunity.

Judgment Affirmed

Because the district court correctly held that Warfaa’s ATS claims lacked a sufficient nexus with the United States to establish jurisdiction over those claims and Ali was not to receive foreign official immunity, the Fourth Circuit affirmed the decisions of the district court.

One judge wrote an opinion concurring in part and dissenting in part. This judge dissented on the issue of the ATS claims and believed that the Fourth Circuit should have reversed the district court’s decision in relation to them because Ali had extensive contacts with the United States which should have subjected him to the jurisdiction of the United States.