AL SHIMARI v. CACI INTERN., INC. 205 Cite as 679 F.3d … SHIMARI v. CACI INTERN., INC. 205 Cite as...

205AL SHIMARI v. CACI INTERN., INC.Cite as 679 F.3d 205 (4th Cir. 2012)

Suhail Najim Abdullah AL SHIMARI;Taha Yaseen Arraq Rashid; Sa’adHamza Hantoosh Al–Zuba’e; SalahHasan Nusaif Jasim Al–Ejaili, Plain-tiffs–Appellees,

v.

CACI INTERNATIONAL, INCORPO-RATED; CACI Premier Technology,Incorporated, Defendants–Appellants.

Kellogg Brown & Root Services,Incorporated, Amicus Sup-

porting Appellants,

Professors of Civil Procedure and Fed-eral Courts, Erwin Chemerinsky,Dean and Distinguished Professor ofLaw, University of California, IrvineSchool of Law, Eric M. Freedman,Maurice A. Deane, Distinguished Pro-fessor of Constitutional Law, HofstraUniversity School of Law, Jennifer M.Green, Director, Human Rights Liti-gation and International AdvocacyClinic, University of Minnesota LawSchool, Jonathan Hafetz, AssociateProfessor of Law, Seton Hall Univer-sity School of Law, Alan B. Morrison,Lerner Family Associate Dean forPublic Interest and Public ServiceLaw, George Washington UniversitySchool of Law, Stephen I. Vladeck,Professor of Law and Associate Deanfor Scholarship, American UniversityWashington College of Law; RetiredMilitary Officers; Earthrights Inter-national; International HumanRights Organizations and Experts,Human Rights First, The Center forVictims of Torture, The InternationalCommission of Jurists, The WorkingGroup Established by the Commissionon Human Rights on the Use of Mer-cenaries as a Means of Violating Hu-man Rights and Impeding the Exer-cise of the Right of Peoples to Self–

Determination, Human Rights Watch,Ilias Bantekas, John Cerone, GeoffreyCorn, David Glazier, Kevin Jon Heller,Michael Newton, Marco Sassoli, GarySolis, Scott M. Sullivan, Dr. AniceeVan Engeland, Amici Supporting Ap-pellees,

United States of America,Amicus Curiae.

Wissam Abdullateff Sa’eed Al–Quraishi,Plaintiff–Appellee,

L–3 Services, Incorporated,Defendant–Appellant,

and

Adel Nakhla; CACI International, In-corporated; CACI Premier Technolo-

gy, Incorporated, Defendants.

Professors of Civil Procedure and Fed-eral Courts, Erwin Chemerinsky,Dean and Distinguished Professor ofLaw, University of California, IrvineSchool of Law, Eric M. Freedman,Maurice A. Deane, Distinguished Pro-fessor of Constitutional Law, HofstraUniversity School of Law, Jennifer M.Green, Director, Human Rights Liti-gation and International AdvocacyClinic, University of Minnesota LawSchool, Jonathan Hafetz, AssociateProfessor of Law, Seton Hall Univer-sity School of Law, Alan B. Morrison,Lerner Family Associate Dean forPublic Interest and Public ServiceLaw, George Washington UniversitySchool of Law, Stephen I. Vladeck,Professor of Law and Associate Deanfor Scholarship, American UniversityWashington College of Law; RetiredMilitary Officers; Earthrights Inter-national; International HumanRights Organizations and Experts,Human Rights First, The Center forVictims of Torture, The International

206 679 FEDERAL REPORTER, 3d SERIES

Commission of Jurists, The WorkingGroup Established by the Commissionon Human Rights on the Use of Mer-cenaries as a Means of Violating Hu-man Rights and Impeding the Exer-cise of the Right of Peoples to Self–Determination, Human Rights Watch,Ilias Bantekas, John Cerone, GeoffreyCorn, David Glazier, Kevin Jon Heller,Michael Newton, Marco Sassoli, GarySolis, Scott M. Sullivan, Dr. AniceeVan Engeland, Amici Supporting Ap-pellee,


Wissam Abdullateff Sa’eed Al–Quraishi,Plaintiff–Appellee,

v.

Adel Nakhla, Defendant–Appellant,

and

L–3 Services, Incorporated; CACI Inter-national, Incorporated; CACI PremierTechnology, Incorporated, Defen-dants.

Professors of Civil Procedure and Fed-eral Courts, Erwin Chemerinsky,Dean and Distinguished Professor ofLaw, University of California, IrvineSchool of Law, Eric M. Freedman,Maurice A. Deane, Distinguished Pro-fessor of Constitutional Law, HofstraUniversity School of Law, Jennifer M.Green, Director, Human Rights Liti-gation and International AdvocacyClinic, University of Minnesota LawSchool, Jonathan Hafetz, AssociateProfessor of Law, Seton Hall Univer-sity School of Law, Alan B. Morrison,Lerner Family Associate Dean forPublic Interest and Public ServiceLaw, George Washington UniversitySchool of Law, Stephen I. Vladeck,Professor of Law and Associate Dean

for Scholarship, American UniversityWashington College of Law; RetiredMilitary Officers; Earthrights Inter-national; International HumanRights Organizations and Experts,Human Rights First, The Center forVictims of Torture, The InternationalCommission of Jurists, The WorkingGroup Established by the Commissionon Human Rights on the Use of Mer-cenaries as a Means of Violating Hu-man Rights and Impeding the Exer-cise of the Right of Peoples to Self–Determination, Human Rights Watch,Ilias Bantekas, John Cerone, GeoffreyCorn, David Glazier, Kevin Jon Heller,Michael Newton, Marco Sassoli, GarySolis, Scott M. Sullivan, Dr. AniceeVan Engeland, Amici Supporting Ap-pellee,


Nos. 09–1335, 10–1891, 10–1921.

United States Court of Appeals,Fourth Circuit.

Argued: Jan. 27, 2012.

Decided: May 11, 2012.

Background: Iraqis who had been de-tained at prison in Iraq and elsewherefiled lawsuits against government contrac-tors hired to provide civilian employees toassist the military in communicating withand interrogating detainees, alleging thatthe contractors and certain of their em-ployees were liable in common law tortand under the Alien Tort Statute (ATS)for torturing and abusing them duringtheir incarceration. The United States Dis-trict Court for the Eastern District ofVirginia, Gerald Bruce Lee, J., 657F.Supp.2d 700, and the United States Dis-trict Court for the District of Maryland,Peter J. Messitte, Senior District Judge,728 F.Supp.2d 702, denied the contractors’


respective motions to dismiss certainclaims, and contractors appealed. TheUnited States Court of Appeals for theFourth Circuit, 657 F.3d 201, and 658 F.3d413, reversed and remanded.

Holding: On rehearing en banc, the Courtof Appeals, King, Circuit Judge, held thatorders denying contractors’ motions to dis-miss detainees’ claims against contractorson basis of law-of-war defense, Saleh pre-emption, or Mangold immunity were notsubject to interlocutory appeal under col-lateral order doctrine.

Appeals dismissed.

Duncan, Circuit Judge, filed concurringopinion.

Wynn, Circuit Judge, filed concurringopinion.

Wilkinson, Circuit Judge, filed dissentingopinion in which Niemeyer and Shedd, Cir-cuit Judges, joined.

Niemeyer, Circuit Judge, filed dissentingopinion in which Wilkinson and Shedd, Cir-cuit Judges, joined.

1. Federal Courts O572.1Collateral order doctrine should never

be allowed to swallow the general rule thata party is entitled to a single appeal, to bedeferred until final judgment has been en-tered. 28 U.S.C.A. § 1291.

2. Federal Courts O572.1‘‘Critical question’’ in determining

whether, for purposes of collateral orderdoctrine the right at issue is effectivelyunreviewable in the normal course iswhether the essence of the claimed right isa right not to stand trial, i.e., whether itconstitutes an immunity from suit. 28U.S.C.A. § 1291.

3. Federal Courts O583Law-of-war defense asserted by con-

tractors, who were hired to provide civilian

employees to assist the military in commu-nicating with and interrogating detaineesin Iraqi prison, did not constitute an immu-nity from suit such that court’s denial ofcontractors’ motions to dismiss detainees’tort claims against contractors on basis ofthe defense were not subject to interlocu-tory appeal under collateral order doc-trine. 28 U.S.C.A. § 1291.

4. Federal Courts O583Saleh preemption was a defense to

liability and not an immunity from suit,and therefore orders denying governmentcontractors’ motions to dismiss Iraqi de-tainees’ tort claims against contractors onbasis of Saleh preemption were not subjectto interlocutory appeal under collateral or-der doctrine in suit brought against con-tractors hired to provide civilian employ-ees to assist the military in communicatingwith and interrogating detainees in Iraqiprison. 28 U.S.C.A. § 1291.

5. Federal Courts O572.1Before jurisdiction can be invoked un-

der the collateral order doctrine, a districtcourt must issue a fully consummated deci-sion that constitutes a complete, formal,and final resolution of the issue; if a rulinglacks finality, the threshold requirementfor collateral order review, that the ques-tion in dispute be definitively resolved, isleft wanting. 28 U.S.C.A. § 1291.

6. Federal Courts O572.1A question in dispute cannot be said

to have been conclusively resolved, forpurposes of collateral order doctrine, if adistrict court makes clear that its decisionis a tentative one, and that it might wellchange its mind after further proceedings.28 U.S.C.A. § 1291.

7. Federal Courts O583Although Mangold immunity confers

upon those within its aegis the right not tostand trial, contractors, which were hired


to provide civilian employees to assist themilitary in communicating with and inter-rogating detainees in Iraqi prison, had yetto establish their entitlement to it, andtherefore orders denying government con-tractors’ motions to dismiss Iraqi detain-ees’ tort claims against them on basis ofMangold immunity were not subject tointerlocutory appeal under collateral orderdoctrine. 28 U.S.C.A. § 1291.

ARGUED: Joseph William Koegel,Jr., Steptoe & Johnson, LLP, Washing-ton, D.C.; Ari S. Zymelman, Williams &Connolly, LLP, Washington, D.C., forAppellants. Baher Azmy, Center forConstitutional Rights, New York, NewYork; Susan L. Burke, Burke PLLC,Washington, D.C., for Appellees. H.Thomas Byron, III, United States De-partment of Justice, Washington, D.C.,for Amicus Curiae. ON BRIEF: JohnF. O’Connor, Steptoe & Johnson, LLP,Washington, D.C., for Appellants CACIInternational, Incorporated and CACIPremier Technology, Incorporated. EricR. Delinsky, Zuckerman Spaeder LLP,Washington, D.C.; F. Whitten Peters, F.Greg Bowman, Williams & Connolly,LLP, Washington, D.C., for AppellantsL–3 Services, Incorporated and AdelNakhla. Susan M. Sajadi, Burke PLLC,Washington, D.C.; Katherine Gallagher,J. Wells Dixon, Center for ConstitutionalRights, New York, New York; JosephF. 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., forKellogg Brown & Root Services, Incor-porated, Amicus Supporting AppellantsCACI International, Incorporated, and

CACI Premier Technology, Incorporated;Joshua S. Devore, Agnieszka M. Frysz-man, Maureen E. McOwen, Cohen Mil-stein Sellers & Toll PLLC, Washington,D.C., for Professors of Civil Procedureand Federal Courts, Amici SupportingAppellees. Jennifer B. Condon, SetonHall University School of Law, Centerfor Social Justice, Newark, New Jersey;John J. Gibbons, Lawrence S. Lustberg,Jonathan M. Manes, Gibbons P.C., New-ark, New Jersey, for Retired MilitaryOfficers, Amici Supporting Appellees.Gabor Rona, Melina Milazzo, HumanRights First, New York, New York;Robert P. LoBue, Ella Campi, RichardKim, Elizabeth Shofner, Patterson Belk-nap Webb & Tyler LLP, New York,New York, for International HumanRights Organizations and Experts, AmiciSupporting Appellees. Marco Simons,Richard Herz, Marissa Vahlsing, Jona-than Kaufman, Earthrights International,Washington, D.C., for Earthrights Inter-national, Amicus Supporting Appellees.Tony West, Assistant Attorney General,Michael S. Raab, United States Depart-ment of Justice, Washington, D.C., forAmicus Curiae.

Before TRAXLER, Chief Judge, andWILKINSON, 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 whichChief Judge TRAXLER and JudgesMOTZ, GREGORY, DUNCAN, AGEE,DAVIS, KEENAN, WYNN, DIAZ, andFLOYD joined. Judge DUNCAN wrote aconcurring opinion, in which Judge AGEEjoined. Judge WYNN wrote a concurringopinion. Judge WILKINSON wrote adissenting opinion, in which JudgeNIEMEYER and Judge SHEDD joined.


Judge NIEMEYER wrote a dissentingopinion, in which Judge WILKINSON andJudge SHEDD joined.

OPINION

KING, Circuit Judge:

Following the 2003 invasion of Iraq, theUnited States military took control of AbuGhraib prison near Baghdad, using it todetain criminals, enemies of the provisionalgovernment, and other persons thought topossess information regarding the anti-Co-alition insurgency. The United Statescontracted with CACI International, Incor-porated (with CACI Premier Technology,Incorporated, together referred to hereinas ‘‘CACI’’), and Titan Corporation, nowL–3 Services, Incorporated (‘‘L–3’’), toprovide civilian employees to assist themilitary in communicating with and inter-rogating this latter group of detainees.

On June 30, 2008, a number of Iraqiswho had been detained at Abu Ghraib andelsewhere filed lawsuits against CACI andL–3 in the Southern District of Ohio andthe District of Maryland, alleging that thecontractors and certain of their employeeswere liable in common law tort and underthe Alien Tort Statute (‘‘ATS’’), 28 U.S.C.§ 1350, for torturing and abusing themduring their incarceration. Following theunopposed transfer of the Ohio action tothe Eastern District of Virginia, whereCACI is headquartered, Suhail Najim Ab-dullah Al Shimari and three co-plaintiffssubmitted an Amended Complaint assert-ing 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 sexualabuse and humiliation, and traumatizedthem with mock executions and other sa-distic acts. In the operative SecondAmended Complaint filed in the companionlitigation, seventy-two plaintiffs, headed byWissam Abdullateff Sa’eed Al–Quraishi,detailed similar allegations against L–3and Adel Nakhla, an L–3 employee resid-ing in Maryland.1

I.

A.

On September 15, 2008, CACI moved todismiss the Amended Complaint filed inthe Eastern District of Virginia, maintain-ing generally that, among other things: (1)the dispute presented a nonjusticiable po-litical question; (2) the inevitable applica-tion of the law of occupied Iraq renderedCACI, as part of the occupying power,immune from suit under Coleman v. Ten-nessee, 97 U.S. 509, 24 L.Ed. 1118 (1878),and Dow v. Johnson, 100 U.S. 158, 25L.Ed. 632 (1879); (3) the plaintiffs’ claimswere preempted by the ‘‘combatant activi-ties’’ exception to the Federal Tort ClaimsAct (the ‘‘FTCA’’), see 28 U.S.C. § 2680(j),discussed in Ibrahim v. Titan Corp., 556F.Supp.2d 1 (D.D.C.2007), and subsequent-ly adopted on appeal, see Saleh v. TitanCorp., 580 F.3d 1 (D.C.Cir.2009) (citingBoyle v. United Tech. Corp., 487 U.S. 500,108 S.Ct. 2510, 101 L.Ed.2d 442 (1988));and (4) the company was entitled to abso-lute official immunity in accordance withMangold v. Analytic Services, Inc., 77F.3d 1442 (4th Cir.1996), because its em-ployees had performed delegated govern-mental functions. With respect to the

1. CACI and L–3 were each initially named asdefendants in both lawsuits. Within a coupleof months following commencement of thelitigation, however, CACI was voluntarily dis-missed from the Maryland action and thesame 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.


ATS claims, CACI proffered several addi-tional arguments, none of them relevanthere in light of the claims’ eventual dis-missal. See infra at 210.

L–3’s motion to dismiss the SecondAmended Complaint in the Maryland ac-tion, filed on November 26, 2008, and inwhich Nakhla joined, was predicated es-sentially along the same lines as CACI’s,though it characterized Mangold as involv-ing the application of derivative sovereignimmunity instead of absolute official immu-nity. As CACI had previously done, L–3invoked the political question doctrine, cit-ed the Supreme Court’s decisions in Cole-man and Dow (the ‘‘law-of-war defense’’),and requested (through supplementalbriefing) that the court adopt the combat-ant activities exception ultimately appliedin Saleh (‘‘Saleh preemption’’). L–3 simi-larly advocated for dismissal of the ATSclaims on substantially the same groundsidentified by CACI.2

1.

On March 19, 2009, the district court inVirginia entered a Memorandum Orderdismissing the ATS claims against CACI,but permitting the common-law tort claimsto proceed. See Al Shimari v. CACI Pre-mier Tech., Inc., 657 F.Supp.2d 700(E.D.Va.2009). In so ruling, the court ac-knowledged its considerable reservationsthat the action implicated a political ques-tion, in that CACI, a private entity, wasnot the United States, and only low-levelmilitary and governmental personnel ap-peared to have been involved in the allegedmistreatment. See id. at 708–14. Thecourt was similarly doubtful that the fore-seeable application of Iraqi law requireddismissal in light of CACI’s apparent sta-

tus as an arms-length contractor, ‘‘becauseeven if the law of a foreign jurisdictionwere to govern any of the Plaintiffs’claims, it would not regulate the conduct ofthe United States, a non-party to this suitbetween private parties.’’ Id. at 725.

The dividing line between the bona fidemilitary and its civilian support personnelalso fueled the district court’s uncertaintythat the latter could have engaged in war-time activities as a ‘‘combatant’’ for pur-poses of adopting the D.C. Circuit’s theoryof FTCA preemption. See Al Shimari,657 F.Supp.2d at 720–21. The court con-cluded that, in any event, the plaintiffs’allegations of torture at the hands of CACIfailed to implicate the uniquely federal in-terests or irreconcilable conflict with statelaw that animated the Supreme Court’sdecision in Boyle, on which Saleh relied.See id. at 722–25.

Regarding CACI’s claim of derivativeimmunity under Mangold, the districtcourt set forth its view that the validity ofsuch a claim depends on whether its pro-ponent, in committing the act complainedof, was ‘‘ ‘exercising discretion while actingwithin the scope of their employment.’ ’’Al Shimari, 657 F.Supp.2d at 715 (empha-sis omitted) (quoting Mangold, 77 F.3d at1446). Citing ‘‘a very limited factual rec-ord,’’ the court expressed its skepticismthat CACI had established at the dismissalstage that its treatment of the plaintiffs atAbu Ghraib involved the exercise of discre-tion. Id. The court stated further that itwas ‘‘completely bewildered’’ by the sug-gestion that it could accept CACI’s repre-sentations that the company had per-formed within the scope of its agreementwith the government ‘‘when the contract isnot before the Court on this motion.’’ Id.at 717. On March 23, 2009, CACI noted

2. The Maryland district court denied L–3’sdismissal motion as to the ATS claims. Seeinfra at 212. L–3 maintains on appeal thatthis ruling was in error, but it confines its

argument to the identical grounds urged insupport of its primary contention that thecourt below incorrectly declined to dismissthe state-law tort claims.


its appeal (No. 09–1335) from the districtcourt’s ruling.

2.

The assertion of Mangold immunity wasviewed much the same way by the district

court in Maryland, which, in its Opinion ofJuly 29, 2010, concluded that, ‘‘relying onthe information in the [Second Amended]Complaint, it is clearly too early to dismissDefendants.’’ Al–Quraishi v. Nakhla, 728F.Supp.2d 702, 735 (D.Md.2010).3 The dis-

3. In Mangold, we reversed the district court’sdenial of immunity to the defendant govern-ment contractor and its employees in a law-suit brought by an Air Force officer and hiswife for statements the contractor made tomilitary officials investigating the officer’s al-leged misconduct. L–3 and CACI have eachrelied heavily on Mangold for the propositionthat our decision in that case likewise entitlesthem to immunity for the tort claims assertedby the plaintiffs here. The Maryland districtcourt, noting the defendants’ additional reli-ance on Butters v. Vance International, Inc.,225 F.3d 462 (4th Cir.2000), characterizedthe immunity claimed as being in the natureof derivative sovereign immunity, which thecourt described as ‘‘protect[ing] agents of thesovereign from liability for carrying out thesovereign’s will.’’ Al–Quraishi, 728F.Supp.2d at 736. The court distinguishedMangold, opining that the immunity discussedtherein ‘‘was based on a combination of de-rivative absolute official immunity and wit-ness immunity, doctrines that differ from de-rivative sovereign immunity.’’ Al–Quraishi,728 F.Supp.2d at 736.

The distinction drawn by the district courtfinds support in the text of Mangold, as ex-pressed by our careful observation that thepublic policy justifying the grant of absoluteimmunity to federal officials exercising job-related discretion ‘‘provide[d] only a partialfoundation for protecting’’ the defendant con-tractor in that case. Mangold, 77 F.3d at1448 (citing Westfall v. Erwin, 484 U.S. 292,300, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988)).The remainder of that foundation was sup-plied by ‘‘the common law privilege to testifywith absolute immunity in courts of law, be-fore grand juries, and before government in-vestigators.’’ Id. at 1449. According to theMaryland district court, derivative absoluteofficial immunity (invoked by CACI and moredirectly addressed by the Virginia districtcourt in Al Shimari ) ‘‘ensures that discretion-ary governmental decision makers are able toefficiently exercise their discretion in the bestinterests of the Government without ‘the po-tentially debilitating distraction of defending

private lawsuits.’ ’’ Id. (quoting Mangold, 77F.3d at 1446). While Mangold immunity cer-tainly has the effect of removing the potentialdistraction of litigation, it is important to notethe narrow scope of the immunization actual-ly authorized in that case, which we applied‘‘only insofar as necessary to shield state-ments and information, whether truthful ornot, given by a government contractor and itsemployees in response to queries by govern-ment investigators engaged in an official in-vestigation.’’ 77 F.3d at 1449. In light ofour disposition of these appeals, infra, weexpress no opinion as to the merits of anyimmunity asserted by the defendants in gener-al, or as to the pertinence of our Mangoldprecedent in particular, but instead leavethose matters for the district courts to consid-er in the first instance should they arise onremand.

The difference between derivative sovereignimmunity and derivative absolute official im-munity (including any offshoots thereof) ap-pears to be a fine one that may depend on thedegree of discretion afforded the contractorby the government, which, at this stage of thelitigation, is not a question capable of finalresolution in either proceeding. Were thatnot the case, the distinction could be crucial,in that fully developed rulings denying abso-lute official immunity are immediately appeal-able, while denials based on sovereign immu-nity (or derivative claims thereof) may not be.See Hous. Cmty. Hosp. v. Blue Cross & BlueShield of Tex., Inc., 481 F.3d 265, 279 (5thCir.2007) (denial of derivative sovereign im-munity not appealable); Alaska v. UnitedStates, 64 F.3d 1352, 1356 (9th Cir.1995) (de-nial 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 SiteLitigation, 521 F.3d 169, 191 (2d Cir.2008)(disagreeing with foregoing authorities). Al-though the degree to which Mangold controlsthe specific assertions of immunity in thesecases is yet to be decided, we will, for simplic-ity’s sake, continue to refer to L–3 and CACIas having asserted ‘‘Mangold immunity.’’


trict court perceived no such record defi-ciencies concerning L–3’s and Nakhla’s al-ternative bases for dismissal, however,deeming the facts as pleaded sufficient toreject outright both defendants’ argu-ments. The court thus denied the motionto dismiss with respect to all claims, in-cluding those premised on the ATS. Seeid. at 724–33, 736–60. From the court’saccompanying Order, L–3 noted its appeal(No. 10–1891) on August 4, 2010, followedtwo days later by another appeal (No. 10–1921) noted on behalf of Nakhla.

B.

The appeals in Al–Quraishi were consol-idated and argued in seriatim with the AlShimari appeal before a panel of thisCourt on October 26, 2010. Apart fromurging our affirmance on the merits, theplaintiffs in each matter alternativelymaintained that we lacked appellate juris-diction over the district courts’ non-finalorders denying the contractors’ respectivemotions to dismiss. On September 21,2011, we issued opinions in both cases, inwhich a majority of the panel concludedthat jurisdiction was proper in this Court,and that the district courts had erred inpermitting the claims against the contrac-tors to proceed. See Al Shimari v. CACIInt’l, Inc., 658 F.3d 413 (4th Cir.2011); Al–Quraishi v. L–3 Servs., Inc., 657 F.3d 201

(4th Cir.2011).4 Consistently therewith,we entered separate judgments reversingthe orders on appeal and remanding withinstructions to dismiss both proceedings.

On November 8, 2011, upon the timelypetitions of the plaintiffs, see Fed. R.App.P. 35(b)-(c), we entered an Order grantingen banc rehearing of all three appeals,thereby vacating our prior judgments.The appeals were thereafter consolidatedfor purposes of oral argument, which wasconducted before the en banc Court onJanuary 27, 2012.5 Having fully consid-ered the briefs and arguments of the par-ties, together with the written and oralsubmissions of the amici curiae permittedleave to participate, we conclude that welack jurisdiction over these interlocutoryappeals, and we therefore dismiss them.6

II.

A.

Except for the limited categories of in-terlocutory orders set forth at 28 U.S.C.§ 1292, federal appellate jurisdiction is re-served for ‘‘final decisions of the districtcourts of the United States.’’ 28 U.S.C.§ 1291. It is undisputed that the decisionsunderlying these putative appeals are in-terlocutory, at least in the proceduralsense, in that no final order or judgmenthas been entered by either district court.

4. We released both of our panel opinions onSeptember 21, 2011, following the SupremeCourt’s denial of certiorari in Saleh on June27, 2011. We had previously, on March 11,2011, placed these appeals in abeyance pend-ing resolution of the Saleh certiorari petition.

5. At our invitation, the Department of Justice,on behalf of the United States, submitted anamicus brief and participated in oral argu-ment. Therein, the government took the posi-tion that we were without jurisdiction to de-cide these appeals. Just prior to argument,we granted the defendants leave to submitsupplemental briefs in response to the govern-ment’s amicus submission, after which the

plaintiffs moved to tender their own supple-

mental briefs. We grant the plaintiffs’ mo-

tions and accept their supplemental replies

for consideration.

6. The arguments and contentions before us in

these appeals, though not identically present-

ed or emphasized, are nonetheless substan-

tially similar enough that we are content to

continue the appeals’ consolidation for pur-

poses 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.’’


It is also without contest that neither or-der has been certified appealable by theissuing court pursuant to 28 U.S.C.§ 1292(b), and that none of that statute’sprovisions otherwise apply to confer juris-diction on this Court.

Consequently, the only way we may beentitled to review the orders on appeal is ifthey are among ‘‘that small class [of deci-sions] which finally determine claims ofright separable from, and collateral to,rights asserted in the action, too importantto be denied review and too independent ofthe cause itself to require that appellateconsideration be deferred until the wholecase is adjudicated.’’ Cohen v. BeneficialIndus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 93 L.Ed. 1528 (1949). Ex-pounding on the topic, the Supreme Courthas emphasized that an appealable Cohenorder must ‘‘[1] conclusively determine thedisputed question, [2] resolve an importantissue completely separate from the meritsof the action, and [3] be effectively unre-viewable on appeal from a final judgment.’’Will v. Hallock, 546 U.S. 345, 349, 126S.Ct. 952, 163 L.Ed.2d 836 (2006) (altera-tions in original) (internal quotation marksomitted).

Cohen involved a stockholder’s deriva-tive action for mismanagement and fraud,in which the Supreme Court reviewed thedistrict court’s threshold decision decliningto enforce a state law requiring plaintiffsin such cases to post security ensuringpayment of attorney fees in the event thedefendant corporation prevailed. Deeming

the appeal properly taken, the Court de-clared no exception to the jurisdictionalprerequisites of 28 U.S.C. § 1291, but in-stead described what would subsequentlybe coined the ‘‘collateral order doctrine,’’MacAlister v. Guterma, 263 F.2d 65, 67(2d Cir.1958), as a ‘‘practical, rather than atechnical construction’’ of the statute. Co-hen, 337 U.S. at 546, 69 S.Ct. 1221.

The federal courts of appeals have con-sistently been charged with keeping a tightrein on the types of orders suitable forappeal consistent with Cohen. We aretherefore bound to maintain ‘‘a healthyrespect for the virtues of the final-judg-ment rule.’’ Mohawk Indus., Inc. v. Car-penter, ––– U.S. ––––, 130 S.Ct. 599, 605,175 L.Ed.2d 458 (2009); see also Will, 546U.S. at 350, 126 S.Ct. 952 (‘‘[W]e have notmentioned applying the collateral orderdoctrine recently without emphasizing itsmodest scope.’’).7

The Supreme Court’s concern, as ex-pressed through its repeated admonitions,is amply justified. The appellate courtsare, by design, of limited jurisdiction;thus, accepting prejudgment appeals as amatter of course would ‘‘undermine[ ] effi-cient judicial administration and en-croach[ ] upon the prerogatives of districtcourt judges, who play a special role inmanaging ongoing litigation.’’ Mohawk,130 S.Ct. at 605 (internal quotation marksomitted). In addition, routine interlocutoryreview would unacceptably subject merito-rious lawsuits to ‘‘the harassment and cost

7. This ‘‘modest scope’’ is apparent from theshort list of orders approved by the SupremeCourt for immediate review under Cohen.See Osborn v. Haley, 549 U.S. 225, 238–39,127 S.Ct. 881, 166 L.Ed.2d 819 (2007) (denialof substitution of United States under WestfallAct); P.R. Aqueduct & Sewer Auth. v. Metcalf& Eddy, Inc., 506 U.S. 139, 144–45, 113 S.Ct.684, 121 L.Ed.2d 605 (1993) (denial to stateof claimed Eleventh Amendment immunity);Harlow v. Fitzgerald, 457 U.S. 800, 817–18,

102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (denialof qualified immunity from suit pursuant to42 U.S.C. § 1983); Nixon v. Fitzgerald, 457U.S. 731, 742, 102 S.Ct. 2690, 73 L.Ed.2d 349(1982) (denial to president of absolute immu-nity); Helstoski v. Meanor, 442 U.S. 500, 508,99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (denial ofSpeech and Debate Clause immunity); Abneyv. United States, 431 U.S. 651, 660, 97 S.Ct.2034, 52 L.Ed.2d 651 (1977) (denial of doublejeopardy bar).


of a succession of separate appeals fromthe various rulings to which a litigationmay give rise, from its initiation to entry ofjudgment.’’ Firestone Tire & Rubber Co.v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669,66 L.Ed.2d 571 (1981) (internal quotationmarks omitted).

[1] Moreover, there is no need to con-strue Cohen broadly given the existence ofa suitable alternative. The ‘‘safety valve’’of discretionary interlocutory review under28 U.S.C. § 1292(b) is frequently a ‘‘bettervehicle for vindicating [certain] serious TTT

claims than the blunt, categorical instru-ment of [a] § 1291 collateral order appeal.’’Digital Equip. Corp. v. Desktop Direct,Inc., 511 U.S. 863, 883, 114 S.Ct. 1992, 128L.Ed.2d 842 (1994). Accordingly, the col-lateral order doctrine should ‘‘never beallowed to swallow the general rule that aparty is entitled to a single appeal, to bedeferred until final judgment has been en-tered.’’ Id. at 868, 114 S.Ct. 1992 (citationomitted).

B.

[2] Although a properly appealable col-lateral order under Cohen must of coursesatisfy all of the Will requirements, itshallmark is the encapsulation of a rightwhose abridgement is ‘‘effectively unre-viewable’’ should appellate review awaitfinal judgment. See Henry v. LakeCharles Am. Press LLC, 566 F.3d 164, 177(5th Cir.2009) (describing unreviewabilityas ‘‘the fundamental characteristic of thecollateral order doctrine’’ (citation omit-ted)). The ‘‘critical question’’ in determin-ing whether the right at issue is effectivelyunreviewable in the normal course ‘‘iswhether the essence of the claimed right isa right not to stand trial’’—that is, wheth-er it constitutes an immunity from suit.Van Cauwenberghe v. Biard, 486 U.S. 517,524, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988)(internal quotation marks omitted). Ab-

sent an immediate appellate review of thedenial of an immunity claim, the right notto 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 ofthe court’’—that is, a defense to liability—then the right can be vindicated just asreadily on appeal from the final judgment,and the collateral order doctrine does notapply. Id. at 527, 108 S.Ct. 1945.

In assessing whether the right sought tobe protected constitutes a true immunityand not merely a defense, ‘‘§ 1291 requires[the court] of appeals to view claims of a‘right not to be tried’ with skepticism, ifnot a jaundiced eye.’’ Digital Equip., 511U.S. at 873, 114 S.Ct. 1992. As the Su-preme Court has cautioned, ‘‘[o]ne must becareful TTT not to play word games withthe concept of a ‘right not to be tried,’ ’’Midland Asphalt Corp. v. United States,489 U.S. 794, 801, 109 S.Ct. 1494, 103L.Ed.2d 879 (1989), as ‘‘virtually everyright that could be enforced appropriatelyby pretrial dismissal might loosely be de-scribed as conferring a right not to standtrial,’’ Digital Equip., 511 U.S. at 873, 114S.Ct. 1992. It is within the foregoingframework that we review de novo theappealability of the district courts’ denialorders. See Mitchell v. Forsyth, 472 U.S.511, 528–30, 105 S.Ct. 2806, 86 L.Ed.2d 411(1985) (equating denials of qualified immu-nity to collateral denials of other assertedimmunities or of double jeopardy invoca-tions, and deeming de novo standard prop-er based on non-deferential review of lat-ter claims).

III.

In Doe v. Exxon Mobil Corp., 473 F.3d345 (D.C.Cir.2007), the District of Colum-bia Circuit confronted an attempted appealfrom the district court’s interlocutory or-der refusing to dismiss an action brought


by Indonesian villagers alleging serious in-juries visited upon them by members ofthat nation’s military in the defendants’private employ. According to the defen-dants, the dispute presented a nonjusticia-ble political question. The court of ap-peals declined to address the merits of theissue, noting the absence of ‘‘a single casein which a federal appeals court held thatdenial of a motion to dismiss on politicalquestion grounds is an immediately ap-pealable collateral order.’’ Id. at 352.8

That case yet appears to be lacking, andthe appellants do not contend to the con-trary. L–3, however, ventures that anappellate court may determine whether anaction is a political question or otherwisenonjusticiable when it has proper jurisdic-tion over a different issue pursuant toCohen or § 1292(b), if consideration of theformer is ‘‘necessary to ensure meaningfulreview.’’ Swint v. Chambers Cnty.Comm’n, 514 U.S. 35, 51, 115 S.Ct. 1203,131 L.Ed.2d 60 (1995). We may also exer-cise so-called ‘‘pendent’’ appellate jurisdic-tion in circumstances where the question is‘‘inextricably intertwined’’ with anotherthat may be immediately reviewed. Id.;see Rux v. Republic of Sudan, 461 F.3d461, 476 (4th Cir.2006).

L–3’s argument necessarily supposes theexistence of an otherwise valid jurisdiction-al basis for its appeal. Absent an indepen-dently reviewable issue with which the po-litical question doctrine may be inexorablybound, or one that cannot be reviewed in ameaningful fashion without addressing thejusticiability of the underlying dispute, we

are without authority to make any pro-nouncement on that aspect of the appel-lants’ defense. We therefore withhold forthe moment substantive comment on thepolitical question doctrine, at least until weevaluate whether the law-of-war defense,Saleh preemption, or Mangold immunityprovides the jurisdictional green light forus to proceed.

A.

The appellants characterize their formerpresence in Iraq as ‘‘occupying forces’’ (L–3) or ‘‘occupying personnel’’ (CACI) thatare answerable ‘‘only to their country’scriminal laws,’’ Opening Br. of CACI at 25,and thus ‘‘not subject to civil suits by theoccupied,’’ Opening Br. of L–3 at 22–23.In that regard, the appellants equate theirsituation with those of the Civil War sol-diers in Coleman v. Tennessee, 97 U.S.509, 24 L.Ed. 1118 (1878), and Dow v.Johnson, 100 U.S. 158, 166, 25 L.Ed. 632(1879), who sought relief from judgmentsentered against them for their wartimeacts. The defendant in Coleman had beenconvicted and sentenced to death by aTennessee state court for murdering a ci-vilian, though the same judgment and sen-tence had been previously imposed as theresult of a United States Army court-mar-tial. Dow, by contrast, involved a chal-lenge to a civil judgment entered in Louisi-ana against a Union general after forcesunder his command had seized the plain-tiff’s private property in furtherance of thewar effort.

8. The D.C. Circuit was presented in Doe withthe same argument the appellants make here:that the denial of a dismissal motion premisedon the separation of powers doctrine is anappealable collateral order under Cohen be-cause immediate review ‘‘is necessary to pro-tect the executive branch from judicial intru-sion into sensitive foreign policy matters’’ thatcould not be remedied on appeal from a final

judgment. 473 F.3d at 351. The Doe court

squarely rejected that mistaken notion, how-

ever, explaining that although the Supreme

Court has ‘‘identif[ied] ‘honoring the separa-

tion 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.


Neither judgment was permitted tostand. In both cases, the Supreme Courtconsidered the states of the Confederacyto have been ‘‘the enemy’s country,’’ towhose tribunals the ‘‘[o]fficers and soldiersof the armies of the Union were not sub-ject.’’ Coleman, 97 U.S. at 515. TheCourt expressed its bewilderment that acontrary result could obtain ‘‘from the verynature of war,’’ concluding that ‘‘the tribu-nals of the enemy must be without juris-diction to sit in judgment upon the militaryconduct of the officers and soldiers of theinvading army. It is difficult to reasonupon a proposition so manifest; its cor-rectness is evident upon its bare announce-ment.’’ Dow, 100 U.S. at 165.

Some differences between the disputesat bar and those underlying Coleman andDow are readily evident. Most salient isthat the civilian employees of CACI andL–3 assigned to Abu Ghraib were not sol-diers. The idea that those employeesshould nonetheless be treated like full-fledged members of the military pervadesthis litigation, though the concept reso-nates with more force as to some of theappellants’ other defenses, particularly Sa-leh preemption and Mangold immunity.But cf. Ford v. Surget, 97 U.S. 594, 601–02,24 L.Ed. 1018 (1878) (relieving Mississippicivilian from liability for burning landown-er’s cotton where destruction ordered byConfederate army in face of Union ad-vance and those ‘‘commands would havebeen undoubtedly enforced by the samemeans of coercion as if he had been anenlisted soldier’’). The potential liabilityof government contractors was front andcenter in both Saleh and Mangold, and ifthe legal principles in either case (or both)are deemed apposite to the dispute at bar,there is little question that the appellants,as contractors themselves, may avail them-selves of them.

Another distinction is that the appellantsattempt to invoke the law-of-war defenseexclusively on the assertion that their al-leged wrongs will be evaluated under Iraqilaw, and not the laws of Virginia, Mary-land, or another state. If true, that mayor may not be enough to bring Colemanand Dow into play, inasmuch as the over-riding concern in those cases appears tohave been less about the application of thecriminal law of Tennessee or of Louisianatort law (there being no suggestion thateither differed significantly from the analo-gous law applied by the defendants’ statesof citizenry), and more about the jurisdic-tion of the ‘‘foreign’’ courts. See Coleman,97 U.S. at 516 (musing that ‘‘there wouldbe something incongruous and absurd inpermitting an officer or soldier of an in-vading army to be tried by his enemy’’);Dow, 100 U.S. at 163 (identifying ‘‘[t]heimportant question’’ for resolution aswhether nation’s military could be heldliable ‘‘in the local tribunals’’). Here, ofcourse, the appellants are being sued ontheir home turf, in courts that are indis-putably domestic.

Even assuming that the facts before uscan be viewed in such a fashion to permitColeman and Dow to apply, there is noindication from the opinions in those casesthat the Supreme Court intended to con-strue the law-of-war defense as an immuni-ty from suit, rather than merely an insula-tion from liability. See Dow, 100 U.S. at165 (characterizing dispute as concerningpersonal jurisdiction); Lauro Lines s.r.l. v.Chasser, 490 U.S. 495, 500, 109 S.Ct. 1976,104 L.Ed.2d 548 (1989) (‘‘[W]e have de-clined to hold the collateral order doctrineapplicable where a district court has de-nied a claim TTT that the suit against thedefendant is not properly before the TTT

court because it lacks jurisdiction.’’). Inits subsequent Ford opinion, with judg-ment having been entered against the de-fendant on a jury verdict, the Court in no


way indicated that trial should not havebeen had.

[3] Indeed, it seems a bit curious toimagine the nineteenth century Court re-garding its decisions in the Civil War casesas having durable precedential effect; theappeals afforded an unusual opportunityfor substantive domestic review of whatwere, in effect, foreign pronouncements ofjudgment. But to the extent that Cole-man and Dow possess continued relevancebeyond their immediate context, it is none-theless clear that the issues presented inthose cases were effectively reviewed anddisposed of on appeal, and, as such, themanner in which the Supreme Court choseto resolve them fails to compel the conclu-sion that immunity must be accorded allprospective defendants who insist they aresimilarly situated. The law-of-war defensethus provides no basis for an interlocutoryappeal in this case.

B.

[4] In a like fashion, Saleh preemptionfalls squarely on the side of being a de-fense to liability and not an immunity from

suit. Immunity, according to the SupremeCourt, derives from ‘‘an explicit statutoryor constitutional guarantee that trial willnot occur.’’ Midland Asphalt Corp. v.United States, 489 U.S. 794, 801, 109 S.Ct.1494, 103 L.Ed.2d 879 (1989) (emphasisadded).9 There is no contention that theSupreme Court in Boyle v. United Tech-nologies Corp., 487 U.S. 500, 108 S.Ct.2510, 101 L.Ed.2d 442 (1988), from whichSaleh preemption is derived, relied on anysuch explicit guarantee embodied in stat-ute or in the Constitution. Boyle preemp-tion (and, thus, Saleh preemption) is, ipsofacto, not immunity.

We are not the first court to arrive atthis ineluctable conclusion. In Martin v.Halliburton, 618 F.3d 476, 487 (5th Cir.2010), the Fifth Circuit similarly reckonedthat ‘‘the combatant activities exception isnot subject to a sui generis exemptionfrom the ordinary jurisdictional require-ments for denials of preemption claims.’’ 10

Indeed, the Boyle Court itself repeatedlyframed the preemption it recognized ascreating a mere defense to liability. See,e.g., 487 U.S. at 507, 108 S.Ct. 2510 (‘‘The

9. The Supreme Court has properly dismissedthe mistaken notion that Midland Asphalt ’s‘‘explicit TTT guarantee’’ requirement is intension with the immediate appealability ofan order denying qualified immunity, an in-herently equivocal term that appears to con-note only an implicit guarantee against theburdens of trial. Any tension can only becharacterized as chimerical, however, in lightof qualified immunity’s ‘‘good pedigree inpublic law,’’ which more than makes up forits implicitness. Digital Equip., 511 U.S. at875, 114 S.Ct. 1992. The argument that animmunity need not be explicit in order forjurisdiction to lie under the collateral orderdoctrine ‘‘only leaves [the proponent of juris-diction] with the unenviable task of explainingwhy other rights that might fairly be said toinclude an (implicit) ‘right not to stand trial’aspect are less in need of protection by imme-diate review, or more readily vindicated onappeal from final judgment, than’’ the right

the proponent asserts is an implicit right to befree from suit. Id. at 875–76, 114 S.Ct. 1992.

10. See also Rodriguez v. Lockheed MartinCorp., 627 F.3d 1259 (9th Cir.2010), in whichthe court addressed its jurisdiction over aninterlocutory appeal premised on the discre-tionary functions exception to the FTCA. Ac-cording to the Rodriguez court, because theright recognized by Boyle was merely a ‘‘de-fense to judgment’’—and not, like qualifiedimmunity, a ‘‘right not to be required to go totrial’’—nothing is irretrievably lost by the lackof an immediate appeal from an adverse pre-trial ruling. Rodriguez, 627 F.3d at 1266.The Ninth Circuit emphasized that Boyle didnot devise a new species of immunity, butmerely recognized that ‘‘ ‘whether the factsestablish the conditions for the [governmentcontractor] defense is a question for thejury.’ ’’ Id. at 1265 (quoting Boyle, 487 U.S.at 514, 108 S.Ct. 2510).


imposition of liability on Government con-tractors [in the military procurement con-text] will directly affect the terms of Gov-ernment contracts.’’); id. at 511–12, 108S.Ct. 2510 (‘‘The financial burden of judg-ments against the contractors would ulti-mately be passed through TTT to the Unit-ed States itself.’’); id. at 512, 108 S.Ct.2510 (‘‘[S]tate law which holds Governmentcontractors liable for design defects in mil-itary equipment does in some circum-stances present a ‘significant conflict’ withfederal policy and must be displaced.’’).

It is tempting, we suppose, to blur theline between an eventual frustration of lia-bility and the more immediate right toavoid suit altogether. One might be per-suaded to consider the words ‘‘preemption’’and ‘‘immunity’’ as mere labels that aremore or less synonymous with each other,or to presume that the former can effec-tively operate as the latter. But merelyrepackaging for the sake of conveniencethe preemption defense derived fromBoyle as ‘‘combatant activities immunity,’’as our good colleague Judge Niemeyerdoes in speaking for the dissenters, post at259, is patently incorrect.

Though Boyle preemption, like sover-eign immunity, may be invoked to barstate law claims, the encapsulated rightsserve distinct purposes. State law claimsare preempted under Boyle simply be-

cause the imposition of liability in suchsituations is irreconcilable with uniquelyfederal interests. The right conferredthrough federal preemption, in otherwords, is the right not to be bound by ajudgment stemming from state law duties.

In stark contrast, immunity has consis-tently been administered as a protectionagainst the burden of litigation altogether.See Mitchell v. Forsyth, 472 U.S. 511, 525–27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).Further, as the court of appeals explainedin Rodriguez v. Lockheed Martin Corp.,627 F.3d 1259, 1265 (9th Cir.2010), ‘‘[a]l-though the source of the government con-tractor defense [recognized in Boyle ] isthe United States’ sovereign immunity,’’the preemption defense is not itself a spe-cies thereof. To the contrary, entitlementto preemption ‘‘is only a corollary financialbenefit flowing from the government’s sov-ereign immunity.’’ Id. Accordingly,Boyle ’s ‘‘government contractor defensedoes not confer sovereign immunity oncontractors,’’ and as such, the denial of thedefense is not immediately appealable. Id.(internal quotation marks omitted).

Importantly, the law requires that weassess the appealability of a potentiallyqualifying collateral order in a categoricalsense, and not on a case-by-case basis.11

Conducting that assessment here leads tothe conclusion that the denial of a preemp-

11. Whether to recognize an order as collater-al is not ‘‘an individualized jurisdictional in-quiry,’’ but rather is based ‘‘on the entirecategory to which a claim belongs.’’ Mo-hawk, 130 S.Ct. at 605. Consequently, ‘‘wedo not now in each individual case engage inad hoc balancing to decide issues of appeala-bility.’’ Johnson v. Jones, 515 U.S. 304, 315,115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Itfollows that ‘‘the issue of appealability under§ 1291 is to be determined TTT without re-gard to the chance that the litigation at handmight be speeded, or a particular justiceaverted, by a prompt appellate court deci-sion.’’ Digital Equip., 511 U.S. at 868, 114

S.Ct. 1992. Although the presence of a ‘‘sub-

stantial public interest,’’ or ‘‘some particular

value of a high order,’’ is a necessary prereq-

uisite to a collateral order appeal, Will, 546

U.S. at 352–53, 126 S.Ct. 952, the identifica-

tion of such a public interest is not the end of

the inquiry. As the Supreme Court explained

in Mohawk, ‘‘[t]he crucial question TTT is not

whether an interest is important in the ab-

stract; 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.


tion claim stemming from the combatantactivities exception would not necessarilyentail significant scrutiny of sensitive mili-tary issues. Fundamentally, there is littleintrusion because the court’s inquiry focus-es on whether the contractor compliedwith the government’s specifications andinstructions, and not the wisdom or cor-rectness thereof. The Boyle and Salehdecisions themselves well illustrate thelack of intrusion that would result fromdeferring review until after entry of a finaljudgment. Boyle, for example, involved anappeal from a jury verdict for the plaintiff,while ‘‘the two appeals in Saleh reachedthe D.C. Circuit using the normal machin-ery of §§ 1291 and 1292(b).’’ Martin, 618F.3d at 488.12

Moreover, the district court in Saleh hadconducted extensive discovery ‘‘regardingthe military’s supervision of the contractemployees as well as the degree to whichsuch employees were integrated into themilitary chain of command,’’ 580 F.3d at 4,with no ill effects. The Fifth Circuit, whileacknowledging that Boyle preemption isunderpinned by ‘‘a respect for the inter-ests of the Government in military mat-ters,’’ has nonetheless reasoned that thoseinterests can be safeguarded without re-

sort to interlocutory review. Martin, 618F.3d at 488. For example, a district court‘‘should take care to develop and resolvesuch defenses at an early stage whileavoiding, to the extent possible, any inter-ference with military prerogatives.’’ Id.Additionally, a trial court should consider‘‘limiting discovery initially to such defens-es’’ and ‘‘certifying orders denying [the]defense[ ] where the law is unsettled but,after refinement on appeal, might warrantdismissing plaintiffs’ claims.’’ Id.13

When properly conducted, suits againstprivate contractors pose minimal risk thatmilitary personnel will be improperly haledinto court or their depositions taken, be-cause ‘‘[w]here discovery would hamperthe military’s mission, district courts canand 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 andsubstantive rules, such as Rule 45 of theFederal Rules of Civil Procedure and thestate secrets doctrine, also adequatelysafeguard military interests. See id. at 29n. 18 (Garland, J., dissenting). According-ly, we decline to recognize denials of Salehpreemption as a new class of collateralorder.14 Insofar as it would be founded on

12. It is of no moment that the plaintiffs havealleged a conspiracy among the contractors,their employees, and certain military person-nel. The conspiracy allegation does nottransform this civil action into a challenge tothe government’s policy or interests, or intoan attempt to hold its contractors liable foracting in accord with governmental decisions.Just as in Saleh, where some of the plaintiffsalleged a similar conspiracy, ‘‘there is no alle-gation, and no evidence, that’’ the ‘‘low-levelsoldiers’’ alleged to be acting in conspiracywith contractor personnel ‘‘had any control,de jure or de facto, over the’’ contractor per-sonnel. 580 F.3d at 20 (Garland, J., dissent-ing). As such, these proceedings—like Sa-leh—constitute direct challenges only to ‘‘theunlawful and unauthorized actions of privatecontractors,’’ id., based on the pleadings andrecord to date.

13. The government’s amicus submission

agrees, observing that concerns over postpon-

ing 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 inter-

locutory appellate review, including certifica-

tion under 28 U.S.C. § 1292(b).’’ Br. for the

United States as Amicus Curiae at 4.

14. And, indeed, it remains to be seen whether

we will adopt the substantive concept of ‘‘bat-

tlefield preemption’’ espoused by the Salehmajority. For the purposes of our decision

today, however, we assume but do not decide

that such a defense may be available to the

appellants.


the false premise that immediate appealsare necessary in preemption cases to pro-tect the government’s legitimate militaryinterests, such recognition would reflect animpermissibly indulgent view of appellatejurisdiction.

C.

[5] Before jurisdiction can be invokedunder the collateral order doctrine, a dis-trict court must issue a ‘‘fully consummat-ed decision’’ that constitutes ‘‘a complete,formal, and TTT final’’ resolution of theissue. Abney v. United States, 431 U.S.651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651(1977). In other words, the court’s rulingmust be ‘‘the final word on the subjectaddressed.’’ Digital Equip., 511 U.S. at867, 114 S.Ct. 1992. If a ruling lacksfinality, the threshold requirement for col-lateral order review—that the question indispute be definitively resolved—is like-wise left wanting. See Will v. Hallock, 546U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d836 (2006) (confining review of non-finalorders to disputed questions conclusivelydetermined, which raise important non-merits issues that are effectively unreview-able if not immediately appealed).

[6] A question in dispute cannot besaid to have been conclusively resolved if adistrict court ‘‘ma[kes] clear that its deci-sion [is] a tentative one, TTT and that itmight well change its mind’’ after furtherproceedings. Jamison v. Wiley, 14 F.3d222, 230 (4th Cir.1994). Disputed ques-tions that arise with respect to claims ofimmunity are not the exception to thatironclad rule. Fundamentally, a court isentitled to have before it a proper record,sufficiently developed through discoveryproceedings, to accurately assess any

claim, including one of immunity. Andeven a party whose assertion of immunityultimately proves worthy must submit tothe burdens of litigation until a court be-comes sufficiently informed to rule.

[7] Manifestly, with respect to theappellants’ attempts to invoke Mangoldimmunity in their respective actions, suf-ficient information was lacking. The Ma-ryland and Virginia district courts eachperceived that the validity of such invo-cations depended in significant part onwhether the contractor involved was act-ing within the scope of its agreementwith the United States. One could hard-ly begin to answer that question withoutresort to any and all contracts betweenthe appellants and the government perti-nent to the claims, defenses, and relatedmatters below. See, e.g., Al–Quraishi v.Nakhla, 728 F.Supp.2d 702, 741 n. 11(D.Md.2010) (reasoning that contractcould show, for example, that ‘‘ ‘federalwartime policy-making’ was not behindDefendants’ alleged actions,’’ in whichcase plaintiffs’ ‘‘state law claims [would]not intrude upon the preempted field’’).While other evidence and testimony couldalso be relevant to ascertain the appel-lants’ business relationship with the gov-ernment in general, and the parties’agreed duties and responsibilities in Iraqand at Abu Ghraib in particular, theanalysis must necessarily begin with thewritten contract or contracts. Cf. Harrisv. Kellogg Brown & Root Servs., Inc.,618 F.3d 398, 402 (3d Cir.2010) (rejectingappellate jurisdiction for failure of Will’s‘‘conclusively determined’’ requirement,where only limited discovery had beenconducted on combatant activities andpolitical question defenses).15

15. As 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, consid-

eration of [their] course of dealing with the


In dissent, Judge Niemeyer contendsthat Behrens v. Pelletier, 516 U.S. 299, 116S.Ct. 834, 133 L.Ed.2d 773 (1996), andAshcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.1937, 173 L.Ed.2d 868 (2009), each a quali-fied immunity proceeding, provide for col-lateral order jurisdiction of the districtcourts’ orders denying Mangold immunity,as illustrated by other of our qualifiedimmunity cases. See post at 254, 255 (cit-ing McVey v. Stacy, 157 F.3d 271 (4thCir.1998); Jenkins v. Medford, 119 F.3d1156 (4th Cir.1997) (en banc); Winfield v.Bass, 106 F.3d 525 (4th Cir.1997) (enbanc)). According to Judge Niemeyer,Behrens and Iqbal counsel that Rule 12denials of immunity invariably constitutefinal decisions appealable under § 1291,and those authorities ‘‘clearly establishthat these appeals fit comfortably with theCohen collateral order doctrine.’’ Post at249.

It is more accurate to say that ordersdenying dismissal motions, insofar as thosemotions are based on immunities that arenot absolute but conditioned on context,such as qualified immunity in a § 1983action or the derivative immunities at issuehere, are, in accordance with Behrens andIqbal, sometimes immediately appealable.Winfield makes the point:

[W]e possess no jurisdiction over a claimthat a plaintiff has not presented enoughevidence to prove that the plaintiff’s ver-sion of the events actually occurred, butwe have jurisdiction over a claim thatthere was no violation of clearly estab-lished law accepting the facts as thedistrict court viewed them.

106 F.3d at 530. More generally, wewould have jurisdiction over an appeal likethe ones attempted here ‘‘if it challenge[d]

the materiality of factual issues.’’ Bazanex rel. Bazan v. Hidalgo Cnty., 246 F.3d481, 490 (5th Cir.2001). By contrast, welack jurisdiction if such an appeal ‘‘chal-lenges the district court’s genuineness rul-ing—that genuine issues exist concerningmaterial facts.’’ Id. Of course, ‘‘[w]e al-ways have jurisdiction to determine wheth-er the facts relevant to our jurisdictionexist.’’ Wireko v. Reno, 211 F.3d 833, 835(4th Cir.2000) (citation omitted).

In Iqbal, the Supreme Court framed thegenuineness-materiality distinction as onebetween ‘‘fact-based’’ or ‘‘abstract’’ issuesof law, with only the latter supplying aproper foundation for immediate appeal.556 U.S. at 674, 129 S.Ct. 1937 (quotingJohnson v. Jones, 515 U.S. 304, 317, 115S.Ct. 2151, 132 L.Ed.2d 238 (1995)). TheIqbal Court concluded that whether a par-ticular constitutional right was clearly es-tablished for qualified immunity purposespresents an abstract issue of law that per-mits an appeal at the dismissal stage. Seeid. at 674–75, 129 S.Ct. 1937. Here, as inIqbal, there is no ‘‘vast pretrial record’’ toencumber our decisionmaking, id. at 674,129 S.Ct. 1937, but the issues before us aremore factually entrenched and far lessamenable to meaningful analysis by resortmerely to the plaintiffs’ pleadings. Thus,unlike Iqbal, these appeals encompass fact-based issues of law, with the need foradditional development of the record beingamong those ‘‘matters more within a dis-trict court’s ken.’’ Id.

Hence, insofar as an interlocutory ap-peal of a denial of immunity requires reso-lution of a purely legal question (such aswhether an alleged constitutional violationwas of clearly established law), or an os-tensibly fact-bound issue that may be re-

government may reveal whether deviationsfrom the contract occurred and, if so, wheth-er they were tolerated or ratified.’’ Al Shi-mari v. CACI Premier Tech., Inc., 657

F.Supp.2d 700, 717 (E.D.Va.2009). Ofcourse, the district court can receive this evi-dence under seal, or otherwise, if the circum-stances so warrant.


solved as a matter of law (such as whetherfacts that are undisputed or viewed in aparticular light are material to the immu-nity calculus), we may consider and ruleupon it. See Behrens, 516 U.S. at 313, 116S.Ct. 834 (deeming appellate jurisdiction tohave been properly asserted over denial ofsummary judgment in § 1983 action whereadverse ruling was premised on defen-dant’s alleged conduct having violatedclearly established law); McVey, 157 F.3dat 276 (approving jurisdiction over similarlegal issue at dismissal stage, where appealdid not ‘‘raise factual questions concerningthe defendants’ involvement, which wouldnot be appealable’’).16

Behrens, then, confers jurisdiction ofthese appeals only if the record at thedismissal stage can be construed to pres-ent a pure issue of law. We might discernsuch an issue if we were of the opinion, asthe dissenters evidently are, that personssimilarly situated to the appellants are in-evitably and invariably immune from suitpremised on any and all conduct occurring

(1) when they are in a war zone, by virtueof (2) a contract with the government.But not even Saleh, which receives a ring-ing endorsement in both dissents, wentthat far.

The court in Saleh adopted the followingrule: ‘‘During wartime, where a privateservice contractor is integrated into com-batant activities over which the militaryretains command authority, a tort claimarising out of the contractor’s engagementin such activities shall be preempted.’’ 580F.3d at 9. The D.C. Circuit thereforeconditions preemption on the presence of acertain level of public/private integration,the conduct of activities that may be classi-fied as combat, and the military’s retainedprerogative concerning the decisionmakingprocess. Though the Saleh court had theluxury of a complete record developedthrough discovery to assist it in ponderingthose issues, there has been no discoveryin the cases at bar, and the pleadingsprovide nothing approaching definitive an-swers.17

16. See also Jenkins, 119 F.3d at 1159–60(noting existence of appellate jurisdictionover denial of qualified immunity on motionto dismiss, based in part on defendant’s as-sertion that alleged violation did not impli-cate clearly established constitutional right);Winfield, 106 F.3d at 530 (recognizing juris-diction over appeal of denial of qualified im-munity insofar as district court ruled on sum-mary judgment that asserted legal right wasclearly established).

17. Judge Wilkinson, on behalf of our dissent-ing friends, assumes as fact that the contrac-tors were ‘‘integrated into wartime combatantactivities under control of the U.S. military,’’post at 226, notwithstanding that there is norecord evidence to support that assumption,or even what ‘‘integration’’ means in the con-text of war. Judge Wilkinson appears toequate integration with the plaintiffs’ asser-tion of a conspiracy. See post at 227 (citingconspiracy allegations of Amended Complaintin Al Shimari in support of notion ‘‘that thecontractors here were acting in collaborationwith U.S. military personnel’’); see also supra

note 12. But there is simply no reason tobelieve that the integration of separate entitiesinto a more or less unified whole is necessari-ly the legal equivalent of a collaboration orconspiracy between those entities.

It is also far from clear that, with respect tothe torture and abuses alleged by the plain-tiffs, the appellants were ‘‘acting under U.S.military authority,’’ post at 230, as presumedby Judge Wilkinson. If one felt constrainedto form a conclusion on the authorizationquestion based on the available record, thenone would be better served to reference thepertinent allegations of the plaintiffs that, forexample, ‘‘CACI knew that the United Statesgovernment has denounced the use of tortureand other cruel, inhuman, or degrading treat-ment,’’ Al Shimari Amended Complaint at¶ 95; ‘‘L–3 permitted [its] translators to ig-nore—repeatedly—the military’s instructionsto abide by the Geneva Conventions,’’ Al–Quraishi Second Amended Complaint at¶ 430; and ‘‘L–3 affirmatively hid the miscon-duct of its employees from the United Statesmilitary,’’ id. at ¶ 433.


Indeed, the questions that will requireproper answers in order to gauge the ap-pellants’ entitlement to immunity have yetto be fully ascertained. In Mangold v.Analytic Services, Inc., supra note 3, therelevant issues on appeal from summaryjudgment included whether governmentpersonnel were conducting an ‘‘official in-vestigation,’’ and whether the contractors’statements giving rise to potential liabilitywere responsive to the investigators’ quer-ies, as opposed to being extraneous there-to. See Mangold v. Analytic Services,Inc., 77 F.3d at 1449–50. Subsequently, inButters v. Vance International, Inc., su-pra note 3, also a summary judgment ap-peal, we were constrained to decide wheth-er withholding a job promotion from theplaintiff was a ‘‘commercial activity,’’ andwhether that employment decision wasmade by the defendant or the foreign gov-ernment with which it had contracted. SeeButters v. Vance International, Inc., 225F.3d at 465–67. As with Mangold andButters, this case too requires careful anal-ysis of intrinsically fact-bound issues,which may resemble any or all of the Salehconsiderations, and will almost certainlyentail an exploration of the appellants’duties under their contracts with the gov-ernment and whether they exceeded thelegitimate scope thereof.

The appellants are requesting immunityin a context that has been heretofore unex-plored. These are not disputes in whichfacts that might be material to the ulti-mate issue have been conclusively identi-fied. Moreover, those facts that may havebeen tentatively designated as outcome-determinative are yet subject to genuinedispute, that is, a reasonable fact-findercould conclude in favor of either the plain-tiffs or the defendants. See Metric/Kvaer-ner Fayetteville v. Fed. Ins. Co., 403 F.3d188, 197 (4th Cir.2005). Because thecourts’ immunity rulings below turn ongenuineness, we lack jurisdiction to consid-er them on an interlocutory appeal. SeeWinfield, 106 F.3d at 530; Bazan, 246F.3d at 490.18

Thus, although Mangold immunity con-fers upon those within its aegis the rightnot to stand trial, the appellants have yetto establish their entitlement to it. SeeMartin, 618 F.3d at 483 (concluding thatclaims of immunity must be ‘‘substantial,’’and not ‘‘merely colorable’’). Becausethese appeals were taken before the dis-trict courts could reasonably render a deci-sion on the applicability of Mangold and,perhaps, Butters, there is no collateral or-der fulfilling the Will requirements forappealability pursuant to Cohen, andtherefore no jurisdiction in this Court toreview any related aspect of the proceed-ings below.19

18. The Supreme Court’s recent decision inFilarsky v. Delia, ––– U.S. ––––, 132 S.Ct.1657, 182 L.Ed.2d 662 (2012), is not at all tothe contrary. The issue in Filarsky, an appealby a private lawyer from the denial of quali-fied immunity in a § 1983 case, was ‘‘whetheran individual hired by the government to doits work is prohibited from seeking such im-munity.’’ Id. at 1660. The Supreme Courtconcluded in the negative, and, consistenttherewith, we have not curtailed the opportu-nity of the appellants herein to seek immunityfrom the plaintiffs’ claims; such immunitymay yet be had. It is also worth noting thatthe appeal in Filarsky was taken only after thedistrict court had ruled on summary judg-

ment, see id. at 1660–61, ascertaining that theissues in controversy were strictly legal, i.e.,whether qualified immunity could be extend-ed to private parties, and whether the allegedconstitutional violation was one of clearly es-tablished law.

19. The same lack of jurisdiction obtains withrespect to L–3’s attempted appeal of the Ma-ryland district court’s denial of its motion todismiss the ATS claims, insofar as that appealis grounded in any of the derivative immuni-ties we have discussed. See supra note 2(observing winnowing of L–3’s ATS argu-ments from those presented to the districtcourt). Similar unsettled questions pertain-


D.

There being no independent basis forappellate jurisdiction premised on the law-of-war defense, Saleh preemption, or Man-gold immunity, we are without pendentjurisdiction to further consider the appel-lants’ contentions that the plaintiffs’ claimspresent nonjusticiable political questions.Our rejection of each of the three prof-fered bases also precludes the exercise ofjurisdiction regardless of whether the ap-pellants’ political question defense is inex-tricably intertwined with any of them, orwhether those bases are similarly interde-pendent with one another.

IV.

Pursuant to the foregoing, these consoli-dated appeals must be dismissed.

APPEALS DISMISSED

DUNCAN, Circuit Judge, concurring:

I respect the majority’s well-reasonedopinion in this case and therefore fullyconcur in its conclusion that we lack juris-diction to hear this appeal. I write sepa-rately only to express my hope that thedistrict courts in these consolidated ap-peals will give due consideration to theappellant’s immunity and preemption ar-guments—especially in light of the Su-preme Court’s recent opinion in Filarskyv. Delia, ––– U.S. ––––, 132 S.Ct. 1657, 182

L.Ed.2d 662 (2012), as discussed in JudgeNiemeyer’s dissent—which are far fromlacking in force.

Judge Agee has authorized me to indi-cate 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 theprudence of the majority’s restraint, whichpromotes both ‘‘efficient judicial adminis-tration’’ and ‘‘the prerogatives of districtcourt judges, who play a special role inmanaging ongoing litigation.’’ MohawkIndus., Inc. v. Carpenter, ––– U.S. ––––,130 S.Ct. 599, 605, 175 L.Ed.2d 458 (2009).

With respect to the latter consideration,I feel compelled to reiterate the majority’sholding that our limited appellate roleleaves us without jurisdiction at this stageof the litigation to consider the underlyingmerits of these appeals. Likewise, as not-ed in the majority opinion, ‘‘facts thatmight be material to the ultimate issuehave [not yet] been conclusively identified’’in these cases, which are on appeal frommotions to dismiss. Ante at 223.

Accordingly, today’s opinion offers noguidance to the district court on the under-lying merits of these matters. To do oth-erwise would, in my opinion, potentiallyusurp the role of the district court or riskoverstepping our own. See United States

ing to potentially relevant considerations suchas agency, the scope of L–3’s duties under thecontracts, and the degree of integration maybear on whether the asserted immunities areproperly ‘‘derived’’ to defeat the plaintiffs’claims. Further, we agree with the courtbelow that although the Maryland plaintiffshave sued under the ATS, that litigation strat-egy should not be construed as a judicialadmission that the actions of L–3 were thoseof the United States, thereby crystallizing ac-cess to a sovereign immunity defense andproviding, through the denial of such immu-nity, an independent basis for appellate juris-

diction. See Al–Quraishi v. Nakhla, 728F.Supp.2d 702, 751–53 (D.Md.2010). Ourconclusion in that regard is buttressed bySosa v. Alvarez–Machain, 542 U.S. 692, 732 &n. 20, 124 S.Ct. 2739, 159 L.Ed.2d 718(2004), in which the Supreme Court carefullyleft open the question of whether ATS liabilitymay be imposed on private actors. Obvious-ly, if the plaintiffs’ ATS claims may be main-tained against L–3 as a private actor but notas an agent of the government acting withinthe scope of its agency, L–3’s status is onemore issue that may be appropriate for thedistrict court to resolve following discovery.


v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct.547, 5 L.Ed.2d 476 (1961) (‘‘Such [advisory]opinions, such advance expressions of legaljudgment upon issues which remain unfo-cused because they are not pressed beforethe Court with that clear concreteness pro-vided when a question emerges preciselyframed and necessary for decision from aclash of adversary argument exploring ev-ery aspect of a multifaceted situation em-bracing conflicting and demanding inter-ests, we have consistently refused togive.’’). Further, to the extent that mycolleagues, in separate opinions, offer theirviews on the underlying merits of thesecases, those opinions, ‘‘by their nature[,]express views that are not the law.’’ Ararv. Ashcroft, 585 F.3d 559, 581 n. 14 (2dCir.2009) (en banc).

WILKINSON, Circuit Judge,dissenting:

The majority in this case tries to presentits view as some sort of innocuous jurisdic-tional disposition. But the jurisdictionalruling is wrong, and the decision is any-thing but innocuous. It inflicts significantdamage on the separation of powers, allow-ing civil tort suits to invade theatres ofarmed conflict heretofore the province ofthose branches of government constitution-ally charged with safeguarding the nation’smost vital interests.

I fully join Judge Niemeyer’s fine dis-sent. My good colleague has ably ad-dressed many of the failings of today’sdecision, and I see no need to repeat thosepoints here. I write separately only be-cause the difficulties with these actions areso legion that no single dissent could hopeto cover them all.

The majority and I disagree on much,but there is no disagreement about theAbu Ghraib photographs that have appar-ently inspired this litigation. See ante at209. Americans of good will were sick-

ened by those photographs and the de-praved conduct that would be reprehensi-ble whenever, wherever, and againstwhomever it was applied. But acknowl-edging that fact answers only the questionof whether this is a hard case. It does notanswer the question whether it is bad lawwhose lasting consequences and abidingdamage will long outlive the distressingphotographs that have prompted the suitsherein.

The actions here are styled as tradition-al ones and wrapped in the venerableclothing of the common law. Even oncommon law terms, however, they are de-monstrably incorrect, and the impactwhich tort doctrine will have on militaryoperations and international relations mag-nifies the difficulties immeasurably. Idare say none of us have seen any litiga-tion quite like this and we default if weaccept uncritically or entertain indefinitelythis novel a violation of the most basic andcustomary precepts of both common andconstitutional law.

Sadly, the majority’s opinion does pre-cisely this. After reading its decision, onecould be forgiven for thinking that theissue before us is a simple jurisdictionalquestion arising out of ordinary tort suits.But these are not routine appeals that canbe quickly dismissed through some roteapplication of the collateral order doctrine.This case instead requires us to decidewhether the contractors who assist ourmilitary on the battlefield will be held ac-countable through tort or contract, andthat seemingly sleepy question of commonlaw remedies goes to the heart of ourconstitutional separation of powers. Tortsuits place the oversight of military opera-tions in an unelected judiciary, contractlaw in a politically accountable executive.And in the absence of some contrary ex-pression on the part of the Article I legis-lative branch, the basic principles of Arti-


cle II require that contractual, not tort,remedies apply.

The majority emphatically decides thisweighty question by pretending not to de-cide, as its dismissal of these appeals givesindividual district courts the green light tosubject military operations to the mostserious drawbacks of tort litigation. Butarrogating power to the Third Branch in acontest over military authority is thewrong call under our Constitution, andthere is no garb for this decision so benignas to obscure the import of what the ma-jority has done.

We tread this territory at our peril.This decision is contrary to decades ofSupreme Court admonitions warning fed-eral courts off interference with interna-tional relations. Of course military con-tractors should be held accountable, and itis important that a framework be set inplace to accomplish this task. But insteadof establishing that framework, the majori-ty succumbs to mere drift and in so doingplaces courts in the most damaging andleast defensible legal landscape possible.None of us have any idea where exactly allthis is headed or whether the damage in-flicted on military operations will be onlymarginal or truly severe. At a minimum,however, today’s decision breaches a linethat was respected by our predecessors oncourts high and low. I would not crossthis boundary even if the collateral orderdoctrine could cloak my steps. With allrespect for my fine colleagues, I wouldremand these actions to the district courtwith direction that they be dismissed.

Part I of my dissenting opinion discuss-es the utter unsuitability of tort actionssuch as these in the context of an interna-tional theatre of war. Part II addresseswhy contract law is compatible with theseparation of powers and the responsibili-ties allocated the executive branch underArticle II of our Constitution. Part III

explains why the majority’s application ofthe collateral order doctrine goes beyondbeing incorrect to inflicting damage onAmerican interests overseas.

I.

Tort regimes involve well-known trade-offs. They may promote the public inter-est by compensating innocent victims, de-terring wrongful conduct, and encouragingsafety and accountability. However, tortlaw may also lead to excessive risk-averse-ness on the part of potential defendants.And caution that may be well-advised in acivilian context may not translate neatly toa military setting, where the calculus isdifferent, and stakes run high. Risks con-sidered unacceptable in civilian life aresometimes necessary on a battlefield. Inorder to secure high-value intelligence ormaintain security, the military and itsagents must often act quickly and on thebasis of imperfect knowledge. Requiringconsideration of the costs and conse-quences of protracted tort litigation intro-duces a wholly novel element into militarydecisionmaking, one that has never beforein our country’s history been deployed sopervasively in a theatre of armed combat.

The majority acquiesces in judicial con-trol over these sensitive military judg-ments. It opens the door for the plaintiffsto conduct broad discovery based on boil-erplate complaints alleging a laundry listof state law claims, including ‘‘assault andbattery,’’ ‘‘sexual assault and battery,’’ ‘‘in-tentional infliction of emotional distress,’’and ‘‘negligent hiring and supervision.’’By allowing such claims to go forwardagainst contractors integrated into war-time combatant activities under control ofthe U.S. military, the majority raises thor-ny questions of whose law should apply,compromises the military’s ability to utilizecontractors in the future, and nudges for-eign policy and war powers away from the


political branches of the federal govern-ment and into the hands of federal courts.Simply put, these state tort claims have nopassport that allows their travel in foreignbattlefields, and we have no authority toissue one.

The complaint makes clear, and the con-tractors do not dispute, that the contrac-tors here were acting in collaboration withU.S. military personnel. See, e.g., Al Shi-mari Amended Complaint ¶¶ 1, 70, 71, 118,124, 135. The majority nonetheless drawsthe odd distinction that contractors andthe military may be in a ‘‘conspiracy’’ with-out somehow being ‘‘integrated.’’ See anteat 222 n. 17. In addition to the foremen-tioned paragraphs, the complaint in factprovides ample allegations of integration.For example, the Al–Quraishi plaintiffsclaim that ‘‘L–3 employed all the civiliantranslators used by the military in Iraq,’’Al–Quraishi Amended Complaint ¶ 78, andthat ‘‘Defendants’ acts took place during aperiod of armed conflict, in connection withhostilities’’ in which the U.S. military wasengaged, id. ¶ 280. Indeed, they allegeintegration so complete that civilian inter-rogators were giving orders to militarypersonnel. Id. ¶ 221. For its contraryview, the majority departs from the well-established rule that we take the asser-tions of the complaint on a motion to dis-miss as true. While the whole gravamenof the complaint is military-contractor co-operation and collaboration, the majoritywould have us believe they were more akinto strangers in the night.

The majority also suggests that the con-tractors may have departed from militaryinstructions. See ante at 222 n. 17. If thecontractors did depart from the military’sinstructions, that would allow the govern-ment to pursue a breach of contract claim.

See infra Part II. Ironically, the com-plaint itself speaks specifically in terms ofa failure to ‘‘abide[ ] by the contractterms,’’ Al–Quraishi Amended Complaint¶ 247, even though the plaintiffs were in nosense a party to the same. But anybreach of contract does not begin to confera cause of action in tort on the part ofdetainees in a theatre of armed conflict.There is no indication that Congress orany other law-making authority, federal orstate, wanted foreign nationals in deten-tion to litigate in tort the relationship be-tween military contractors and the U.S.military when the government itself as aparty to the contract has posited no needto do so.

A.

From this point, the problems with thislitigation only multiply. First, due largelyto their inventive nature, these suits pres-ent the difficult question of whose lawshould govern them. The majority clearsthe way for one federal court, sitting inMaryland, to apply Iraqi tort law to thealleged conduct—in an Iraqi war zone—ofa Virginia-headquartered contractor inte-grated into wartime combatant activities ofthe U.S. military, and for another federalcourt, sitting in Virginia, to apply Virginiatort law to a similarly situated contractorfor alleged conduct also occurring in anIraqi war zone. This is, to put it mildly,no way to run a railroad.

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 ofPlaintiffs’ state law claims.’’ Id. at 763.*

* The Al–Quraishi district court also declined todismiss plaintiffs’ Alien Tort Statute claimsbecause, in its judgment, ‘‘Plaintiffs’ claims

constitute recognized violations of the law ofnations, appropriately assertable against De-fendants.’’ 728 F.Supp.2d at 715. Such


This conclusion is highly troublesome.Most fundamentally, the application of Ira-qi law against agents of the U.S. militaryconstitutes a complete surrender of sover-eignty. The majority allows Iraqi citizenswho were imprisoned in an active theatreof war to bring tort suits against the occu-pying authority based on Iraqi causes ofaction. Such suits are not only novel, tosay the least, but also in conflict withSupreme Court precedent. See, e.g., Dowv. Johnson, 100 U.S. 158, 165, 170, 25L.Ed. 632 (1879) (explaining that occupy-ing forces are not subject to the laws ofthe occupied territory); Coleman v. Ten-nessee, 97 U.S. 509, 515, 517, 24 L.Ed. 1118(1878) (same).

The majority does not point to a singlecase in which foreign citizens were allowedto sue the occupying authority in its owncourts under foreign causes of action.Likewise, it offers no support for its asser-tion that Dow and Coleman do not applyto military contractors, citing only Ford v.Surget, 97 U.S. 594, 24 L.Ed. 1018 (1878),a case implying that law-of-war immunityis not limited to uniformed soldiers. SeeFord, 97 U.S. at 606–08 (holding a civilianimmune from civil suit for burning cottonin support of the Confederate military).

Moreover, the majority is simply wrongin suggesting that the Dow and ColemanCourts were concerned only with protect-ing the occupying authority from foreigntribunals, in contrast to foreign laws. See,e.g., Dow, 100 U.S. at 165 (‘‘When, there-fore, our armies marched into TTT the ene-my’s country, their officers and soldierswere not subject to its laws, nor amenable

to its tribunals for their acts. They weresubject only to their own government, andonly by its laws, administered by its au-thority, could they be called to account.’’(emphases added)); id. at 170 (‘‘The ques-tion here is, What is the law which governsan army invading an enemy’s country? Itis not the civil law of the invaded coun-tryTTTT’’ (emphasis added)); Coleman, 97U.S. at 515 (‘‘Officers and soldiers of thearmies of the Union were not subject dur-ing the war to the laws of the enemy, oramenable to his tribunals for offences com-mitted by them. They were answerableonly to their own government, and only byits laws, as enforced by its armies, couldthey be punished.’’ (emphases added)); id.at 517 (Following military occupation, ‘‘themunicipal laws of [the occupied territory]TTT remain in full force so far as theinhabitants of the country are con-cernedTTTT This doctrine does not affect,in any respect, the exclusive character ofthe jurisdiction of the military tribunalsover the officers and soldiers of the armyof the United States TTT; for, as alreadysaid, they were not subject to the laws noramenable to the tribunals of the hostilecountry.’’ (emphases added)).

The application of Iraqi tort law to U.S.military contractors creates practical prob-lems as well. American courts are ill-suited to decide unsettled questions of Ira-qi law. The district court in Al–Quraishi,for instance, considered ‘‘Whether Aidingand Abetting and Conspiracy are Recog-nized Torts Under Iraqi Law and WhetherIraqi Law Allows Punitive Damages.’’ 728F.Supp.2d at 764. The defendants argued

claims could be precluded by Kiobel v. RoyalDutch Petroleum Co. (No. 10–1491), in whichthe Supreme Court is expected to decidewhether ‘‘the Alien Tort Statute TTT provide[s]subject matter jurisdiction over claims againstcorporations,’’ Kiobel v. Royal Dutch Petro-leum Co., 621 F.3d 111, 149 (2d Cir.2010),cert. granted, ––– U.S. ––––, 132 S.Ct. 472, 181

L.Ed.2d 292 (2011) (Mem), and ‘‘[w]hetherand under what circumstances the Alien TortStatute TTT allows courts to recognize a causeof action for violations of the law of nationsoccurring within the territory of a sovereignother than the United States,’’ ––– U.S. –––,132 S.Ct. 1738, 182 L.Ed.2d 270 (2012)(Mem).


that aiding and abetting and conspiracyare not cognizable causes of action underIraqi tort law, and that punitive damagesare not allowed as a remedy. Id. Theplaintiffs disagreed, and the parties ‘‘sub-mitted affidavits from Iraqi law experts insupport of their respective positions.’’ Id.Not surprisingly, considering the difficultyof ascertaining foreign law, the districtcourt decided to ‘‘defer decision with re-spect to the content of Iraqi law.’’ Id.

Given that the district court had troubledeciding such rudimentary questions aswhether aiding and abetting and conspira-cy are even causes of action under Iraqilaw, and whether Iraqi law allows punitivedamages, how can we expect the court todecide the far more challenging issues nec-essary to a full-scale trial? For instance,how will it decipher the standard of carefor each cause of action, and determinewhether there was a breach? It can relyon expert testimony, of course, but Iraqilaw experts appear to disagree as towhether these causes of action are evencognizable. See id. Accordingly, the ma-jority allows a federal court to go forwardwith litigation in which Iraqi citizens sue aU.S. contractor working hand-in-hand withthe U.S. military in a war zone under Iraqicauses of action that may not even exist.

Under the majority’s decision, militarycontractors face the prospect of drawn outlawsuits under the substantive tort law ofevery country in which they operate.Such a regime is unworkable in an erawhere the military has no choice but tocontract with private corporations. In thepresent cases, for example, ‘‘a severeshortage’’ of military intelligence personnel‘‘prompt[ed] the U.S. government to con-tract with private corporations to providecivilian interrogators and interpreters.’’J.A. 408. This use of private contractorswas deemed essential to the achievementof U.S. military objectives. Yet, under the

reasoning of the Al–Quraishi districtcourt, which the majority allows to stand,the contractors should have paused to con-sider their potential liability under thesubstantive tort law of Iraq before agree-ing to supply the military needed person-nel under the government contract.

Of course, corporations generally mustweigh their potential liabilities beforeagreeing to specific projects. The possibil-ity of defending a lawsuit every time aforeign citizen claims a violation of foreigntort law might substantially alter the prof-itability of government contracts. Thus,before agreeing to perform the most criti-cal intelligence functions in support of theU.S. military, contractors would be forcedto investigate and analyze the substantivetort law of every country in which itsemployees might work. This unenviabletask would be even more burdensomewhen the substantive tort law varies fromjurisdiction to jurisdiction within a coun-try, as it does in the United States.

In other words, a court that understand-ably had difficulty deciding such elementa-ry questions as ‘‘Whether Aiding andAbetting and Conspiracy are RecognizedTorts Under Iraqi Law and Whether IraqiLaw Allows Punitive Damages,’’ Al–Qurai-shi, 728 F.Supp.2d at 764, is implying thatcontractors, before playing a critical role inthe U.S. military effort in Iraq, shouldhave analyzed the nuances and permuta-tions of every Iraqi tort law that mightconceivably affect them. By forcing con-tractors to undertake a highly complex anddeeply uncertain legal analysis before aid-ing our military operations, particularlythose executed quickly and in countrieswhose legal systems are unstable and un-familiar, the majority jeopardizes the mili-tary’s ability to employ contractors in thefuture.

Like the courts, military contractorsmust rely on legal experts to analyze for-


eign law. One suspects that most Iraqilegal experts practice law in Iraq, andindeed, the Al–Quraishi plaintiffs relied onthe declaration of an Iraqi attorney em-ployed at an Iraqi law firm. Should thedefendants have sought counsel from theseIraqi attorneys before helping the U.S.military with detention and interrogationfunctions? Should other contractors, be-fore agreeing to aid in the U.S. militaryinvasion of Iraq, have reached out to Iraqilawyers for advice on the legal ramifica-tions of such an attack under Iraqi tortlaw? Until now, these questions seemedfar-fetched, but they are newly valid con-siderations under a regime that subjectslawsuit-averse American corporations tothe substantive tort law of Iraq. My pointis not at all to disrespect Iraqi law orlawyers, but to query the feasibility ofextensive and uncertain legal inquiries intoany foreign law on the eve or in the execu-tion of military operations.

2.

Unlike the district court in Al–Quraishiv. Nakhla, 728 F.Supp.2d 702 (D.Md.2010), the district court in Al Shimari v.CACI Premier Technology, Inc., 657F.Supp.2d 700 (E.D.Va.2009) deferred anyruling on the choice of law issues. See id.at 725 n. 7. As Judge King noted in hisdissent from the now-vacated panel opin-ion, the Al Shimari plaintiffs argue thatCACI is ‘‘liable to them under Virginialaw for the torts of assault and battery,sexual assault, intentional and negligentinfliction of emotional distress, and negli-gent hiring and supervision.’’ Al Shimariv. CACI Int’l, Inc., 658 F.3d 413, 427 (4thCir.2011) (King, J., dissenting) (emphasisadded). The plaintiffs, after all, arepressing Virginia causes of action, andthus if the suit is allowed to go forward,the question of whether Virginia tort lawapplies extraterritorially must be seriouslyasked. The answer to this question is

clear: the application of Virginia tort lawto overseas battlefield conduct by contrac-tors acting under U.S. military authorityis as problematic as the application of Ira-qi law.

First, there is no indication whatsoeverthat the Commonwealth of Virginia hasany interest in having its tort law appliedabroad in these types of cases. Absent acontrary legislative intent, we assume thatlegislatures do not want their tort law toapply extraterritorially. For instance, inEEOC v. Arabian American Oil Co. (‘‘Ar-amco’’), 499 U.S. 244, 111 S.Ct. 1227, 113L.Ed.2d 274 (1991), the Supreme Courtheld that Title VII of the Civil Rights Actof 1964 does not apply extraterritorially toregulate the employment practices of U.S.employers who employ U.S. citizensabroad. Id. at 246–47, 111 S.Ct. 1227. Inreaching this conclusion, the Court reliedon the ‘‘longstanding principle’’ that ‘‘ ‘leg-islation of Congress, unless a contrary in-tent appears, is meant to apply only withinthe territorial jurisdiction of the UnitedStates.’ ’’ Id. at 248, 111 S.Ct. 1227 (cita-tion omitted). Given that ‘‘Congress legis-lates against the backdrop of the presump-tion against extraterritoriality,’’ the Courtstated, ‘‘unless there is ‘the affirmativeintention of the Congress clearly ex-pressed,’ we must presume it ‘is primarilyconcerned with domestic conditions.’ ’’ Id.(citations omitted). Ultimately, the Courtconcluded that the petitioners had failed toprovide sufficient evidence that Congressintended Title VII to apply abroad. Id. at259, 111 S.Ct. 1227.

Citing Aramco, the Supreme Court re-cently reiterated these principles in Morri-son v. National Australia Bank Ltd., –––U.S. ––––, 130 S.Ct. 2869, 177 L.Ed.2d 535(2010), where it held that § 10(b) of theSecurities Exchange Act of 1934 does notapply extraterritorially. Id. at 2877–78,2883. The Court reasoned that ‘‘[t]he re-


sults of judicial-speculation-made-law—di-vining what Congress would have wantedif it had thought of the situation before thecourt—demonstrate the wisdom of the pre-sumption against extraterritoriality.’’ Id.at 2881. ‘‘Rather than guess anew in eachcase,’’ the Court continued, ‘‘we apply thepresumption in all cases, preserving a sta-ble background against which Congresscan legislate with predictable effects.’’ Id.

Similarly, in Gregory v. Ashcroft, 501U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410(1991), the Court concluded that judgesmust apply a ‘‘plain statement rule’’ beforeupsetting the standard constitutional bal-ance of federal and state powers. Id. at460–61, 111 S.Ct. 2395. ‘‘[I]f Congressintends to alter the usual constitutionalbalance,’’ the Court explained, ‘‘it mustmake its intention to do so unmistakablyclear in the language of the statute.’’ Id.at 460, 111 S.Ct. 2395 (internal quotationmarks omitted). ‘‘In traditionally sensitiveareas,’’ the Court continued, ‘‘the require-ment of clear statement assures that thelegislature has in fact faced, and intendedto bring into issue, the critical mattersinvolved in the judicial decision.’’ Id. at461, 111 S.Ct. 2395 (internal quotationmarks omitted).

Aramco, Morrison, and Gregory all in-volved the ‘‘longstanding principle’’ that‘‘ ‘legislation of Congress, unless a contraryintent appears, is meant to apply onlywithin the territorial jurisdiction of theUnited States.’ ’’ Aramco, 499 U.S. at 248,111 S.Ct. 1227 (emphasis added) (citationomitted). However, given that the Consti-tution entrusts foreign affairs to the feder-al 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, seeid. art. I, § 10, and establishes the su-premacy of federal enactments over statelaw, see id. art. VI, cl. 2, the presumption

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

It defies belief that, notwithstandingthe constitutional entrustment of foreignaffairs to the national government, Virgi-nia silently and impliedly wished to ex-tend the application of its tort law toevents overseas. Or further, that itwould do so in active disregard of Su-preme Court pronouncements. For theCourt has repeatedly stated that the fed-eral government has exclusive power overforeign affairs, and that states have verylittle authority in this area. In ChaeChan Ping v. United States, 130 U.S. 581,9 S.Ct. 623, 32 L.Ed. 1068 (1889), for in-stance, the Court noted, ‘‘ ‘[T]he UnitedStates is not only a government, but it isa national government, and the only gov-ernment in this country that has the char-acter of nationality. It is invested withpower over all the foreign relations of thecountry, war, peace and negotiations andintercourse with other nations; all ofwhich are forbidden to the state govern-ments.’ ’’ Id. at 605, 9 S.Ct. 623 (citationomitted). The Court reiterated theseprinciples in United States v. Belmont,301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134(1937), emphasizing that ‘‘[g]overnmentalpower over external affairs is not distrib-uted, but is vested exclusively in the na-tional government.’’ Id. at 330, 57 S.Ct.758. The Belmont Court further notedthat ‘‘complete power over internationalaffairs is in the national government andis not and cannot be subject to any cur-tailment or interference on the part of theseveral states.’’ Id. at 331, 57 S.Ct. 758.Likewise, in Hines v. Davidowitz, 312U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941),the Court stressed that ‘‘[o]ur system ofgovernment is such that TTT the interestof the people of the whole nation, impera-tively requires that federal power in thefield affecting foreign relations be left en-


tirely free from local interference.’’ Id. at63, 61 S.Ct. 399.

Such interference is precisely what weinvite by ascribing to the fifty states theunexpressed wish that their tort law gov-ern the conduct of military operationsabroad. The principle against such inter-ference holds even where the executivebranch insists that the state law does notinterfere with the foreign relations power.For instance, in Zschernig v. Miller, 389U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683(1968), the Supreme Court struck down anOregon probate law as ‘‘an intrusion by theState into the field of foreign affairs whichthe Constitution entrusts to the Presidentand the Congress.’’ Id. at 432, 88 S.Ct.664. Although ‘‘[t]he several States TTT

have traditionally regulated the descentand distribution of estates,’’ the Court con-cluded, ‘‘those regulations must give way ifthey impair the effective exercise of theNation’s foreign policy.’’ Id. at 440, 88S.Ct. 664. In its brief amicus curiae, theDepartment of Justice stated, ‘‘The gov-ernment does not TTT contend that theapplication of the Oregon escheat statutein the circumstances of this case undulyinterferes with the United States’ conductof foreign relations.’’ Id. at 434, 88 S.Ct.664. The Court disregarded this state-ment, reasoning that the state actionmight cause ‘‘disruption or embarrass-ment’’ that the Justice Department failedto appreciate. Id. at 434–35, 441, 88 S.Ct.664. In concurrence, Justice Stewart waseven less deferential toward statementsfrom the executive branch:

We deal here with the basic allocation ofpower between the States and the Na-tion. Resolution of so fundamental aconstitutional issue cannot vary fromday to day with the shifting winds at theState Department. Today, we are told,Oregon’s statute does not conflict withthe national interest. Tomorrow it may.

Id. at 443, 88 S.Ct. 664 (Stewart, J., con-curring).

3.

So too here, we are hardly required todefer to the Justice Department’s state-ments that these cases should go forward.The Department urges us to

hold that state tort law claims againstcontractors are generally preempted ifsimilar claims brought against the Unit-ed States would come within the FTCA’scombatant activities exception and if thealleged actions of the contractor and itspersonnel occurred within the scope oftheir contractual relationship with thegovernment, particularly if the conductoccurred while contractor personnelwere integrated with the military in itscombat-related activities.

Br. of United States at 2–3.

So far, so good. And one would thinkthat this would be the end of it. However,the Department carves out an exceptionwhere ‘‘a contractor has committed tortureas defined in 18 U.S.C. § 2340,’’ the feder-al anti-torture statute. Id. at 3. The gov-ernment then elaborates further on itsproposed exception by implying that state-law tort remedies need not be availablegoing forward ‘‘in light of measures subse-quently instituted by Congress and theExecutive Branch, and other developmentsin the aftermath of Abu Ghraib.’’ Id. at23. Like the Justice Department’s brief inZschernig, this vaguely explained and in-explicably derived exception is not entitledto deference by this court. As the Su-preme Court only recently reiterated,‘‘[T]he separation of powers does not de-pend on TTT whether ‘the encroached-uponbranch approves the encroachment.’ ’’Free Enterprise Fund v. Pub. Co. Ac-counting Oversight Bd., ––– U.S. ––––, 130S.Ct. 3138, 3155, 177 L.Ed.2d 706 (2010)(quoting New York v. United States, 505


U.S. 144, 182, 112 S.Ct. 2408, 120 L.Ed.2d120 (1992)).

The government does not point to asingle expression of congressional intent insupport of permitting state law tort claimsto apply overseas based solely on the na-ture of the allegations. Instead, it assertsthat ‘‘in the limited circumstances wherethe state law claim is based on allegationsthat the contractor committed torture, asdefined in 18 U.S.C. § 2340, courts shouldtake into account the strong federal inter-ests embodied in that federal law.’’ Br. ofUnited States at 22. In these circum-stances, the government suggests, ‘‘the to-tality of the federal interests is differentand does not require that state-law tortsuits against contractors be preempted.’’Id. at 3.

It is difficult to see how 18 U.S.C.§ 2340—which exhibits an interest in pun-ishing torture through federal criminalprosecution—demonstrates any congres-sional interest in permitting torture-basedstate tort claims. The federal anti-torturestatute, 18 U.S.C. § 2340 et seq., does noteven contain a private right of action.And in any event, courts have no license tocreate exceptions based on helter-skelterapplication of federal criminal statutes, ex-ceptions that permit otherwise preemptedstate tort claims to go forward.

It is elemental that a federal court can-not simply engraft on its own a federalcriminal law standard onto state tortclaims. The federal judiciary is not per-mitted to reconfigure the elements of astate law cause of action. For as the‘‘[Supreme] Court recognized in [Lingle v.Norge Division of Magic Chef, Inc., 486U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410(1988),] the responsibility for defining theelements and scope of a state cause ofaction rests with the state legislature andstate courts.’’ Childers v. Chesapeake &

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

This court requested the government’ssubmission of an amicus brief here, and Iam appreciative of that submission. How-ever, the government’s amicus position isat odds with its own conduct. If the gov-ernment believes that there have been con-tractual or criminal violations on the partof its own contractors, then it should pro-ceed to exercise its unquestioned contrac-tual and prosecutorial authority to go afterthe culpable party. See infra Part II.B.If it does not believe such violations haveoccurred, it should say so. But given thesignificance of this case, the exclusive com-petence of the federal government in thefield of foreign affairs, and the principlesarticulated in Aramco, Morrison, andGregory, neither the federal executive northe federal judiciary is entitled to assumethat states want their tort law appliedextraterritorially absent a plain statementto the contrary.

Here there is no indication that theCommonwealth of Virginia intended to ap-ply its laws of assault, battery, sexual as-sault, intentional and negligent infliction ofemotional distress, and negligent hiringand supervision to the battlefield conductof contractors integrated into the wartimeactivities abroad of the U.S. military. Astate’s interest in employing a tort regimeis largely confined to tortious activity with-in its own borders or against its own citi-zens. It is anything but clear that Virginiahas any interest whatsoever in providingcauses of action that allow foreign citizensthat have never set foot in the Common-wealth to drag its own corporations intocostly, protracted lawsuits under who-knows-what legal authority.

Notwithstanding the presumptionagainst extraterritorial application of statelaw and the absence of any indication thatthe Commonwealth wants its tort law ap-


plied to battlefield conduct, the Al Shimariplaintiffs ask the district court to applyVirginia tort law to war-zone conduct thattook place over 6,000 miles away. It isdifficult to find a limiting principle in theplaintiffs’ analysis. Under their approach,Virginia tort law—and the tort regimes ofall fifty states—can be applied to conductoccurring in every corner of the earth. Byallowing plaintiffs’ causes of action to goforward, the majority lends its imprimaturto the extraterritorial application of statetort law. Reading the majority’s opinion, Iwonder if my friends will next launch statetort law into outer space.

4.

Even if the Commonwealth had some-how intended the extraterritorial applica-tion of its tort law, which it has not, theSupreme Court has made clear that statelaws aimed at influencing foreign relationscannot stand when they conflict with feder-al objectives. In Crosby v. National For-eign Trade Council, 530 U.S. 363, 120S.Ct. 2288, 147 L.Ed.2d 352 (2000), forexample, the Court invalidated a Massa-chusetts law that restricted state agenciesfrom purchasing goods or services fromcompanies doing business with Burma.Id. at 366, 120 S.Ct. 2288. The Courtreasoned that the state law was ‘‘an obsta-cle to the accomplishment of Congress’sfull objectives’’ under a federal law thatdirected the President to develop a com-prehensive, multilateral strategy towardBurma. Id. at 369, 373, 120 S.Ct. 2288.By ‘‘imposing a different, state system ofeconomic pressure against the Burmesepolitical regime,’’ the Court explained, ‘‘thestate statute penalizes some private actionthat the federal Act (as administered bythe President) may allow, and pulls leversof influence that the federal Act does notreach.’’ Id. at 376, 120 S.Ct. 2288. Conse-quently, the Court explained, the Massa-chusetts law could not stand because it

‘‘compromise[d] the very capacity of thePresident to speak for the Nation with onevoice in dealing with other governments.’’Id. at 381, 120 S.Ct. 2288.

Similarly, in American Insurance Ass’nv. Garamendi, 539 U.S. 396, 123 S.Ct.2374, 156 L.Ed.2d 376 (2003), the Courtstruck down California’s Holocaust VictimInsurance Relief Act, which required anyinsurer doing business in the state to dis-close information about Holocaust-era in-surance policies. Id. at 401, 123 S.Ct.2374. The Court began by noting,

There is TTT no question that at somepoint an exercise of state power thattouches on foreign relations must yieldto the National Government’s policy,given the ‘concern for uniformity in thiscountry’s dealings with foreign nations’that animated the Constitution’s alloca-tion of the foreign relations power to theNational Government in the first place.

Id. at 413, 123 S.Ct. 2374 (citation omit-ted). In the context of Holocaust-era in-surance claims, explained the Court, ‘‘Cali-fornia seeks to use an iron fist where thePresident has consistently chosen kidgloves.’’ Id. at 427, 123 S.Ct. 2374. Ac-cordingly, the Court held that the statestatute was preempted because it ‘‘inter-feres with the National Government’s con-duct of foreign relations.’’ Id. at 401, 123S.Ct. 2374.

Under Crosby and Garamendi, statesare prohibited from obstructing the for-eign policy objectives of the federal gov-ernment. There can be no question thatthere is obstruction here, where the feder-al law, speaking with one voice, can poten-tially be supplanted by the fifty differentvoices of varying state tort regimes, eachone potentially working at cross-purposeswith federal aims. Thus, even if Virginiawanted to extend its tort law to overseasbattlefield conduct of military contractors,


it cannot create an ‘‘obstacle to the accom-plishment of Congress’s full objectives’’under federal law. Crosby, 530 U.S. at373, 120 S.Ct. 2288. Because Congresshas emphatically forbid tort law from gov-erning battlefield conduct, any attempt to‘‘impos[e] a different, state system’’ on thebattlefield, id. at 376, 120 S.Ct. 2288, wouldimpermissibly ‘‘interfere[ ] with the Na-tional Government’s conduct of foreign re-lations,’’ Garamendi, 539 U.S. at 401, 123S.Ct. 2374.

B.

In contrast to the Commonwealth of Vir-ginia, Congress has a constitutionally pro-tected role in foreign affairs. See U.S.Const. art. I, § 8, cls. 1, 11–15. Congressundoubtedly has the power to allow privateparties to pursue tort remedies againstwar-zone contractors operating under mili-tary authority. ‘‘[T]he Constitution con-templated that the Legislative Branchhave plenary control over TTT regulations,procedures and remedies related to mili-tary disciplineTTTT’’ Chappell v. Wallace,462 U.S. 296, 301, 103 S.Ct. 2362, 76L.Ed.2d 586 (1983). Congress could thusdo what the majority has asserted its ownright to do, namely to authorize foreignnationals as private attorneys general topolice contractor conduct in theatres ofarmed combat. However, contrary to theplaintiffs’ assertions, there is no indicationthat Congress has pursued any suchcourse.

Plaintiffs contend that the Federal TortClaims Act (‘‘FTCA’’) permits private par-ties to bring state law tort suits againstmilitary contractors for wartime conduct.In analyzing this claim, we must adhere tothe longstanding presumption that Con-gress does not permit private parties tointerfere with military operations absentexplicit statutory authorization. ‘‘[U]nlessCongress specifically has provided other-

wise, courts traditionally have been reluc-tant to intrude upon the authority of theExecutive in military and national securityaffairs,’’ Dep’t of Navy v. Egan, 484 U.S.518, 530, 108 S.Ct. 818, 98 L.Ed.2d 918(1988), and this hesitance to transgressconstitutional boundaries applies fully toour interpretation of statutes. See Feresv. United States, 340 U.S. 135, 146, 71S.Ct. 153, 95 L.Ed. 152 (1950) (declining toread the FTCA’s broad waiver of sover-eign immunity to allow military personnelto sue the government for service-relatedinjuries even though no provision explicitlyprevents them from doing so); see alsoUnited States v. Johnson, 481 U.S. 681,690, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987)(reaffirming the holding in Feres because‘‘suits brought by service members againstthe Government for injuries incurred inci-dent to service TTT are the ‘type[s] ofclaims that, if generally permitted, wouldinvolve the judiciary in sensitive militaryaffairs at the expense of military disciplineand effectiveness.’ ’’ (emphasis in original)(citation omitted)).

To adopt plaintiffs’ reading of the FTCAwould require us to abandon this traditionof restraint. This broadly phrased statutedoes not contain anything close to a con-gressional authorization to private partiesto hale war-zone military contractors intocivilian courts. At most, it provides that‘‘the term ‘Federal agency’ TTT does notinclude any contractor with the UnitedStates.’’ 28 U.S.C. § 2671. But thatbroad definitional provision does not meanthat ‘‘contractors TTT are expressly exclud-ed from the FTCA’s reach’’ in the area ofbattlefield torts. Al Shimari, 658 F.3d at435 (King, J., dissenting). For a ‘‘generalstatutory rule usually does not govern un-less there is no more specific rule,’’ Greenv. Bock Laundry Mach. Co., 490 U.S. 504,524, 109 S.Ct. 1981, 104 L.Ed.2d 557(1989), but here there is another provision


of the FTCA that speaks more specificallyto whether military contractors are im-mune from these tort actions.

That provision is the combatant activi-ties exception, which preserves the govern-ment’s sovereign immunity against ‘‘[a]nyclaim arising out of the combatant activi-ties of the military or naval forces, or theCoast Guard, during time of war.’’ 28U.S.C. § 2680(j). Multiple textual clues inthis exception indicate that Congress want-ed to keep tort law out of the battlefieldregardless of a defendant’s status as asoldier or a contractor.

To start with, the exception bars claims‘‘arising out of’’ combatant activities, id.,and this phrase is among the broadest inthe law. ‘‘[I]n workmen’s compensationstatutes,’’ for instance, ‘‘[t]he arising-out-oftest is a familiar one used TTT to denoteany causal connection between the term ofemployment and the injury.’’ Saleh v. Ti-tan Corp., 580 F.3d 1, 6 (D.C.Cir.2009)(emphasis in original) (footnote omitted).Indeed, the use of this phrase in otherFTCA exceptions has precluded a widerange of actions. For instance, the‘‘sweeping language’’ of 28 U.S.C.§ 2680(h)—which preserves the govern-ment’s sovereign immunity against claims‘‘arising out of assault [or] battery’’—barsnot only battery actions, but negligenceclaims that ‘‘stem from a battery’’ as well.United States v. Shearer, 473 U.S. 52, 55,105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (plu-rality opinion); see also Kosak v. UnitedStates, 465 U.S. 848, 854, 104 S.Ct. 1519,79 L.Ed.2d 860 (1984) (equating ‘‘arising inrespect of’’ in 28 U.S.C. § 2680(c) with‘‘arising out of’’ and observing that theformer ‘‘encompassing phrase TTT seemsto sweep within the exception all injuriesassociated in any way with the ‘detention’of goods’’). Congress wanted to forbidtort suits stemming from combatant activi-ties, and it chose in ‘‘[a]ny claim arising

out of’’ a broad and widely recognizedprohibitory term.

The exception’s use of the term ‘‘com-batant activities’’ does not denote a narrowsubset of military operations but a legisla-tive intention to prevent tort from enteringthe battlefield. This term encompasses‘‘not only physical violence, but activitiesboth necessary to and in direct connectionwith actual hostilities,’’ Johnson v. UnitedStates, 170 F.2d 767, 770 (9th Cir.1948),and therefore has a considerable sweep.As the Supreme Court has noted, thisprovision ‘‘paint[s] with a far broaderbrush’’ than other FTCA exceptions thatbar suits arising out of a subset of harmsassociated with a particular area. See Do-lan v. U.S. Postal Serv., 546 U.S. 481, 489–90, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006)(contrasting the combatant activities ex-ception in § 2680(j) with § 2680(b), whichpreserves immunity for ‘‘just three typesof harm’’ associated with mail delivery).Given the broad language of the combatantactivities exception, it is difficult to believethat Congress wanted the sensibilities oftort to govern the realities of war.

Indeed, as the District of Columbia Cir-cuit recognized, ‘‘the policy embodied bythe combatant activities exception is sim-ply the elimination of tort from the battle-field.’’ Saleh, 580 F.3d at 7. Congressinsulated the theatre of war from tort lawbecause it ‘‘recognize[d] that during war-time encounters no duty of reasonable careis owed to those against whom force isdirected as a result of authorized militaryaction.’’ Koohi v. United States, 976 F.2d1328, 1337 (9th Cir.1992). In order toshield ‘‘[a]ny claim arising out of the com-batant activities of the military’’ from tortliability, Congress used some of the broad-est language possible when drafting thisexception. It is not our role to dismemberthis exclusion’s text in order to determine


when and to what extent torts can arisefrom combatant activities after all.

If this textual evidence were not enough,the Supreme Court has refused to read theFTCA to authorize tort suits against de-fense contractors, albeit in a slightly dif-ferent context. See Boyle v. United Techs.Corp., 487 U.S. 500, 511–12, 108 S.Ct. 2510,101 L.Ed.2d 442 (1988). The contractor inBoyle provided a helicopter for the mili-tary rather than aid in a war-zone, id. at502, 108 S.Ct. 2510, but the logic is thesame. Because the FTCA’s discretionaryfunction exception precluded suits againstthe government for design defects in mili-tary equipment, Boyle held that it barredthose actions against defense contractorsas well. Id. at 511–12, 108 S.Ct. 2510. Asthe Court observed, ‘‘[i]t makes little senseto insulate the Government against finan-cial liability TTT when the Government pro-duces the equipment itself, but not when itcontracts for the production.’’ Id. at 512,108 S.Ct. 2510.

I recognize that the temptation exists toexalt the brave men and women who de-fend our nation in time of war, and then, inthe next breath, to disparage contractorsas some sort of evil twin responsible forwars’ inevitable missteps and excesses.But the FTCA does not permit such adichotomy. It makes even less sense thanin Boyle to shield the military from litiga-tion for the battlefield activities of soldiersbut not contractors. In Boyle, the Su-preme Court did not even require a mili-tary-specific exception before insulatingmilitary contractors from design-defect lia-bility. Instead, the Court relied on thediscretionary function exception, which isnot specific to military operations but in-stead broadly precludes claims ‘‘basedupon the exercise or performance or thefailure to exercise or perform a discretion-ary function or duty on the part of afederal agency or an employee of the Gov-

ernment.’’ 28 U.S.C. § 2680(a); Boyle,487 U.S. at 511–12, 108 S.Ct. 2510. Here,by contrast, Congress has provided an ex-ception that singles out claims ‘‘arising outof TTT combatant activities.’’ 28 U.S.C.§ 2680(j). If the Supreme Court was will-ing to read the former general provision tocover military contractors, it would nothesitate to do the same with the lattermore targeted exception.

In addition to enacting the combatantactivities exception, Congress has indicat-ed its desire to keep tort law off thebattlefield by subjecting certain militarycontractors to other forms of discipline forwar-zone conduct. For instance, the Uni-form Code of Military Justice (‘‘UCMJ’’)applies not only to members of our mili-tary, but to ‘‘persons serving with or ac-companying an armed force in the field’’ in‘‘time of declared war or a contingencyoperation’’ as well. 10 U.S.C. § 802(a)(10).The Military Extraterritorial JurisdictionAct likewise subjects these contractors todomestic criminal sanctions by punishinganyone who, ‘‘while employed by or accom-panying the Armed Forces’’ abroad, ‘‘en-gages in conduct outside the United Statesthat would constitute an offense punisha-ble by imprisonment for more than 1 yearif the conduct had been engaged in withinthe special maritime and territorial juris-diction of the United States.’’ 18 U.S.C.§ 3261(a)(1). Unlike the application ofstate tort law, these procedures for hold-ing contractors accountable were approvedby Congress.

Ignoring the military risks and legalconstraints that prohibit extraterritorialapplication of state tort law, the majorityinserts tort into the battlefield by allowingthese suits to go forward. But beforeapplying state tort law to the combat activ-ities of contractors working under the U.S.military, we should make certain that thelegislative branch has authorized us to do


so. As the Supreme Court explained inUnited States v. Stanley, 483 U.S. 669, 107S.Ct. 3054, 97 L.Ed.2d 550 (1987), ‘‘[T]heinsistence TTT with which the Constitutionconfers authority over the Army, Navy,and militia upon the political branches TTT

counsels hesitation in our creation of dam-ages remedies in this field.’’ Id. at 682,107 S.Ct. 3054. Because I find no evi-dence that Congress has recruited privateparties—much less foreign nationals—topolice the frontline, I cannot join my col-leagues’ decision to the contrary.

C.

Instead of deferring to Congress’s validexercise of its constitutionally grantedpowers, the majority places contractor ac-countability in the hands of the unaccount-able. Thanks to the majority’s efforts,contractors that were previously subject tothe control of the executive have new judi-cial masters. But when unelected judgesrender contestable decisions about militarypolicy in the course of applying tort law tocontractors, the public will be unable toremove them from their posts. This fliesin the face of our constitutional tradition ofensuring some popular control over theprosecution of a war. As the SupremeCourt has explained, ‘‘[M]atters of war-making belong in the hands of those whoare TTT most politically accountable formaking them.’’ Hamdi v. Rumsfeld, 542U.S. 507, 531, 124 S.Ct. 2633, 159 L.Ed.2d578 (2004) (plurality opinion).

No one will contend that tort law, how-ever derived and defined, is a field excel-ling in precision. The vagueness and in-determinacy of these cut-and-paste causesof action will permit judicial discretion andjury variability to govern this most sensi-tive of areas. Courts must henceforth setthe standards of care in matters of war-time captures, detentions, and interroga-tions as well as the measure of damages

for the same. Not only that, but methodsof interrogation and procurement of intelli-gence will be at the sufferance of a singlejudicial officer, safely ensconced in a se-cure courtroom, passing judgment on bat-tlefield conduct thousands of miles away.Litigants will plead as a matter of courseto the breach of whatever may seem theprevailing standard of care, thus setting inmotion logistical problems inherent intranscontinental tort suits of such novelstripe.

The results of the rising tide of litigationwill be both unpredictable and contradicto-ry, as particular judges and juries debateand disagree over which methods of deten-tion and interrogation are permissible.And as detention of the enemy becomes amore litigious enterprise, the incentives toshortcut capture with more lethal and un-manned measures may rise. Whether ornot one approves of transplanting the deli-cacy and etiquette of the judicial branchinto a theatre of war is not the question.These lawsuits presage a massive transferof authority reserved to the politicalbranches under Articles I and II of ourConstitution into judicial hands, and to asingle trial judge and jury to boot. This isa subject one would expect Congress toaddress in great and meticulous detail, asit has, for example, in the Military Com-missions Act of 2009, Pub.L. 111–84, 123Stat. 2190, 2574–614, the Military Commis-sions Act of 2006, Pub.L. 109–366, 120Stat. 2600, and the Detainee TreatmentAct of 2005, Pub.L. 109–148, 119 Stat.2739, and I respectfully take issue with thematter-of-fact manner in which the gravityof the step taken is not even acknowledgedby the majority, much less addressed.

By opening the door to the extraterrito-rial application of different state tort re-gimes, the majority allows for unlimitedvariation in the standard of care that isapplied to critical combatant activities.


There is not a widely agreed upon stan-dard of care for overseas detentions andinterrogations, and different states will al-low different causes of action to go for-ward and will apply different standards tothem. And even if there were an agreedupon standard—which there is not—par-ticular judges and juries would apply thatstandard inconsistently. Such a standardwould probably bottom out on some ver-sion of reasonableness. But in the contextof detention and interrogation, what exact-ly does reasonableness mean? That ques-tion could provoke innumerable answers,and the very vagueness of tort formula-tions as to the standard of care means thatcivilian jurors will be setting the standardsfor detention and interrogation of militarydetainees without knowledge of conditionsthat obtain in a zone of combat halfwayacross the globe. I imply no disrespect ofjurors who give of their time and goodsense to our system of justice, but thissystem will provide no guidance and nopredictability whatsoever because it willleave the conduct of military functions tothe fortuities of litigious hindsight.

Contractors can be forgiven for notwanting to entrust their employees to thevagaries and caprice of individual verdictsand trials. Add to that the prospect ofpunitive damages and other uncertainmeasures of recovery, and one will intro-duce into the detention and interrogationprocess a degree of risk aversion thatcould well result in the gathering of aslittle vital intelligence as possible. Whilesome may regard reduced interrogationswith satisfaction, those whose lives andfortunes depend upon the acquisition ofvital intelligence are not likely to join anychorus of approval.

The majority’s response is undoubtedlythat all these questions remain to be ‘‘ir-oned out.’’ But such words are small com-fort to those who must make critical deci-

sions in the field while we sit here inVirginia or Maryland or whatever othervenue is doing the ‘‘ironing.’’

By dismissing these appeals, the majori-ty only drifts and dawdles, sparing itselfthe need to come to grips with the issues,and kicking the can far down the road.The majority fails to recognize that this isa matter of some urgency. Just for start-ers, commanders in the field need action-able battlefield intelligence in order forsoldiers to survive. Few wars have beenor will be prosecuted successfully withoutintelligence that permits units to plan ac-curate strikes against enemy forces, andevery bit as importantly, to know whenlethal force is plotted against Americansthemselves. Actionable intelligence has al-ways had both offensive and defensive val-ue. In other words, intelligence not onlyassists us in prevailing; it saves Americanlives.

While there is legitimate debate abouthow intelligence is best obtained, a tortsuit is probably the very worst forum inwhich that issue can or should be resolved.The judges and juries who review thosematters cannot fairly be expected to pos-sess a background in the utility of differentforms of military intelligence, and to askthem to decide such sensitive, delicate, andcomplicated questions is, in a word, unreal-istic. See Carmichael v. Kellogg, Brown &Root Servs., Inc., 572 F.3d 1271, 1286–87(11th Cir.2009) (explaining that militaryintelligence-gathering is traditionally insu-lated from judicial review); United Statesv. Truong Dinh Hung, 629 F.2d 908, 913–14 (4th Cir.1980) (noting that ‘‘the courtsare unschooled in diplomacy and militaryaffairs, a mastery of which would be essen-tial to passing upon’’ matters of intelli-gence). None of this is to say, of course,that military contractors are without faultor that abuses should ever go unremedied.It is simply to make the point that some-


thing as mischievous as the placement oftort law in military calculations should beapproved by some body capable of appreci-ating the consequences of its action andconstitutionally entrusted with the task.

II.

A.

While the present suits may focus uponmethods of interrogation and conditions ofdetention, the issue is larger even thanthat. In assuming that tort suits are apreferred method of policing the contrac-tors who assist military operations, themajority obscures the fact that there existsa more proper remedy in this area. In theabsence of some contrary expression bythe Congress, the most basic precepts ofseparation of powers require that the al-leged abuses of military contractors mustbe addressed through the medium of con-tract, not through tort. In short, withouta clear manifestation of Article I congres-sional intent, Article II mandates that con-tractual, not tort remedies, be utilized.

It is a truism that government, includingthe military, must contract. Few, if any,governmental tasks are undertaken todaywithout some form of public-private part-nership. The federal government routine-ly carries out sensitive public functionsthrough private entities, from runningbackground 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, 122S.Ct. 515, 151 L.Ed.2d 456 (2001), to inves-tigating criminal activity, see United Statesv. Warshak, 631 F.3d 266, 320 (6th Cir.2010). Assisting with combat operations isno different. There is ‘‘ample evidencethat the military finds the use of civiliancontractors in support roles to be an es-sential component of a successful war-timemission.’’ Lane v. Halliburton, 529 F.3d

548, 554 (5th Cir.2008). The Departmentof Defense ‘‘employs around 170,000 mili-tary contractors on a yearly basis, havingmore than doubled its use of contractingservices since 2001.’’ Lauren Groth,Transforming Accountability: A Proposalfor Reconsidering how Human Rights Ob-ligations Are Applied to Private MilitarySecurity Firms, 35 Hastings Int’l & Comp.L.Rev. 29, 38 (2012).

Apart from being necessary, the mili-tary’s partnership with private enterprisehas salutary aspects as well. For onething, it permits our all-volunteer militaryto handle troop shortages in a cost-effi-cient manner. According to the ArmyField Manual, ‘‘[r]ecent reductions in mili-tary structure, coupled with high missionrequirements and the unlikely prospect offull mobilization, mean that to reach aminimum of required levels of support,deployed military forces will often have tobe significantly augmented with contractorsupport.’’ U.S. Dep’t of the Army, FieldManual 3–100.21, Contractors on the Bat-tlefield Preface (2003). Because of thesechanges in our military, ‘‘the future battle-field will require ever increasing numbersof often critically important contractor em-ployees.’’ Id.

These partnerships also allow the mili-tary and its contractors to pool their re-spective expertise and bring the best ofpublic service and private industry to bearon the mission at hand. This reliance oncontractor expertise will become onlymore necessary as warfare becomes moretechnologically demanding. As the ArmyField Manual notes, ‘‘the increasingly hi-tech nature of our equipment TTT [has]significantly increased the need to proper-ly integrate contractor support into allmilitary operations.’’ Id. War is not astatic enterprise, and our military willneed every bit of the edge that technologi-cal expertise affords in order to face the


hostilities of the future. Only the cluelessbelieve future battlefields will not promi-nently feature private contractors.

B.

Given these realities, it is illusory topretend that these suits are simply ordi-nary tort actions by one private partyagainst another. Instead, because con-tractors regularly assist in ‘‘the type ofgovernmental action that was intended bythe Constitution to be left to the politicalbranches directly responsible TTT to theelectoral process,’’ see Gilligan v. Morgan,413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d407 (1973), a decent respect for the separa-tion of powers compels us to consider whatsort of remedy would best ensure the au-thority of the executive over those withwhom it partners in carrying out what arecore executive functions. The answer isobvious. Unlike tort, contract law givesthe executive branch a mechanism of con-trol over those who regularly assist themilitary in performing its mission.

For one thing, contract law is a moretextually precise field than tort law, allow-ing the executive branch to set the stan-dard of care in the terms of the contract.In contrast to tort suits in which judgeswould have to decide what constitutes a‘‘reasonable bombing,’’ McMahon v. Presi-dential Airways, Inc., 502 F.3d 1331, 1350(11th Cir.2007), a ‘‘prudent intercept,’’ Tif-fany v. United States, 931 F.2d 271, 279(4th Cir.1991), or a legitimate interroga-tion method, contract cases would turn onmore definite language in the contract it-self—language that reflected the policychoices of a democratically accountablebranch. Rather than rely on the judicialapplication of some indeterminate stan-dard of reasonable care, the executivebranch could require contractors to abideby well-established military rules and man-uals in the terms of its contractual agree-

ment. For instance, the government coulddirect military contractors to ‘‘adhere tothe standards of conduct established bythe operational or unit commander.’’ SeeIbrahim v. Titan Corp., 556 F.Supp.2d 1, 6(D.D.C.2007) (internal quotation mark andcitation omitted). Focusing on the govern-ment’s contract rather than theories of tortwould also ensure that important federalinterests were not ‘‘left to the vagaries ofthe laws of the several States,’’ but instead‘‘governed by uniform rules’’ in the con-tracts themselves. Carlson v. Green, 446U.S. 14, 23, 100 S.Ct. 1468, 64 L.Ed.2d 15(1980). The majority, however, appears toprefer judicial supervision through mallea-ble and multiple tort standards to execu-tive control through clearer and more con-sistent contractual provisions.

Contract law also gives the executivebranch, as party to the contract, the op-portunity to pursue a variety of remedies.In addition to being able to sue a contrac-tor in the event of a breach, the executivecan create more tailored sanctions in theterms of the contract itself. The govern-ment, for example, could contractually re-serve the right to demand that its contrac-tor ‘‘remove TTT any employee for reasonsof misconduct,’’ see Ibrahim, 556F.Supp.2d at 7 (omission in original),thereby allowing it to jettison bad appleswithout jeopardizing an entire military op-eration.

These contractual tools are not the onlyones available to the executive branch.They are augmented by a web of regula-tions to which contractors subject them-selves by partnering with the military.Army Regulations, for example, permitcommanders to ‘‘apprehend and detaincontractors for violations of the law’’ aswell as ‘‘restrict or revoke TTT access toArmy facilities or installations for disci-plinary infractions.’’ Army Reg. 715–9§ 4–2(e). What is more, the government


can pursue military sanctions against con-tractors for battlefield misconduct underthe UCMJ, see 10 U.S.C. § 802(a)(10), aswell as domestic criminal punishmentsagainst contractors for crimes committedabroad, see 18 U.S.C. § 3261(a)(1). Justwithin this circuit, in United States v.Passaro, 577 F.3d 207 (4th Cir.2009), a‘‘paramilitary contractor’’ was convicted offederal assault charges arising out of thelethal interrogation of a detainee in Af-ghanistan. See id. at 210–12. The gov-ernment has employed its prosecutorialpowers to punish rogue interrogators inthe past, and I see little reason why itwould forswear the use of such sanctionsin the future. See Saleh, 580 F.3d at 2(noting that in the wake of the events atAbu Ghraib, the executive branch obtainedconvictions of a number of soldiers in-volved and pursued ‘‘extensive investiga-tions’’ into allegations of abuse by contrac-tors).

When combined with contractual tools,these laws provide the executive branchwith an arsenal of remedies ranging fromremoval of a specific contractor to criminalpunishment. The executive requires ‘‘adegree of discretion’’ in the area of nation-al security, see United States v. Curtiss–Wright Export Corp., 299 U.S. 304, 320, 57S.Ct. 216, 81 L.Ed. 255 (1936), and thisselection of sanctions gives it an appropri-ate amount of flexibility. Because the mil-itary and its contractors are tightly bound,litigation in federal court often subjectsboth to judicial process. Unlike tort suitsinstigated at the behest of private parties,contractual and criminal enforcement per-mits the executive to protect military com-manders and contractors from being ‘‘un-necessarily and dangerously distracted bylitigation half a world away’’ and to pre-vent ‘‘discovery into military operations’’from ‘‘intrud[ing] on the sensitive secretsof national defense.’’ See Hamdi, 542 U.S.at 532, 124 S.Ct. 2633 (plurality opinion).

In sum, it is silly to think that withouttort suits, military contractors will simplybe wandering around war zones unsuper-vised. What the chain of command doesfor military officers, contract law does formilitary contractors. As the Army FieldManual notes, ‘‘The military chain of com-mand exercises management controlthrough the contract.’’ U.S. Dep’t of theArmy, Field Manual, supra, § 1–25.‘‘[P]roper military oversight of contractorsis imperative’’ to integrating these privateactors into military operations, id. § 1–23,and contract law achieves this goal in waysthat tort law cannot. Even though con-tractors are not formally ‘‘part of the oper-ational chain of command,’’ they are ‘‘man-aged in accordance with the terms andconditions of their contract’’ through theContracting Officer Representative, who‘‘serves as the operational commander’sprimary oversight.’’ Army Reg. 715–9§ 4–1(c)–(d). Thus, contract law ensuresthat these contractors are ‘‘subject to mili-tary direction, even if not subject to nor-mal military discipline.’’ Saleh, 580 F.3dat 7. In other words, ‘‘the Government’sbroad authority TTT in managing its opera-tions does not turn on’’ whether ‘‘contractemployees’’ or ‘‘civil servants’’ are in-volved. NASA v. Nelson, ––– U.S. ––––,131 S.Ct. 746, 758–59, 178 L.Ed.2d 667(2011) (citation omitted).

Tort law, however, conflicts with ratherthan complements these contractual mech-anisms of control by ‘‘interfer[ing] with thefederal government’s authority to punishand deter misconduct by its own contrac-tors.’’ See Saleh, 580 F.3d at 8. Themajority’s allocation of common law reme-dies is paradoxically not just a matter ofcommon law. It is a decision concerningwhich branch of government will controlthe contractors that assist our soldiers onthe battlefield. Whereas contract andcriminal law places contractor accountabili-


ty where Article II places it—in the handsof the executive—tort law places it in thehands of the judiciary. But the executivebranch—and not the judicial—is responsi-ble for overseeing a war effort under theConstitution. Whereas the President isrequired as Commander in Chief ‘‘to takeresponsible and continuing action to supe-rintend the military,’’ Loving v. UnitedStates, 517 U.S. 748, 772, 116 S.Ct. 1737,135 L.Ed.2d 36 (1996), we as judges are‘‘not given the task of running the Army.’’Orloff v. Willoughby, 345 U.S. 83, 93, 73S.Ct. 534, 97 L.Ed. 842 (1953).

It is disquieting to say the least that themajority now believes it can displace, or touse a euphemism, ‘‘supplement’’ executivecontrol of military contractors with judicialoversight. The costs of that decision willbe severe. For one thing, it bleeds togeth-er two areas of law—tort and contract—that are conceptually distinct. No one dis-putes that those contractors who actuallyengage in torture breach those provisionsof their contracts that require them to actin accordance with federal law. But a‘‘[b]reach of contract is not a tort,’’ XCOInt’l Inc. v. Pac. Scientific Co., 369 F.3d998, 1002 (7th Cir.2004), and it only mud-dies the law to permit private litigants tobring tort suits against contractors justbecause the latter allegedly violated anagreement with the executive. ‘‘[T]hemain currents of tort law run in differentdirections from those of contract,’’ E. Riv-er S.S. Corp. v. Transamerica Delaval,Inc., 476 U.S. 858, 873 n. 8, 106 S.Ct. 2295,90 L.Ed.2d 865 (1986), and it does littlegood to attempt to channel them together.

C.

At bottom, the majority’s facilitation oftort remedies chills the willingness of bothmilitary contractors and the governmentto contract. I have previously discussedthe chilling effect today’s decision will

have on private contractors, see supraPart I, but I fear that the majority’s ef-forts will discourage the government frompartnering with private industry as well.Congress might well think the defensebudget large enough without courts add-ing the prospect of uncertain tort liabili-ties. By increasing through prospectivetort suits the costs of employing contrac-tors on the battlefield, the majority inter-feres with the executive branch’s capacityto carry out its constitutional duties. Tothe Defense Department in an era of costconsciousness, the threat of tort liabilitycan chill both the government’s ability andwillingness to contract by raising the priceof partnering with private industry, andthat is particularly true here. Boyle not-ed, in fact, that burdens of ‘‘tort suits’’against military contractors ‘‘would ulti-mately be passed through TTT to the Unit-ed States itself, since defense contractorswill predictably raise their prices to coverTTT contingent liability.’’ 487 U.S. at 511–12, 108 S.Ct. 2510. So long as the execu-tive branch could control contractual per-formance through contract law, it had lit-tle reason to eschew valuable partnershipswith private enterprise. But now thatthird parties can pull contractors and theirmilitary supervisors into protracted legalbattles, we can expect a distortion of con-tractor and military decisionmaking to ac-count for that contingency. As the Salehcourt explained, ‘‘Allowance of such suitswill surely hamper military flexibility andcost-effectiveness, as contractors mayprove reluctant to expose their employeesto litigation-prone combat situations.’’ 580F.3d at 8. It will no longer be enoughthat military contractors meet their con-tractual commitments to a T, for thereexists no assurance that the standard ofcare embraced in subsequent tort suitswill incorporate by reference or otherwisethe criterion of meeting one’s contractualobligations.


‘‘[T]he separation-of-powers doctrine re-quires that a branch not impair another inthe performance of its constitutionalduties.’’ Loving, 517 U.S. at 757, 116 S.Ct.1737. Today’s decision does precisely that.‘‘[T]he Government’s practical capacity tomake contracts’’ is ‘‘the essence of sover-eignty itself.’’ United States v. Winstar,518 U.S. 839, 884, 116 S.Ct. 2432, 135L.Ed.2d 964 (1996) (internal quotationmark and citation omitted). By makingthe contract the essence of the govern-ment-contractor partnership, we diminishthe capacity of our adversaries to erodethis critical aspect of our national sover-eignty through litigation. Conversely, byelevating tort as a mechanism of weaken-ing this essential partnership, we givethose who do not wish us well a means ofputting their ill will to use. I can under-stand that our enemies would seek to useour own laws as a weapon against us, but Icannot understand why we should sanctionsuits, the unintended effect of which is toequip them.

III.

Rather than engage in a frank discus-sion of the consequences that will ensuefrom its ruling, the majority seeks a cubbyhole in the collateral order doctrine. Thisargument misses the mark—for many ofthe same reasons that tort law does notbelong on the battlefield, this case does notbelong back before the district court. Weare engaged in a lot of semantic wordgames here, losing completely the forestfor the trees. The collateral order doc-trine is not a matter of legalistic banter,but of letting an appellate court confront ina timely manner issues presenting grave,far-reaching consequences. Before us is adeeply unfortunate instance of litigationcreep where doctrines that postpone ap-peals in a domestic context are transposedto an international setting without recogni-tion of the gravity of such a shift of gears.

The collateral order doctrine is premisedon the eminently reasonable conclusionthat immunities from suit should be recog-nized sooner rather than later, because the‘‘rigors of trial’’ can often be every bit asdamaging as an adverse judgment. Digi-tal Equip. Corp. v. Desktop Direct, Inc.,511 U.S. 863, 870, 114 S.Ct. 1992, 128L.Ed.2d 842 (1994). Indeed, the ‘‘crucialdistinction between a right not to be triedand a right whose remedy requires TTT

dismissal’’ is whether the immunity inquestion would be eviscerated by the veryprocess of litigation. United States v. Hol-lywood Motor Car Co., 458 U.S. 263, 269,102 S.Ct. 3081, 73 L.Ed.2d 754 (1982).

Here, the asserted immunity can take ondifferent labels—‘‘law-of-war immunity,’’‘‘Boyle preemption,’’ or an inherently polit-ical question—but the underlying premiseis the same: that suits for damagesagainst private defendants arising out ofmilitary contracts performed in a theatreof war are not cognizable by the federalcourts under state tort law. The point ofthis immunity is not to determine after allthe vicissitudes of litigation who shouldwin and who should lose. Rather, it is arecognition that sensitive military mattersshould be insulated at the outset fromjudicial scrutiny, and the cases to this ef-fect are legion.

The majority’s contrary holding is ani-mated by a single mistaken belief: that‘‘the denial of a preemption claim stem-ming from the combatant activities excep-tion would not TTT entail significant scruti-ny of sensitive military issues.’’ Ante at218–19. The majority expresses this confi-dence despite its observation that ‘‘thequestions that will require proper answersTTT have yet to be fully ascertained.’’ Id.at 223. At a minimum, it seems clear thatthe majority’s pursuit of ‘‘the luxury of acomplete record developed through discov-


ery,’’ id. at 222, ‘‘careful analysis of intrin-sically fact-bound issues,’’ id. at 223, and‘‘exploration of the appellants’ duties undertheir contracts with the government,’’ id.at 223, contemplates full-fledged litigationthat will inevitably require the substantialscrutiny of military affairs.

But this is not just another day at theranch. This is an extraordinary case pre-senting issues that touch on the most sen-sitive aspects of military operations andintelligence. The majority’s proposed in-quiry, ‘‘focuse[d] on whether the contractorcomplied with the government’s specifica-tions and instructions,’’ id. at 219, mustperforce entail bringing the military per-sonnel who gave those instructions beforea court halfway around the world. TheSupreme Court has long cautioned against‘‘compelled depositions TTT by military offi-cers concerning the details of their mili-tary commands,’’ which will only ‘‘disruptthe military regime.’’ Stanley, 483 U.S. at682–83, 107 S.Ct. 3054.

Domestically, this sort of ‘‘broad rangingdiscovery and the deposing of numerouspersons TTT can be peculiarly disruptive ofeffective government.’’ Harlow v. Fitzger-ald, 457 U.S. 800, 817, 102 S.Ct. 2727, 73L.Ed.2d 396 (1982). It carries the risks of‘‘distraction of officials from their govern-mental duties, inhibition of discretionaryaction, and deterrence of able people frompublic service.’’ Id. at 816, 102 S.Ct. 2727.In the context of the battlefield, the conse-quences are geometrically more dire, sincethe plaintiffs seek information about theinterrogation methods and intelligencegathering techniques critical to our na-tion’s success in combat. ‘‘Even a smallchance that some court will order disclo-sure of a source’s identity could well im-pair intelligence gatheringTTTT’’ CIA v.Sims, 471 U.S. 159, 175, 105 S.Ct. 1881, 85L.Ed.2d 173 (1985). I wonder how the

majority expects an ‘‘inquiry focuse[d] onwhether the contractor complied with thegovernment’s specifications and instruc-tions,’’ ante at 219, to be resolved withouthauling before the district court the mili-tary officers who gave those instructions,exposing our national security apparatus indirect contravention of the SupremeCourt’s clear instructions to the contrary.

Because military contractors work atsuch close quarters with the military, judi-cial ‘‘inquiry into the civilian activities[will] have the same effect on militarydiscipline as a direct inquiry into militaryjudgments.’’ Johnson, 481 U.S. at 691 n.11, 107 S.Ct. 2063. This is hardly a fanci-ful concern. Al–Quraishi, for instance, willlikely seek discovery to validate the allega-tion in his complaint that ‘‘L–3 employ-ees[ ] and CACI employees conspired withcertain military personnel to torture pris-oners.’’ And the defendants are no better.CACI acknowledged at oral argumentthat, in order to produce sensitive militarydocuments that would vindicate itself, itwould push the discovery process againstthe military ‘‘as broadly as [it] possiblycould.’’

This quite plainly is the stuff of immuni-ty, not just some affirmative defense. De-spite the Supreme Court’s explicit admoni-tion to the contrary, both parties franklyseek to ‘‘require members of the ArmedServices’’ and their contractors ‘‘to testifyin court as to each other’s decisions andactions’’ in an attempt to sort out ‘‘thedegree of fault,’’ thereby undermining theprivate-public cooperation and disciplinenecessary for the execution of military op-erations. See Stencel Aero Eng’g Corp. v.United States, 431 U.S. 666, 673, 97 S.Ct.2054, 52 L.Ed.2d 665 (1977). Both partiesto this suit propose to go rummagingthrough the most sensitive military filesand documents, seeking to prove or dis-prove a broad-reaching conspiracy to con-


duct the alleged illegal interrogations. Ihave no doubt that these proceedings willquickly ‘‘devolve into an exercise in finger-pointing between the defendant contractorand the military, requiring extensive judi-cial probing of the government’s wartimepolicies.’’ Saleh, 580 F.3d at 8.

By pitting uniformed soldiers and mili-tary contractors against one another, wewill only ‘‘hamper the war effort and bringaid and comfort to the enemy,’’ which willrelish the opportunity to drag Americansoldiers into our ‘‘own civil courts’’ andthereby divert their ‘‘efforts and attentionfrom the military offensive abroad to thelegal defensive at home.’’ Johnson v. Ei-sentrager, 339 U.S. 763, 779, 70 S.Ct. 936,94 L.Ed. 1255 (1950). ‘‘[T]hese cases arereally indirect challenges to the actions ofthe U.S. military,’’ Saleh, 580 F.3d at 7,and it ‘‘would be difficult to devise moreeffective fettering of a field commanderthan to allow’’ the suits the majority en-courages today. See Eisentrager, 339 U.S.at 779, 70 S.Ct. 936.

Rather than allow this court to addressthe merits of the immunity question anddecide once and for all whether the de-mands of national security preclude thissuit, the majority prefers sending this liti-gation back to a lone district judge with nomore guidance than to say that he shouldkeep his finger in the dike and avoid dis-covery that imperils national security.The ringing klaxons that the SupremeCourt has sounded in this area do notpermit this casual approach. By the timethis case gets back to this court for consid-eration of the selfsame immunity questionsthat we could perfectly well address rightnow, the litigation process may well havedone its damage.

These were precisely the sort of con-cerns that animated the Supreme Court’sextension of the collateral order doctrineto appeals pertaining to qualified immunity

in Mitchell v. Forsyth, 472 U.S. 511, 524–30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).That case makes clear that the touchstoneof the collateral order doctrine is whetherdelayed review would impose ‘‘conse-quences TTT not limited to liability formoney damages.’’ Id. at 526, 105 S.Ct.2806. Yet the majority refuses to evenacknowledge that this case presents thesame distinct dangers—and worse—thatmerited immediate appeal in Forsyth, pre-ferring instead to act as if this were atypical personal injury case.

To justify this conclusion, the majorityrelies on semantics, ignoring the SupremeCourt’s instruction that the collateral or-der doctrine is to be given a ‘‘practicalrather than a technical construction.’’ Co-hen v. Beneficial Indus. Loan Corp., 337U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528(1949).

First, the majority relies on a literalreading of the dictum that collateral ap-peals are reserved for ‘‘explicit statutoryor constitutional guarantee[s] that trial willnot occur.’’ Midland Asphalt Corp. v.United States, 489 U.S. 794, 801, 109 S.Ct.1494, 103 L.Ed.2d 879 (1989). The majori-ty cites this lonely line for the sweepingand staggering conclusion that the inter-ests protected by Boyle and Saleh are‘‘ipso facto, not immunity.’’ Ante at 217.But the Supreme Court has recognizedthat ‘‘explicit statutory or constitutionalguarantee[s]’’ do not describe the whole ofthe collateral order doctrine. Mitchell v.Forsyth stands as an example of how ‘‘ex-plicitness may not be needed for jurisdic-tion’’ to hear a collateral appeal. DigitalEquip., 511 U.S. at 876, 114 S.Ct. 1992.What differentiates both qualified immuni-ty and law-of-war immunity from the massof claims that do not merit immediate re-view is their ‘‘good pedigree in public law.’’Id. In other words, these immunities aredistinct because although the interests


they protect are not specifically enshrinedin legislative text, they are nonethelessvital to the protection of the common good,and serve more than the mere interest of asingle individual in a favorable judgment.

Second, the majority examines Boylewith a microscopic eye, honing in on thefact that the case uses the word ‘‘liability’’rather than ‘‘immunity.’’ See ante at 217–18. First, this observation is not evencorrect—both the majority and the dissentin Boyle also describe the result as ‘‘immu-nity.’’ See, e.g., Boyle, 487 U.S. at 510, 108S.Ct. 2510 (‘‘contractor immunity’’); id. at523 (Brennan, J., dissenting) (‘‘contractorimmunity’’). Second, and more important,however, the Supreme Court has instruct-ed 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, 109 S.Ct. 1494. The ma-jority recognizes this principle when con-venient, see ante at 214 (quoting MidlandAsphalt, 489 U.S. at 801, 109 S.Ct. 1494),but chooses to ignore it when parsingBoyle with exegetic precision, see ante at217–18. All that is relevant to the inquirybefore us is that the rationale for Boylewas the same desire to avoid the ‘‘inhibi-tion of discretionary action’’ that made im-mediate appeals necessary in Mitchell v.Forsyth. Compare Boyle, 487 U.S. at 511–13, 108 S.Ct. 2510, with Forsyth, 472 U.S.at 525–26, 105 S.Ct. 2806.

Given the fact that these cases simplybristle with novel, unprecedented ques-tions, their duration is likely to be meas-ured in years. It will in all likelihood be along time indeed before they ever againreach the court of appeals, especially inview of the fact that the vote here willoperate as a disincentive for any futurecertified appeals under 28 U.S.C.§ 1292(b). District courts have been givena signal from this court that we do notwant to be bothered by these appeals no

matter how significant the issues might be.Today’s opinion gives the district courts agreen light to plunge without a scintilla ofdirection into the intractable difficultiesand significant pitfalls of this litigation.The danger is precisely that which thecollateral order doctrine is meant to fore-stall, namely the expenditure of years oflitigation involving a succession of nationalsecurity concerns in cases that plainlyshould be dismissed at the very outset.See Will, 546 U.S. at 353, 126 S.Ct. 952;Gough v. Perkowski, 694 F.2d 1140, 1145(9th Cir.1982). If the collateral order doc-trine has no role in saving resources andsparing wasted efforts in a context such asthis, then I fear it has been largely evis-cerated in those situations where it wouldbe of most use.

I recognize that people on both sides ofthese questions have the noblest intentionsin mind, but we should not be oblivious tothe profound changes that are occurring.It was once the case that judges of allpersuasions went to great lengths to re-strain themselves from entering theatresof armed conflict with prescriptions oftheir own, and this was true whether theconflict was regional or worldwide in itsdimensions. See, e.g., Holtzman v. Schles-inger, 414 U.S. 1304, 1309–10, 1315, 94S.Ct. 1, 38 L.Ed.2d 18 (1973) (Marshall,Circuit Justice) (refusing to review air op-erations over Cambodia because, in part,‘‘Justices of this Court have little or noinformation or expertise’’ with regard tosensitive military decisions and ‘‘are ontreacherous ground indeed when [they] at-tempt judgments as to [the] wisdom ornecessity’’ of executive military action);Eisentrager, 339 U.S. 763, 70 S.Ct. 936(World War II); Ex parte Quirin, 317U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3 (1942) (WorldWar II); The Prize Cases, 67 U.S. (2Black) 635, 17 L.Ed. 459 (1863) (The CivilWar). But that era is ending. Perhaps itshall end, but how it ends is all important


and I hate to see it pass not through lawbut through judicial ukase. As a matter ofpolicy, one may prefer these suits go for-ward, but as a matter of law, they shouldbe forthwith dismissed.

Under the majority’s view of pertinentprecedent, an officer denied qualified im-munity for a wrongful arrest would beentitled to an immediate appeal of thatdecision, but the weighty questions of warand wartime policy at issue here must taketheir turn at the back of the line. Whatstands to be ‘‘irretrievably lost in the ab-sence of an immediate appeal,’’ Richard-son–Merrell Inc. v. Koller, 472 U.S. 424,431, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985),is whether decisions as to how Americaprotects herself can be scrutinized throughnovel applications of extraterritorial causesof action unauthorized by any bodycharged by our charter with protection ofthis country’s most vital security concerns.In allowing these suits to proceed, themajority has asserted for itself the respon-sibility of all others in our system: theright of Congress to authorize private tortactions challenging combatant activityoverseas; the right of the executive tocontrol wartime operations through itscontractual and criminal law prerogatives;the right of the states not to assent to theextraterritorial application of their law;and the right (though not of constitutionaldimension) of litigants and district courtsto some notion of where this brave newworld will lead. Perhaps this litigation issimply one of those small and tiny stepsthat weaken America only by incrementsand erode our constitutional structure onlyby degree. But I think this understatesthe matter. The touchstone of the collat-eral order doctrine is whether a trial‘‘would imperil a substantial public inter-est’’ or ‘‘some particular value of a highorder.’’ Will, 546 U.S. at 352, 126 S.Ct.952. To some questions the answers

should be so apparent as not to requireiteration, and so it is here.

Judge Niemeyer and Judge Shedd haveindicated that they join this opinion.

NIEMEYER, Circuit Judge, dissenting:

The majority today disregards control-ling Supreme Court precedents and belit-tles the gravity of the issues presented inthese cases, purporting to find comfort inits narrow application of the collateral or-der doctrine. Its effort is regrettablythreadbare.

Military contractors performing work inthe Iraqi war zone under the commandand control of the United States militaryhave invoked our jurisdiction, claiming im-munity from tort suits brought by foreignnationals detained as part of the war ef-fort. As a matter of convenience, the ma-jority ducks making a decision on thisissue of greatest importance to the publicinterest because it feels that discovery andfurther district court proceedings wouldassist it in making a decision. But ingiving that as a reason, the majority failsto follow the Supreme Court’s command inBehrens v. Pelletier, 516 U.S. 299, 116S.Ct. 834, 133 L.Ed.2d 773 (1996), andAshcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.1937, 173 L.Ed.2d 868 (2009), that we hearsuch claims of immunity now, simply onthe basis of the complaint.

It is simply too easy to claim, as doesthe majority, that unresolved facts barconsideration now of the defendants’ im-munity claims. There are always unre-solved facts. Without any explanation, themajority fails to recognize that the undis-puted facts of the plaintiffs’ claims aloneallow a court to rule on the defendants’immunity claims as a matter of law.

It would appear that only the SupremeCourt can now fix our wayward course.

* * *


The plaintiffs in these cases are Iraqicitizens, who were seized in Iraq and de-tained by the U.S. military in Abu Ghraibprison and other military prisons in Iraq.They commenced these actions under statetort law and the Alien Tort Statute(‘‘ATS’’), 28 U.S.C. § 1350, for alleged in-juries sustained from their mistreatmentin prison at the hands of the defendants,who were U.S. military contractors, and ofthe military personnel themselves. Ascontractors hired by the U.S. military andunder its control during the course of thewar effort, the defendants in these twocases have asserted various immunitiesfrom liability and suit. They claim thatthe plaintiffs’ claims are barred by (1)derivative sovereign immunity or deriva-tive absolute immunity, as set forth inMangold v. Analytic Services, Inc., 77F.3d 1442 (4th Cir.1996); (2) immunityfrom tort liability in a war zone, as recog-nized under Saleh v. Titan Corp., 580 F.3d1 (D.C.Cir.2009), cert. denied, ––– U.S.––––, 131 S.Ct. 3055, 180 L.Ed.2d 886(2011); and (3) law-of-war immunity, asrecognized by the Supreme Court in Dowv. Johnson, 100 U.S. 158, 25 L.Ed. 632(1880). On the district courts’ rejection ofthese claims of immunity or their refusalto grant immunity on motions filed underRules 12(b)(1) and 12(b)(6), the defendantsfiled these interlocutory appeals.

The majority refuses to address whetherthe defendants enjoy any of the immuni-ties asserted, holding that the districtcourts’ decisions made on Rule 12(b)(1)and Rule 12(b)(6) motions are not finalappealable orders and that we do not haveappellate jurisdiction. With that decision,the majority subjects the defendants tolitigation procedures, to discovery, andperhaps even to trial, contrary to the deep-rooted policies inherent in these immuni-ties.

I would reject each of the reasons givenby the majority for not deciding the immu-nity issues at this stage of the case andconclude that we undoubtedly have appel-late jurisdiction now to consider them un-der the well-established principles of Co-hen v. Beneficial Industrial Loan Corp.,337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528(1949), Behrens v. Pelletier, 516 U.S. 299,116 S.Ct. 834, 133 L.Ed.2d 773 (1996), andtheir progeny. Cohen authorizes the im-mediate appeal under 28 U.S.C. § 1291 ofimportant and collateral interlocutory or-ders that ‘‘have a final and irreparableeffect on the rights of the parties.’’ 337U.S. at 545, 69 S.Ct. 1221. And Behrensand Iqbal clearly establish that these ap-peals fit comfortably with the Cohen collat-eral order doctrine because the denial ofimmunity ‘‘at the motion-to-dismiss stageof a proceeding is a ‘final decision’ withinthe meaning of § 1291.’’ Iqbal, 556 U.S. at672, 129 S.Ct. 1937 (citing Behrens, 516U.S. at 307, 116 S.Ct. 834).

Each of the majority’s reasons for deny-ing review now is demonstrably flawed.In rejecting the right to appeal the districtcourts’ denials of the derivative absoluteimmunity described in Mangold, the ma-jority ignores well-established precedentthat a district court’s denial of an immuni-ty from suit based on the facts as allegedin the complaint is a final, conclusive orderthat is immediately appealable as a collat-eral order. And in rejecting the right toappeal rulings on Saleh and law-of-warimmunities, the majority rests heavily on adistinction between an immunity that pro-vides ‘‘an insulation from liability’’ and ‘‘animmunity from suit,’’ concluding that theimmunities in this case only protect defen-dants from civil liability. This analysismisses the point, however. The SupremeCourt has found orders denying immunityin its common law sense to be appealableby examining the function performed byparties claiming immunity, the interfer-


ence with that function a denial of immuni-ty would occasion, and the public interest.In reaching its conclusion, the majorityfails to undertake this analysis or recog-nize the substantial government interestunderlying these immunities, an interestwith deep roots in the common law.

If there ever were important, collateraldecisions that would qualify under Cohenas reviewable final decisions, the districtcourts’ denials of immunity in these casesare such decisions. The defendants inthese cases were engaged by the U.S. mili-tary to assist in conducting interrogationsunder the command and control of U.S.military personnel, and the decisions aboutthe scope and nature of these interroga-tions were an integral part of the military’sinterests. Moreover, the military desper-ately needed to receive contractor assis-tance in its interrogations because of asubstantial shortage of personnel. Thus,the interrogations were a major compo-nent of the war effort, designed to gathermilitary intelligence. These strong publicinterests merit our consideration of thefederal common law immunities claimed bythe defendants as protection from any civilsuit and from any potential civil liabilityunder state tort law.

Because we have appellate jurisdictionto address one or all of the forms of immu-nity claimed by the defendants, we would,at the outset, be required to decide oursubject matter jurisdiction. See Steel Co.v. Citizens for a Better Env’t, 523 U.S. 83,94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).When considering our jurisdiction, it isapparent that we, as well as the districtcourts, lack authority under Article III toentertain the actions because they presenta nonjusticiable political question.

Accordingly, I would dismiss these ap-peals and remand them with orders todismiss the cases as nonjusticiable at-tempts to engage the judiciary in questions

reserved by the Constitution for Congressand the Commander–in–Chief to resolve.

I

In 2003, a multi-national force, led bythe United States and Great Britain, in-vaded Iraq. During the course of the war,the U.S. military seized and detained Iraqicitizens suspected of being enemy combat-ants or thought to have value in possessinguseful intelligence regarding the insurgen-cy or other terrorist activities. These de-tainees were imprisoned in Abu Ghraibprison and other prisons throughout Iraq.Although these prisons were operated bythe U.S. Army in an active war zone, ‘‘asevere shortage’’ of military intelligencepersonnel ‘‘prompt[ed] the U.S. govern-ment to contract with private corporationsto provide civilian interrogators and inter-preters.’’ J.A. 408. These contractors in-cluded CACI Premier Technology, Inc., asubsidiary of CACI International, Inc. (col-lectively herein, ‘‘CACI’’) and Titan Corpo-ration, now L–3 Services, Inc. (‘‘L–3’’).CACI and L–3 were required to complywith Department of Defense interrogationpolicies and procedures when conducting‘‘[i]ntelligence interrogations, detainee de-briefings, and tactical questioning’’ of per-sons in the custody of the U.S. military.J.A. 270–71. Secretary of Defense DonaldRumsfeld testified before Congress thatthe linguists and interrogators provided bycontractors at Abu Ghraib were ‘‘responsi-ble to [the military intelligence] personnelwho hire[d] them and ha[d] responsibilityfor supervising them.’’ Hearing of theU.S. Senate Committee on Armed Services44 (May 7, 2004). Acting Secretary of theArmy Les Brownlee also testified that ci-vilian linguists and interrogators ‘‘work[ed]under the supervision of officers or non-commissioned officers in charge of whatev-er team or unit they are on.’’ Id.


The plaintiffs in these two actions areindividuals who were seized and detainedby the military at Abu Ghraib prison andother military-controlled prisons ‘‘during aperiod of armed conflict’’ and ‘‘in connec-tion with hostilities.’’ Second AmendedCompl. (‘‘Complaint’’) ¶ 497 (Al–Quraishi );Second Amended Compl. (‘‘Complaint’’)¶ 142 (Al Shimari ). In their complaints,they allege various acts of assault, sexualassault, humiliation, and inhumane treat-ment at the hands of the defendants, theiremployees, and their co-conspirators in themilitary. They allege that during thecourse of providing interrogation andtranslation services for the U.S. military,employees of the defendant corporationsconspired with each other and with mem-bers of the military to commit torture,assault, battery, and war crimes and thattheir conduct violated the terms of thecontracts that CACI and L–3 had with theU.S. military, the provisions of the U.S.Army field manual, as well as UnitedStates law, state law, and the Geneva Con-vention. Complaint ¶¶ 418, 430, 450, 454,463, 470 (Al–Quraishi ); Complaint ¶¶ 67,88, 94, 98, 107, 108 (Al Shimari ). Inaddition, they allege that the defendantsconspired with each other and with mem-bers of the U.S. military to cover-up themisconduct and hide it from the authori-ties.

The complaints purport to state causesof action under various state-defined tortsand under the Alien Tort Statute, namingas defendants CACI, L–3, and Adel Nakh-la, an individual employee of L–3, andthey demand compensatory damages forphysical, economic, and mental injuries;punitive damages to punish defendants forengaging in human rights abuses and todeter similar behavior in the future; andattorney’s fees. Complaint ¶¶ 2, 468–559,560 (Al–Quraishi ); Complaint ¶¶ 2, 113–204, 205; see also Al Shimari v. CACIPremier 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 dismissall of the claims pursuant to Federal Rulesof Civil Procedure 12(b)(1) and 12(b)(6),alleging that the claims were (1) nonjustici-able because they presented a politicalquestion, relying on Tiffany v. UnitedStates, 931 F.2d 271 (4th Cir.1991); (2)barred by derivative sovereign or absoluteofficial immunity, as set forth in Mangoldv. Analytic Services, Inc., 77 F.3d 1442(4th Cir.1996); (3) preempted and dis-placed by the federal common law govern-ment contractor defense, as set forth inSaleh v. Titan Corp., 580 F.3d 1 (D.C.Cir.2009), cert. denied, ––– U.S. ––––, 131S.Ct. 3055, 180 L.Ed.2d 886 (2011); and (4)barred by the law-of-war immunity recog-nized by the Supreme Court in Dow v.Johnson, 100 U.S. 158, 25 L.Ed. 632(1880). With respect to the state law tortclaims, both district courts below rejectedall of these defenses and denied the mo-tions to dismiss. And with respect to theATS claims, the Al Shimari court dis-missed, concluding that it lacked jurisdic-tion, 657 F.Supp.2d at 725–728, while theAl–Quraishi court denied the motion todismiss, 728 F.Supp.2d at 741–60.

A panel of this court reversed the dis-trict courts’ orders in two opinions re-leased on the same day, concluding thatthe district courts should have dismissedthe claims on the basis of the governmentcontractor defense recognized in Saleh.Al–Quraishi v. L–3 Servs., Inc., 657 F.3d201 (4th Cir.2011); Al Shimari v. CACIInt’l, Inc., 658 F.3d 413 (4th Cir.2011). Onthe plaintiffs’ motions, we granted a re-hearing en banc and consolidated the ap-peals. At our invitation, the United Statesalso participated as an amicus curiae, filinga brief and participating in oral argumenton January 27, 2012. The majority nowdismisses the appeals for a lack of final


appealable orders under 28 U.S.C. § 1291and thus allows the litigation to proceed inthe district courts.

II

Section 1291 of Title 28, authorizing ‘‘ap-peals from all final decisions of the districtcourts of the United States,’’ codifies the‘‘final judgment rule,’’ representing ‘‘Con-gress’ determination since the JudiciaryAct of 1789 that as a general rule ‘appel-late review should be postponed TTT untilafter final judgment has been rendered bythe trial court.’ ’’ Kerr v. U.S. Dist. Ct. forthe N. Dist. of Cal., 426 U.S. 394, 403, 96S.Ct. 2119, 48 L.Ed.2d 725 (1976) (quotingWill v. United States, 389 U.S. 90, 96, 88S.Ct. 269, 19 L.Ed.2d 305 (1967)). Thus,the Supreme Court has emphasized ‘‘thegeneral rule that a party is entitled to asingle appeal, to be deferred until finaljudgment has been entered.’’ Mohawk In-dus. v. Carpenter, ––– U.S. ––––, 130 S.Ct.599, 605, 175 L.Ed.2d 458 (2009) (quotingDigital Equip. Corp. v. Desktop Direct,Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128L.Ed.2d 842 (1994)).

Falling within the category of appealablefinal decisions under § 1291 are certaincollateral orders that are ‘‘other than finaljudgments’’ but ‘‘have a final and irrepara-ble effect on the rights of the parties.’’Cohen v. Beneficial Indus. Loan Corp.,337 U.S. 541, 545, 69 S.Ct. 1221, 93 L.Ed.1528 (1949). Under this ‘‘practical con-struction’’ given to the statutory language‘‘final decisions,’’ ‘‘[t]he authority of theCourts of Appeals to review all final deci-sions of the district courts’’ is construed toconfer appellate jurisdiction over ‘‘ ‘a nar-row class of decisions that do not termi-nate the litigation’ but are sufficiently im-portant and collateral to the merits thatthey should ‘nonetheless be treated as fi-nal.’ ’’ Will v. Hallock, 546 U.S. 345, 347,126 S.Ct. 952, 163 L.Ed.2d 836 (2006)

(quoting Digital Equip., 511 U.S. at 867,114 S.Ct. 1992) (internal citation omitted).Thus, to be a final, appealable order, acollateral order must satisfy three require-ments: (1) it must ‘‘conclusively determinethe disputed question’’; (2) it must ‘‘re-solve an important issue completely sepa-rate from the merits of the action’’; and(3) it must be ‘‘effectively unreviewable onappeal from a final judgment.’’ Johnson v.Jones, 515 U.S. 304, 310, 115 S.Ct. 2151,132 L.Ed.2d 238 (1995) (internal quotationmarks omitted).

The Supreme Court has noted that the‘‘collateral order doctrine’’ is of ‘‘modestscope,’’ Hallock, 546 U.S. at 350, 126 S.Ct.952, and should not be applied ‘‘to swallowthe general rule that a party is entitled toa single appeal,’’ Mohawk Indus., 130 S.Ct.at 605 (quoting Digital Equip., 511 U.S. at868, 114 S.Ct. 1992). But, equally impor-tant, the Court has noted that the doctrineis necessary and appropriate for cases in-volving a ‘‘particular value of high order’’including ‘‘honoring the separation of pow-ers, preserving the efficiency of govern-ment and the initiative of its officials, [or]respecting a State’s dignitary interests.’’Hallock, 546 U.S. at 352–53, 126 S.Ct. 952.In this vein, the Supreme Court and ourcourt have applied the collateral order doc-trine to review interlocutory orders deny-ing defendants’ motions to dismiss on thebasis of numerous asserted immunities.See, e.g., Abney v. United States, 431 U.S.651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)(double jeopardy claim); Helstoski v. Mea-nor, 442 U.S. 500, 99 S.Ct. 2445, 61L.Ed.2d 30 (1979) (Speech and DebateClause immunity); Nixon v. Fitzgerald,457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d349 (1982) (absolute official immunity);Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct.2806, 86 L.Ed.2d 411 (1985) (qualified im-munity); Puerto Rico Aqueduct & SewerAuth. v. Metcalf & Eddy, Inc., 506 U.S.


139, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)(Eleventh Amendment immunity); Osbornv. Haley, 549 U.S. 225, 127 S.Ct. 881, 166L.Ed.2d 819 (2007) (Westfall Act immunitycertification); Republic of Iraq v. Beaty,556 U.S. 848, 129 S.Ct. 2183, 173 L.Ed.2d1193 (2009) (foreign sovereign immunity);Permanent Mission of India to the UnitedNations v. City of New York, 551 U.S. 193,127 S.Ct. 2352, 168 L.Ed.2d 85 (2007)(same); Roberson v. Mullins, 29 F.3d 132(4th Cir.1994) (absolute legislative immuni-ty); Mangold, 77 F.3d 1442 (derivativeimmunity for a contractor).

Some or all of the defendants’ claims ofimmunity in these cases are thus entitledto our review under the collateral orderdoctrine, and I address them seriatim.

A. Derivative Absolute Immunity

Immunity generally protects govern-ment officials from liability based on theiroffice, their function, and the public inter-est. And when litigation is commenced toenforce liability against them, the officialsare, if the public interest is sufficientlystrong, also protected from defending thesuit itself, even when the official is accusedof misconduct. See Nixon, 457 U.S. at752, 102 S.Ct. 2690 (noting that immunityis afforded when it is in the public interestto provide an official ‘‘the maximum abilityto deal fearlessly and impartially withduties of his office’’ (internal quotationmarks omitted)). Of course, each particu-lar immunity is defined by the officialclaiming it, by his function, and by theparticular public interest sought to be pro-tected.

In this case, the defendants claim,among other immunities, derivative abso-lute immunity based on their role in carry-ing out the U.S. military’s mission in theIraq war zone under the ultimate directionand control of the military. As alleged inthe complaints, the defendants were re-

tained by the U.S. military to performinterrogation and translation services inthe interrogation of military detainees inmilitary prisons throughout the Iraqi warzone. Complaint ¶¶ 8, 435, 436, 442 (Al–Quraishi ); Complaint ¶¶ 1, 10, 64 (Al Shi-mari ). Indeed, the complaints assert thatthe defendants were functioning on behalfof the U.S. military and in conspiracy withmilitary personnel ‘‘during a period ofarmed conflict, in connection with hostili-ties.’’ Complaint ¶ 497 (Al–Quraishi);Complaint ¶ 142 (Al Shimari ).

Regardless of whether these facts areultimately proved, they were alleged bythe plaintiffs in their complaints and ad-mitted by the defendants in asserting im-munity. And on the basis of these facts,both district courts below conclusively de-termined that the defendants were not en-titled to the derivative immunity recog-nized in Mangold. In one decision, thedistrict court stated that it ‘‘reject[ed] botharguments’’ made by the defendant that itwas immune under the ‘‘doctrine of deriva-tive absolute official immunity’’ because itcould not ‘‘determine the scope of Defen-dants’ government contract, the amount ofdiscretion it afforded Defendants in deal-ing with detainees, or the costs and bene-fits of recognizing immunity in this casewithout examining a complete record afterdiscovery has taken place.’’ Al Shimari v.CA CI Premier Tech., Inc., 657 F.Supp.2d700, 714 (E.D.Va.2009) (emphasis added).

In the other decision below, the districtcourt concluded that ‘‘relying on the infor-mation in the Complaint, it is clearly tooearly to dismiss Defendants on the basis ofderivative sovereign immunity,’’ explainingthat ‘‘the contract between [the contractor]and the military is not before the Court atthis time,’’ making it impossible to ‘‘deter-min[e] both the scope of the contract andwhether that scope was exceeded.’’ Al–


Quraishi v. Nakhla, 728 F.Supp.2d 702,735 (D.Md.2010).

Thus, both of these opinions take thefacts as alleged by the plaintiffs in theircomplaints as true and conclude that thedefendants were not entitled to derivativeimmunity.

As both the Supreme Court’s precedentsand our precedents clearly establish, whena district court refuses to grant an immu-nity from suit on the basis of the factsalleged in a complaint, the refusals areimmediately appealable. Whether theyare rightly or wrongly decided, we havejurisdiction to review such rulings to pro-tect the defendants from the costs anddistraction of litigation, which underminethe public interest in protecting the gov-ernmental function of war zone interroga-tions. The district courts’ refusals to rec-ognize this immunity can undoubtedly beimmediately appealed under the collateralorder doctrine. See Ashcroft v. Iqbal, 556U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009); Behrens v. Pelletier, 516 U.S. 299,303, 116 S.Ct. 834, 133 L.Ed.2d 773 (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 withthe defendants’ claim of immunity underthe doctrine of derivative absolute immu-nity, nor does it take issue with the princi-ple that this immunity protects defendantsfrom suit. Ante, at 223 (‘‘Mangold immu-nity confers upon those within its aegisthe right not to stand trial’’). Rather, themajority defers any ruling on the immuni-ty because the ‘‘record [was not] suffi-ciently developed through discovery pro-ceedings to accurately assess any claim,including one of immunity.’’ As the ma-jority explains:

The Maryland and Virginia districtcourts each perceived that the validity ofsuch invocations [of immunity] depended

in significant part on whether the con-tractor involved was acting within thescope of its agreement with the UnitedStates. One could hardly begin to an-swer that question without resort to anyand all contracts between the appellantsand the government pertinent to theclaims, defenses, and related matters be-low.

Ante, at 220. Thus, the majority con-cludes that because the district courts de-ferred ruling on derivative immunity untilthe record was more developed, their deci-sions lack finality and fail the require-ments of Hallock, 546 U.S. at 349–50, 126S.Ct. 952, that collateral orders be conclu-sively determined.

The majority fails to recognize, however,that its conclusions are contrary to well-established Supreme Court and FourthCircuit precedents and that the districtcourts’ decisions in refusing to grant im-munity on motions to dismiss based onRules 12(b)(1) and 12(b)(6) are appealablefinal determinations under the collateralorder doctrine.

In Behrens, 516 U.S. at 303, 116 S.Ct.834, the district court had entered an or-der denying, without prejudice, a motion todismiss based on a defense of qualifiedimmunity, giving as its reason the fact thatit was premature because of the lack ofdiscovery. Both the Ninth Circuit in thefirst appeal taken and, eventually the Su-preme Court, recognized that the districtcourt’s order deferring consideration pend-ing discovery was a final determination ofthe immunity defense, subject to immedi-ate appeal under the collateral order doc-trine. See Pelletier v. Fed. Home LoanBank of San Francisco, 968 F.2d 865, 871(9th Cir.1992); Behrens, 516 U.S. at 308,116 S.Ct. 834 (‘‘Whether or not a latersummary judgment motion [on the basis ofimmunity] is granted, denial of a motionto dismiss is conclusive as to this right ’’


(emphasis added)). As the Behrens Courtnoted, at the motion-to-dismiss stage of aproceeding, ‘‘it is the defendant’s conductas alleged in the complaint that is scruti-nized.’’ Behrens, 516 U.S. at 309, 116S.Ct. 834 (emphasis added); see alsoMitchell v. Forsyth, 472 U.S. 511, 529 n. 9,105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)(‘‘[W]e emphasize at this point that theappealable issue is a purely legal one:whether the facts alleged TTT support aclaim of violation of clearly establishedlaw’’ (emphasis added)).

More recently, in Iqbal, the SupremeCourt reaffirmed Behrens and its princi-ple that ‘‘a district court’s order rejectingqualified immunity at the motion-to-dis-miss stage of a proceeding is a ‘final de-cision’ within the meaning of § 1291.’’Iqbal, 556 U.S. at 672, 129 S.Ct. 1937(emphasis added).

Until this decision by the majority, wehave applied the reasoning of Mitchell andBehrens faithfully and consistently, hold-ing that the denial of a motion to dismissbased on an immunity that is properlycharacterized as an immunity from suit,even if on the basis that more discovery isnecessary, is a collateral order over whichwe have jurisdiction under 28 U.S.C.§ 1291. In Jenkins v. Medford, 119 F.3d1156, 1159 (4th Cir.1997) (en banc), wedeclared that we had jurisdiction to reviewa district court’s denial of a motion todismiss based on qualified immunity eventhough the district court had refused torule on immunity at that stage because ananswer had not yet been filed. Withoutqualification, we stated that ‘‘[w]hen a dis-trict court denies a motion to dismiss thatis based on qualified immunity TTT theaction is a final order reviewable by thiscourt.’’ Id.; see also Winfield v. Bass, 106F.3d 525, 530 (4th Cir.1997) (en banc)(finding jurisdiction to review an immunityclaim ‘‘accepting the facts as the district

court viewed them,’’ even though factualissues remained).

Again, in McVey, 157 F.3d at 275, weapplied Behrens and concluded that wehad jurisdiction over the denial of qualifiedimmunity even though we ‘‘recognized thatthe district court’s order essentially defer-ring a ruling on qualified immunity wouldappear, at first blush, to amount to a rou-tine procedural order that is generally notappealable.’’ As we reasoned:

[I]n rejecting the immunity defense ‘‘atthis early stage,’’ the district court nec-essarily subjected the commissioners tothe burden of further trial proceduresand discovery, perhaps unnecessarily.[The district court’s] order implicitlyruled against the commissioners on TTT

legal questionsTTTT These questions donot raise factual questions concerningthe defendants’ involvement, whichwould not be appealableTTTT On the con-trary, they are answered with the factsof the complaint assumed to be true as amatter of law. They are therefore thevery questions that Mitchell held wereappealable.

Id. at 276 (emphasis added) (internal cita-tions omitted).

Although the majority acknowledgesthese precedents, it attempts to distinguishthem by noting that Behrens ‘‘confers ju-risdiction of these appeals only if the rec-ord at the dismissal stage can be construedto present a pure issue of law.’’ Ante, at222. It finds that in these cases ‘‘thosefacts that may have been tentatively desig-nated as outcome-determinative are yetsubject to genuine dispute, that is, a rea-sonable factfinder could conclude in favorof either the plaintiffs or the defendants,’’and thus we lack jurisdiction because the‘‘courts’ immunity rulings below turn[ed]on genuineness.’’ Ante, at 223. The ma-jority’s new ‘‘genuineness’’ addition to thecollateral order doctrine, however, finds no


support in the Supreme Court’s discussionof collateral order immunity appeals. Tothe extent the majority is simply statingthe well-established rule that a collateralorder immunity appeal must present apurely legal question, there can be no de-bate that the appeals in the cases beforeus present just such a question. Mitchell,Behrens, and Iqbal establish without ques-tion that these appeals present a purelylegal question because we are asked todecide whether the defendants are entitledto derivative immunity on the basis of thefacts as alleged by the plaintiffs in theircomplaints. The possibility that a factfin-der might construe these facts in favor ofthe defendants at a later time does not, bysome heretofore unknown legal device,create a factual dispute that deprives us ofjurisdiction at the motion-to-dismiss stage.As a matter of logical necessity, there canbe no genuine issue of material fact whenwe are reviewing only the facts as allegedby the plaintiff in the complaint. Themajority simply ignores Mitchell ’s state-ment that ‘‘the appealable issue is a purelylegal one: whether the facts alleged ’’ sup-port a claim of immunity. 472 U.S. at 528n. 9, 105 S.Ct. 2806.

The majority’s claim that it could onlydiscern a ‘‘pure issue of law’’ if it ‘‘were ofthe opinion, as the dissenters evidentlyare, that persons similarly situated to theappellants are inevitably and invariablyimmune from suit,’’ ante, at 222, demon-strates the fundamental error of its ap-proach. If the majority believes that thedefendants cannot establish their claims toimmunity from suit, accepting as true thefacts in the complaint, then it should denythe derivative immunity defense on themerits and allow the district courts toproceed and develop a fuller factual rec-ord. Indeed, Behrens considers this verypossibility, allowing the defendants to pur-sue a second immunity appeal after the

denial of summary judgment even if theyhave already unsuccessfully appealed thedistrict court’s denial of their motion todismiss. 516 U.S. at 305–08, 116 S.Ct. 834.Surprisingly, the majority admits that wehave jurisdiction to review whether ‘‘factsthat are undisputed or viewed in a particu-lar light are material to the immunity cal-culus,’’ ante, at 222, but then mysteriouslyconcludes that we cannot determinewhether these same facts establish immu-nity. Thus, under the majority’s novelapproach to the collateral order doctrine,we have jurisdiction to review whetherundisputed facts are ‘‘material’’ to a ques-tion of immunity, but we have no jurisdic-tion to review the immunity determinationitself. Such a rule finds absolutely nolegal support.

Whether it is to avoid the difficulty pre-sented by the political question doctrine orto evade the other difficult questions themerits of these important cases present,the majority chooses to decimate existingcollateral order jurisprudence by finding a‘‘genuine’’ dispute of material fact in a casein which we are asked to review districtcourt decisions denying derivative immuni-ty based only on undisputed facts, thosealleged in the complaint. See McVey, 157F.3d at 276 (‘‘These questions do not raisefactual questions concerning the defen-dants’ involvementTTTT On the contrary,they are answered with the facts of thecomplaint assumed to be true as a matterof law. They are therefore the very ques-tions that Mitchell held were appealable’’).The majority’s approach is manifestly con-trary to the Supreme Court’s collateralorder immunity jurisprudence.

Rather than following these bindingprecedents of the Supreme Court and ourcourt, the majority chooses to rely on adistinguishable Fifth Circuit decision thatrefused to consider a claim of immunitybecause it was neither ‘‘substantial’’ nor


‘‘colorable.’’ See Martin v. Halliburton,618 F.3d 476, 484 (5th Cir.2010). TheMartin court, however, did not decide theissue before us today. In that case, regu-lations governing the contractor explicitlystated that ‘‘[c]ontractors will not be usedto perform inherently governmental func-tions’’ and ‘‘expressly preclude[d] Defen-dant [contractors] from engaging in discre-tionary conduct,’’ which was a prerequisitefor finding derivative immunity. See id. at484. Thus, the language of the regulationsthemselves made the defendants’ conten-tions that they had engaged in the per-formance of governmental functions frivo-lous and unsubstantial.

Under our decision in Mangold and itsprogeny, there can be no serious argumentthat, based on the complaint, the defen-dants in these cases failed to present asubstantial basis for the immunity. SeeMangold, 77 F.3d at 1442 (holding thatgovernment functions performed by pri-vate contractors are protected by immuni-ty both for the government and the con-tractor); see also Murray v. NorthropGrumman Info. Tech., Inc., 444 F.3d 169,175 (2d Cir.2006) (government contractorabsolutely immune from tort liability forperforming contracted-for governmentalfunction, citing Mangold ); Pani v. Em-pire Blue Cross Blue Shield, 152 F.3d 67,71–73 (2d Cir.1998) (same); Midland Psy-chiatric Assocs., Inc. v. United States, 145F.3d 1000, 1005 (8th Cir.1998) (commonlaw official immunity barred tort suitagainst Medicare insurer). This immunityprotects contractors from suit where suchan immunity is necessary to protect a dis-cretionary government function and thebenefits of immunity outweigh its costs.For example, in Mangold, we held that‘‘the interest in efficient government’’ jus-tified granting a private contractor immu-nity for statements made during an official

investigation of government procurementpractices. 77 F.3d at 1447–48.

And recently, the Supreme Court hasreaffirmed the need to protect those whoperform government functions with immu-nity regardless of whether they are publicemployees, such as military officers, orprivate individuals retained to perform thesame function. See Filarsky v. Delia, –––U.S. ––––, 132 S.Ct. 1657, 1663, 182L.Ed.2d 662 (2012) (‘‘[T]he common lawdid not draw a distinction between publicservants and private individuals engagedin public service in according protection tothose carrying out government responsibil-ities’’).

But the majority never disputes this, noreven discusses why the allegations in thecomplaint present only a frivolous and un-substantial claim to derivative immunity.Instead, it frames the dispositive questionas one of finality. In so doing, the majori-ty ignores the fundamental and well-estab-lished principle that a district court’s deni-al of a motion to dismiss based on animmunity from suit is a final, immediatelyappealable collateral order. Whether dis-covery could help make the issue moreclear or whether the district courts wanteda fuller record before ruling on the meritsof immunity is irrelevant. The defendantsclaim entitlement to be protected from thelitigation process, and the court’s refusalto grant the immunity denied them thatprotection and was therefore an appealabledecision under Mitchell, Behrens, Iqbal,Jenkins, Winfield, and McVey. It is mostregrettable that the majority so readilytramples on these precedents, which clear-ly provide us with appellate jurisdiction atthis stage of the proceedings to considerthe substantial claims of immunity assert-ed by the defendants on the basis of thefacts alleged in the complaint.1

1. The majority also inexplicably dismisses L– 3’s arguments relating to the Alien Tort Stat-


B. Combatant Activities Immunityunder Saleh

The defendants also asserted an immu-nity from suit based on the combatantactivities exception to the Federal TortClaims Act and the D.C. Circuit’s applica-tion of that immunity in Saleh v. TitanCorp., 580 F.3d 1 (D.C.Cir.2009), cert. de-nied, ––– U.S. ––––, 131 S.Ct. 3055, 180L.Ed.2d 886 (2011). This immunity, ap-plied to military contractors, is based onthe United States’ sovereign immunity forclaims arising out of combatant activitiesof the military during time of war. See 28U.S.C. § 2680(j).

Again, in response to the allegations ofthe plaintiffs’ complaints, the defendantsclaimed that their immunity is based onthe United States’ interests, as embodiedin the combatant activities exception andas applied in Saleh. Under this immunity,when claims arise out of federal combatantactivities, the federal interests preempt theapplication of state tort law to its contrac-tors and then replace state tort law withfederal common law, which recognizes animmunity for claims against contractorsarising out of combatant activities. TheUnited States’ interest in its contractors’performance in the course of combatant

ute in a footnote, claiming that they deserveno different analysis than do the state lawclaims. Ante, at 223–24 n. 19. But in soconcluding, the majority fails to recognizethat plaintiffs’ Alien Tort Statute claims, ofjurisdictional necessity, include allegationsthat the defendants’ allegedly abusive conductwas the conduct of the United States andtherefore any claim of derivative immunitywould have to be substantial as a matter oflaw.

Although the district court in Al Shimaridismissed the plaintiffs’ claims under theATS, the district court in Al–Quraishi failedto dismiss the ATS claims against L–3 andits employee. L–3 contends on appeal thatthe denial of its motion to dismiss the ATSclaims on account of derivative immunity,among other defenses, was an error. L–3’sclaim to derivative absolute immunity in theATS context is thus undeniably ‘‘substantial.’’In Sanchez–Espinoza v. Reagan, 770 F.2d202 (D.C.Cir.1985), plaintiffs alleged that de-fendants had violated the law of nations byengaging in ‘‘summary execution, murder,abduction, torture, rape, wounding, and thedestruction of private property and public fa-cilities,’’ as part of a conspiracy arising outof the U.S. government’s actions in Nicara-gua. Id. at 205. In a unanimous opinionauthored by then-Judge Scalia and joined bythen-Judge Ginsburg, the D.C. Circuit foundthat ‘‘[i]t would make a mockery of the doc-trine of sovereign immunity’’ to permit theATS claims to proceed based on ‘‘actionsthat are, concededly and as a jurisdictionalnecessity, official actions of the UnitedStates.’’ Id. at 207. Like the allegations in

Sanchez–Espinoza, plaintiffs must, to main-

tain their ATS claims, allege that the actions

of the defendants were actions of the United

States as a jurisdictional necessity. See Kad-ic v. Karadzic, 70 F.3d 232, 243 (2d Cir.

1995) (‘‘[T]orture and summary execution

TTT 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 internation-

al norms only to the extent they were com-

mitted by combatants or state actors, seeSosa v. Alvarez–Machain, 542 U.S. 692, 731–

38, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004);

Tel–Oren v. Libyan Arab Republic, 726 F.2d

774, 791–95 (D.C.Cir.1984) (Edwards, J.,

concurring).

Thus, the defendants’ claims to derivative

immunity as to the ATS claims in Al–Quraishiare obviously substantial because plaintiffs

must allege as a jurisdictional necessity either

state action or that the defendants were ‘‘par-

ties’’ to the armed conflict in Iraq. Both alle-

gations add further weight to the contention

that the defendants were performing a state

function and thus entitled to the same immu-

nities afforded public officials performing that

function. See Filarsky, 132 S.Ct. at 1663. I

therefore fail to understand how these defens-

es can be dismissed as so insubstantial and

frivolous that we lack jurisdiction even to

entertain them.


activities grows out of the uniquely federalinterest in the unencumbered operation ofmilitary personnel and in the ‘‘eliminationof tort from the battlefield, both topreempt state or foreign regulation of fed-eral wartime conduct and to free militarycommanders from the doubts and uncer-tainty inherent in potential subjection tocivil suit.’’ Saleh, 580 F.3d at 7 (emphasisadded). ‘‘[T]he policies of the combatantactivities exception are equally implicatedwhether the alleged tortfeasor is a soldieror a contractor engaging in combatant ac-tivities at the behest of the military andunder the military’s control.’’ Id. The poli-cy to protect these interests can only befurthered and preserved if the defenseprotects against potential lawsuitsbrought under any civilian tort law, notsimply against ultimate liability.

The district courts denied the claimedimmunities. The court in Al–Quraishi re-fused to recognize the unique federal inter-ests embodied in the combatant activitiesexception. Al–Quraishi, 728 F.Supp.2d at738–39. And the court in Al Shimari sim-ply rejected the defense as to these defen-dants in a conclusory manner. Al Shi-mari, 657 F.Supp.2d at 725. Both courtsthus held that the defendants were entitledto neither the displacement of state tortlaw nor the application of federal commonlaw immunizing them from suit.

The majority now refuses also to reviewthese district court orders, thus denyingthe defendants the combatant activitiesimmunity. It does so mainly by relyingon an unexplored labeling problem. Itstates conclusorily, ‘‘Boyle preemption(and, thus, Saleh preemption) is, ipso fac-to, not immunity.’’ Ante, at 217. Andagain, repeating its labeling reliance, itdeclares, ‘‘Saleh preemption falls squarelyon the side of being a defense to liabilityand not an immunity from suit.’’ Ante, at217. The only analysis the majority ac-

cords the issue is an observation that im-munity ‘‘derives from an explicit statutoryor constructive guarantee that trial willnot occur’’ (internal quotation marks omit-ted), and that Boyle, ‘‘from which Salehpreemption is derived, [did not rely] onany such explicit guarantee.’’ Ante, at217. The majority’s opinion, however, nei-ther considers what Saleh actually held inorder to prove its assertion, nor analyzesthe text of the combatant activities excep-tion and the unique federal interests itembodies. Moreover, it assumes, withoutanalysis, that Boyle and Saleh are identi-cal for purposes of its collateral orderanalysis.

Surely our jurisdiction to consider thedistrict courts’ orders cannot dependwholly on labels such as ‘‘preemption’’ and‘‘immunity.’’ Nonetheless, if a vote on la-bels were critical, the majority would havelittle support, as virtually every court thathas considered the government contractordefense set forth in Boyle takes it as atwo-step defense leading to immunity.Under the first step, the court preemptsstate tort law, and under the second, itrecognizes the federal common law pro-viding immunity to such contractors. SeeIn re Katrina Canal Breaches, 620 F.3d455, 457 (5th Cir.2010) (characterizing thedefense recognized in Boyle as ‘‘govern-ment contractor immunity’’); In re WorldTrade Ctr. Disaster Site Litig., 521 F.3d169, 196 (2d Cir.2008) (‘‘In Boyle, theCourt refined the requirements for a typeof derivative immunity for governmentmilitary 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 ‘preemp-tion’ in determining whether federal lawshould provide government contractorswith immunity from certain state-lawproduct liability actions’’ (emphasis add-ed)); Winters v. Diamond Shamrock


Chem. Co., 149 F.3d 387, 400 (5th Cir.1998) (‘‘The Supreme Court set out thetest for immunity under the governmentcontractor defense in Boyle ’’ (emphasisadded)); Oliver v. Oshkosh Truck Corp.,96 F.3d 992, 997 (7th Cir.1996) (‘‘The gov-ernment contractor defense is derivedfrom the government’s immunity fromsuit when the performance of a discretion-ary function is at issue’’ (emphasis add-ed)); Mangold, 77 F.3d at 1448 (‘‘Extend-ing immunity to private contractors toprotect an important government interestis not novel. See, e.g., Boyle[ ]’’ (emphasisadded)); Tate v. Boeing Helicopters, 55F.3d 1150, 1153 (6th Cir.1995) (‘‘The BoyleCourt held that, under certain circum-stances, government contractors are im-mune from state tort liability’’ (emphasisadded)); Carley v. Wheeled Coach, 991F.2d 1117, 1120 (3d Cir.1993) (noting thatthe rationale that ‘‘underlies the moderngovernment contractor defense’’ is that‘‘[a] private contractor TTT should, in somecircumstances, share the sovereign immu-nity of the United States’’ (emphasis add-ed)); Harduvel v. Gen. Dynamics Corp.,878 F.2d 1311, 1316 (11th Cir.1989) (‘‘Inthe military context, this [governmentcontractor] immunity serves the furtherimportant purpose of shielding sensitivemilitary decisions from scrutiny by the ju-diciary, the branch of government leastcompetent to review them’’ (emphasisadded)).

Rather than counting labeling votes,however, we must, in determining our ap-pellate jurisdiction over the defendants’claim of Saleh immunity, inquire whetherthe assertion of Saleh immunity falls with-in the category of collateral orders that theSupreme Court has held appealable underthe collateral order doctrine.

We begin by looking to the methodologyin Boyle, which was employed by Saleh toidentify the unique federal interests in

these cases. In Boyle, the Supreme Courtreferred to the ‘‘displacement’’ of state lawwith federal common law, 487 U.S. at 505,507, 512, 108 S.Ct. 2510 (emphasis added),and specifically held that ‘‘a few areas,involving ‘uniquely federal interests,’ areso committed by the Constitution and lawsof the United States to federal control thatstate law is pre-empted and replaced,where necessary, by federal law of a con-tent prescribed (absent explicit statutorydirective) by the courts—so called ‘federalcommon law.’ ’’ Id. at 504, 108 S.Ct. 2510(emphasis added) (internal citation omit-ted). Thus, it is the content of this federalcommon law that defines the rights anddefenses of the government contractor de-fendant, not the preemption leading to ap-plication of the federal common law.

In Boyle, the father of a deceased heli-copter pilot sued the helicopter’s manufac-turer, a private government contractor,under Virginia tort law, alleging that thehelicopter’s escape hatch had been defec-tively designed because it opened out rath-er than in. Id. at 502–03, 108 S.Ct. 2510.While the pilot survived the impact of thehelicopter’s crash off the coast of Virginia,he was unable to escape because the waterpressure prevented the escape hatch fromopening. The Court concluded that ‘‘statelaw which holds Government contractorsliable for design defects in military equip-ment does in some circumstances presenta ‘significant conflict’ with federal policyand must be displaced.’’ Id. at 512, 108S.Ct. 2510 (emphasis added).

The Boyle Court reached its conclusionthrough a two-step process. First, it rec-ognized that the subject matter of the suitimplicated ‘‘uniquely federal interests,’’ be-cause it involved the ‘‘performance of fed-eral procurement contracts,’’ which ‘‘bor-der[ed] upon two areas that [the Court]ha[d] found to involve such ‘uniquely feder-al interests’ ’’: (1) the rights and obli-


gations of the United States under its con-tracts, and (2) the ‘‘civil liability of federalofficials for actions taken in the course oftheir duty.’’ Id. at 504–06, 108 S.Ct. 2510.In the second step, after recognizing theseinterests, the Court asked whether a ‘‘sig-nificant conflict exist[ed] between an iden-tifiable federal policy or interest and theoperation of state law,’’ and whether ‘‘theapplication of state law would frustratespecific objectives of federal legislation.’’Id. at 507, 108 S.Ct. 2510 (internal quota-tion marks and citation omitted). TheCourt explained that ‘‘[t]he conflict withfederal policy need not be as sharp tojustify preemption’’ when a suit involves anarea of ‘‘unique federal concern,’’ but none-theless ‘‘conflict there must be.’’ Id. at507–08, 108 S.Ct. 2510. The Court thenfound this conflict in the discretionaryfunction exception to the Federal TortClaims Act (‘‘FTCA’’), noting that it ‘‘dem-onstrates the potential for, and suggeststhe outlines of, ‘significant conflict’ be-tween federal interests and state law inthe context of Government procurement.’’Id. at 511, 108 S.Ct. 2510.

The Boyle case thus works the displace-ment of state law, through preemption,with federal common law and then de-scribes the content of the federal commonlaw government contractor defense, look-ing for that purpose to the discretionaryfunction exception in the FTCA.

This case, however, does not involve thegovernment contractor defense recognizedin Boyle, but rather a defense based on thecombatant activities exception, a common

law immunity recognized in the FTCA.See 28 U.S.C. § 2680(j) (retaining sover-eign immunity for claims ‘‘arising out ofthe combatant activities of the military ornaval forces, or the Coast Guard duringtime of war’’); see also Filarsky, 132 S.Ct.at 1665 (‘‘[W]e ‘proceed[ ] on the assump-tion that common-law principles of TTT im-munity were incorporated into our judicialsystem and that they should not be abro-gated absent clear legislative intent to doso’ ’’ (first alteration in original) (quotingPulliam v. Allen, 466 U.S. 522, 529, 104S.Ct. 1970, 80 L.Ed.2d 565 (1984))). Thedefendants in this case asked the districtcourts to apply the methodology of Boyle,as the court did in Saleh, in order torecognize the federal common law defensebased on the combatant activities excep-tion, which is animated by different inter-ests than were at issue in Boyle. SeeSaleh, 580 F.3d at 6 (‘‘The crucial point isthat the [Boyle ] court looked to the FTCAexceptions to the waiver of sovereign im-munity in order to determine that the con-flict was significant and to measure theboundaries of the conflict’’ (emphasis add-ed)).2

Saleh indeed did apply the Boyle meth-odology to circumstances identical to thosebefore us. Thus the Saleh court concludedthat Congress intended the combatant ac-tivities exception to ‘‘eliminat[e] TTT tortfrom the battlefield, both to preempt stateor foreign regulation of federal wartimeconduct and to free military commandersfrom the doubts and uncertainty inherentin potential subjection to civil suit.’’ Sa-

2. The majority’s assertion that we are ‘‘re-packaging for the sake of convenience thepreemption defense derived from Boyle as‘combatant activities immunity,’ ’’ ante, at218, ignores the fact that Boyle and Saleh,though they both apply preemption, then pro-ceed to apply different principles of federalcommon law to the issue at hand. Thus, notonly are we not applying the common law

applied in Boyle, we are also not repackaging

anything from Boyle. Rather, we are analyz-

ing 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.


leh, 580 F.3d at 7 (emphasis added). TheD.C. Circuit in Saleh explained:

In the context of the combatant activi-ties exception, the relevant question isnot so much whether the substance ofthe federal duty is inconsistent with ahypothetical duty imposed by the Stateor foreign sovereign. Rather, it is theimposition per se of the state or foreigntort law that conflicts with the FTCA’spolicy of eliminating tort concepts fromthe battlefield. The very purposes oftort law are in conflict with the pursuitof warfare. Thus, the instant case pres-ents us with a more general conflictpreemption, to coin a term, ‘‘battle-fieldpreemption’’: the federal governmentoccupies the field when it comes to war-fare, and its interest in combat is always‘‘precisely contrary’’ to the imposition ofa non-federal tort duty.

Saleh, 580 F.3d at 7. After displacingstate tort law in favor of the unique federalinterests at stake, the Saleh court dis-missed the complaints based on sovereignimmunity.

Thus, to reject the defendants’ claim ofsovereign immunity under Saleh amountsto subjecting government contractors en-gaged in the war effort of the military tosuits, thereby interfering with the verycombatant activities intended to be pro-tected from suit by federal statutory andcommon law. The government’s uniqueinterest can only be protected and pre-served if the Saleh defense to a potentialsuit is preserved by our review at theoutset of litigation. This is because theSaleh immunity serves the interests offreeing officers engaged in combatant ac-tivities from ‘‘the doubts and uncertaintyinherent in potential subjection to civilsuit.’’ Saleh, 580 F.3d at 7 (emphasis add-ed).

Although the legislative history of thecombatant activities exception is ‘‘singular-

ly barren,’’ courts have long recognizedthat the exception serves to exempt activi-ties that ‘‘by their very nature should befree from the hindrance of a possible dam-age suit.’’ Johnson v. United States, 170F.2d 767, 769 (9th Cir.1948) (emphasisadded). In recognizing the interests thatmade qualified immunity a protectionagainst standing trial, the Supreme Courthas similarly emphasized that ‘‘the publicinterest may be better served by actiontaken ‘with independence and without fearof consequences.’ ’’ Mitchell, 472 U.S. at525, 105 S.Ct. 2806 (quoting Harlow v.Fitzgerald, 457 U.S. 800, 819, 102 S.Ct.2727, 73 L.Ed.2d 396 (1982)). These ‘‘con-sequences’’ were ‘‘not limited to liabilityfor money damages’’ but also included‘‘ ‘the general costs of subjecting officialsto the risks of trial-distraction of officialsfrom their governmental duties, inhibitionof discretionary action, and deterrence ofable people from public service.’ ’’ Id. at526, 105 S.Ct. 2806 (quoting Harlow, 457U.S. at 816, 102 S.Ct. 2727).

Moreover, in Filarsky, the SupremeCourt relied on the same public interest inholding that common law immunity pro-tects not only government employees butalso private contractors when performingthe government’s work:

The public interest in ensuring perform-ance of government duties free from thedistractions that can accompany evenroutine lawsuits is also implicated whenindividuals other than permanent gov-ernment employees discharge theseduties. Not only will such individuals’performance of any ongoing governmentresponsibilities suffer from the distrac-tion of lawsuits, but such distractionswill also often affect any public employ-ees with whom they work by embroilingthose employees in litigation.

Filarsky, 132 S.Ct. at 1666 (citation omit-ted).


The same concerns recognized in Mitch-ell and Filarsky animate the combatantactivities exception here, ensuring that en-tities engaged in actions arising out ofcombatant activities do not suffer ‘‘distrac-tion,’’ are not slowed by ‘‘inhibition,’’ andare willing to serve our country. As Salehnoted, ‘‘the federal government occupiesthe field when it comes to warfare, and itsinterest in combat is always ‘precisely con-trary’ to the imposition of a non-federaltort duty.’’ 580 F.3d at 7; see also Koohiv. United States, 976 F.2d 1328, 1337 (9thCir.1992) (‘‘[O]ne purpose of the combatantactivities exception is to recognize thatduring wartime encounters no duty of rea-sonable care is owed to those againstwhom force is directed as a result of au-thorized military action’’).

In short, the unique federal interest em-bodied in the combatant activities excep-tion to the FTCA is an interest in freeingmilitary actors from the distraction, inhibi-tion, and fear that the imposition of statetort law by means of a potential civil suitentails. It makes no difference whetherthe military actors are low-level soldiers,commanders, or military contractors. TheSupreme Court has made clear that immu-nity attaches to the function being per-formed, and private actors who are hiredby the government to perform public func-tions are entitled to the same immunitiesto which public officials performing thoseduties would be entitled. See Filarsky,132 S.Ct. at 1661–66. The unanimous Su-preme Court in Filarsky emphasized thatimposing liability on private individualsperforming public functions will result in‘‘unwarranted timidity’’ on the part of‘‘those engaged in the public’s business,’’calling this concern ‘‘the most importantspecial government immunity-producingconcern.’’ Id. at 1665 (internal quotationmarks omitted). It recognized the need to‘‘afford[ ] immunity not only to public em-ployees but also to others acting on behalf

of the government’’ because ‘‘often whenthere is a particular need for specializedknowledge or expertise TTT the govern-ment must look outside its permanentwork force to secure the services of privateindividuals.’’ Id. at 1665–66.

This case presents just such an example.The military had a need for specializedlanguage and interrogation skills and hiredprivate individuals to work with the mili-tary in performing its public function. Be-cause potential suit and liability would re-sult in ‘‘unwarranted timidity’’ on the partof these government contractors, theymust share the common law immunity en-joyed by the military and retained by theFTCA combatant activities exception.These interests underlying this immunityare only protected if the immunity is notonly an immunity from liability, but also animmunity from suit.

Thus, the denial of a combatant activi-ties defense will be effectively unreview-able at final judgment because the defen-dants will no longer be able to vindicatetheir right to avoid the burdens and dis-tractions of trial. Military contractors willhave to undertake future actions ‘‘arisingout of combatant activities’’ with the un-derstanding that they are presumptivelysubject to civil tort law and must abide bystate law duties of care in the middle of aforeign war zone. The result will be ex-actly what the Supreme Court cautionedagainst in Filarsky: ‘‘those working along-side [government employees] could be leftholding the bag—facing full liability foractions taken in conjunction with govern-ment employees who enjoy immunity forthe same activity.’’ 132 S.Ct. at 1666.The governmental interests in uninhibitedmilitary action and in the attraction oftalented candidates, both public and pri-vate, animate the combatant activities ex-ception, and these interests are far broad-er than the limited interests recognized by


the majority, which focuses only on ‘‘sensi-tive military issues.’’ Ante, at 219. Sucha narrow mischaracterization of the federalinterest ignores the broad language of theexception (protecting actions ‘‘arising outof combatant activities’’) and finds no sup-port in federal common law.

At bottom, it is readily apparent that thedistrict courts’ orders denying Saleh im-munity fall comfortably within the collater-al order doctrine. As the Supreme Courthas said in summarizing its collateral orderprecedents:

In each case, some particular value of ahigh order was marshaled in support ofthe interest in avoiding trial: honoringthe separation of powers, preserving theefficiency of government and the initia-tive of its officials, respecting a State’sdignitary interest, and mitigating thegovernment’s advantage over the indi-vidual. That is, it is not mere avoidanceof a trial, but avoidance of a trial thatwould imperil a substantial public inter-est, that counts when asking whether anorder is ‘‘effectively’’ unreviewable if re-view is to be left until later.

Will v. Hallock, 546 U.S. 345, 352–53, 126S.Ct. 952, 163 L.Ed.2d 836 (2006) (empha-sis added). So it is in these cases.

C. Law–of–War Immunity

Finally, CACI and L–3 claimed protec-tion from suit and from the application ofIraqi law under law-of-war immunity, as

recognized in the Supreme Court’s deci-sion in Dow v. Johnson, 100 U.S. 158, 25L.Ed. 632 (1879), because they were partof the occupying force in the middle of anongoing war.3

The plaintiffs agree that the districtcourts conclusively decided that defen-dants were not entitled to law-of-war im-munity and that the issue is collateral tothe merits. They contend, however, thatthis immunity is not an immunity from suitbut a doctrine of jurisdiction, deprivingcourts in an occupied territory of jurisdic-tion over the occupying forces.

In its amicus brief, the United Statesnoted, without explanation, that ‘‘Dow andthe policies it reflects may well inform theultimate disposition of these claims,’’ butthe United States was ‘‘not prepared TTT

to conclude that the contractor defendantshave demonstrated a right to immediatereview of their contentions based on Dowalone.’’

The majority again resorts to labels toresolve this immunity issue, noting thatDow does not use the word ‘‘immunity.’’The fact that Dow does not use the specificterm ‘‘immunity,’’ however, has little rele-vance to the question of whether a rulingdenying application of its holding is imme-diately appealable. Dow characterized thedefense at issue as an ‘‘exemption fromTTT civil proceedings,’’ 4 100 U.S. at 165

3. In Al–Quraishi, the district court deter-

mined that Iraqi law would apply to the ac-

tion under Maryland’s adherence to the lexloci delicti rule in analyzing choice of law in

tort actions. 728 F.Supp.2d at 761–62. In AlShimari, 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 delictirule 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 JudgeWilkinson notes, however, the plaintiffs in AlShimari contend that Virginia law should ap-ply.

4. Compare this language with the SupremeCourt’s more recent characterization thatqualified immunity ‘‘shields governmentagents from liability for civil damages,’’ Beh-rens, 516 U.S. at 305, 116 S.Ct. 834 (internalquotation marks and alterations omitted) (em-phasis added), or that it serves as a ‘‘protec-tion to shield [defendants] from undue inter-


(emphasis added), which, as was customaryto find at the time, led to a lack of ‘‘juris-diction’’ of the court over the defendant,id. at 170. In The Schooner Exchange v.McFaddon, 11 U.S. (7 Cranch) 116, 3L.Ed. 287 (1812), which was relied on byDow, the Court similarly used the lan-guage of ‘‘jurisdiction,’’ and this phrasewas later interpreted by the SupremeCourt to stand for what we call, in today’sparlance, foreign sovereign immunity. SeeVerlinden B.V. v. Cent. Bank of Nigeria,461 U.S. 480, 486, 103 S.Ct. 1962, 76L.Ed.2d 81 (1983). Further, subsequentcases, including Supreme Court decisions,recognize that the Dow protection is a typeof immunity. See Underhill v. Hernandez,168 U.S. 250, 252–53, 18 S.Ct. 83, 42 L.Ed.456 (1897); Moyer v. Peabody, 212 U.S. 78,85–86, 29 S.Ct. 235, 53 L.Ed. 410 (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 de-fense recognized in Dow so as to be able todetermine whether its rejection is immedi-ately appealable.

The majority finds it ‘‘curious to imaginethe nineteenth century [Supreme] Courtregarding its decisions in the Civil Warcases as having durable precedential ef-fect,’’ citing no authority to reach thatconclusion, and implies they may not ‘‘pos-sess continued relevance beyond their im-mediate context.’’ Ante, at 217. By con-trast, at oral argument, the United Statespostulated that the ‘‘principles of Dow mayhave further life in other doctrines,’’ andspecifically argued that these principlesmay be ‘‘given effect’’ by courts in theirrecognition of the federal common law de-

fense identified in Saleh based on the com-batant activities exception. Dow and othercases of its era were decided as a matter offederal and international common law at atime when the Supreme Court recognizedthe validity of such common law. SeeFord v. Surget, 97 U.S. 594, 613, 24 L.Ed.1018 (1878) (finding a Mississippi civilianimmune from civil suit for destroying an-other citizen’s cotton in support of theoccupying Confederate army based on the‘‘common laws of war—those maxims ofhumanity, moderation, and justice’’ and the‘‘law of nations’’).

Although the invocation of federal com-mon law was restricted severely with theSupreme Court’s decision in Erie RailroadCo. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,82 L.Ed. 1188 (1938), the Court’s decisionin Boyle nonetheless explicitly instructscourts to displace state tort law with feder-al common law when the imposition ofstate tort law would conflict with uniquelyfederal interests. The immunity recog-nized in Dow falls within the same body offederal common law that displaces statelaw under the methodology employed byBoyle. And ‘‘common-law principles ofTTT immunity were incorporated into ourjudicial system and TTT should not be ab-rogated absent clear legislative intent todo so.’’ Filarsky, 132 S.Ct. at 1665 (inter-nal quotation marks omitted). For thisreason, the immunity claimed by the de-fendants under Dow and the immunityclaimed under the common law defensebased on the combatant activities excep-tion are simply two variations of the sameprinciple; they are both a common lawimmunity from suit. And Boyle provides

ference with their duties and from potentiallydisabling threats of liability,’’ Harlow v. Fitz-gerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 73L.Ed.2d 396 (1982) (emphasis added), andagain that government officials are ‘‘shieldedfrom liability for civil damages,’’ id. at 818,

102 S.Ct. 2727 (emphasis added). See alsoAnderson v. Creighton, 483 U.S. 635, 638, 107

S.Ct. 3034, 97 L.Ed.2d 523 (1987) (noting

that qualified immunity ‘‘shield[s] ’’ govern-

ment officials ‘‘from civil damages liability’’).


the methodology for preempting state lawand applying the federal common law im-munity, as pointed out in Saleh.

The majority relies heavily on the Su-preme Court’s statement that an immunityfrom suit must typically be derived from‘‘an explicit statutory or constitutionalguarantee that trial will not occur.’’ Ante,at 217. Thus, the majority would concludethat Saleh preemption cannot be an immu-nity from suit, because there is ‘‘no con-tention that the Supreme Court in Boyle[ ], from which Saleh preemption is de-rived, relied on any such explicit guaran-tee embodied in statute or in the Constitu-tion.’’ Ante, at 217. Retreating almostimmediately from this categorical state-ment, however, the majority then admitsin a footnote that the Supreme Court hasrecognized an implicit immunity from suitwhen such immunity has a ‘‘ ‘good pedi-gree in public law,’ which more thanmakes up for its implicitness.’’ Ante, at217 n. 9 (quoting Digital Equip., 511 U.S.at 875, 114 S.Ct. 1992). Yet, it continuesto overlook the fact that the recognizedneed in Dow and other cases to free mili-tary operations from the duties and stan-dards of state tort law represent the samekind of public law pedigree that led theSupreme Court to recognize qualified im-munity, which is a common law defenseand is concededly an immediately appeal-able issue. As the Supreme Court recent-ly instructed, ‘‘We consult the common lawto identify those governmental functionsthat were historically viewed as so impor-tant and vulnerable to interference bymeans of litigation that some form of abso-lute immunity from civil liability was need-ed to ensure that they are performed withindependence and without fear of conse-quences.’’ Rehberg v. Paulk, ––– U.S.––––, 132 S.Ct. 1497, 1503, 182 L.Ed.2d593 (2012) (internal quotations marksomitted).

Therefore, for the same reasons that thedenial of the federal common law defenserecognized in Saleh is immediately appeal-able, inasmuch as the exemption from suitwill effectively be unreviewable on appeal,the denial of the law-of-war immunity isimmediately appealable, either indepen-dently or as part and parcel of the Salehdefense. The similarity in language isstriking. Dow asks, ‘‘[w]hat is the lawwhich governs an army invading an ene-my’s country,’’ and concludes that ‘‘[i]t isnot the civil law of the invaded country; itis not the civil law of the conquering coun-try: it is military law,—the law of war.’’100 U.S. at 170. Dow continued to reasonthat ‘‘for the protection of the officers andsoldiers of the army’’ the supremacy of thecommon law of war over the civil law ‘‘is asessential to the efficiency of the army asthe supremacy of the civil law at home.’’Id. (emphasis added). Similarly, Salehemphasizes the necessary ‘‘elimination oftort from the battlefield, both to preemptstate or foreign regulation of federal war-time conduct and to free military com-manders from the doubts and uncertaintyinherent in potential subjection to civilsuit.’’ 580 F.3d at 7 (emphasis added).The freedom from ‘‘potential subjection’’ tocivil suits and the ability of military per-sonnel and contractors performing militaryfunctions to act efficiently, without the dis-traction and inhibition inherent in the po-tential imposition of state tort standards ofduty onto an active, foreign war zone can-not be vindicated by reviewing the liabilityof officers or entities after a final judg-ment.

* * *

The denial of any one of the three immu-nities claimed by CACI and L–3 is un-doubtedly immediately appealable underthe collateral order doctrine. Not only hasthe denial of such immunities, even on12(b)(6) motions, traditionally been found


to be immediately appealable, see, e.g.,Behrens, 516 U.S. at 305–06, 116 S.Ct. 834,but the substance of each immunity claimis a paradigm example of the type of col-lateral order that was held immediatelyappealable in Cohen. The immunitiesclaimed protect the defendants from judi-cial intervention into battlefield operations,a protection which would necessarily bebreached by subjecting battlefield opera-tives to suit. As noted above, these immu-nities can only be vindicated and protectedby allowing interlocutory appellate review.

III

Upon the necessary recognition of ourappellate jurisdiction to consider the im-munities on an interlocutory basis, wemust, at once and as the next immediatestep, consider our subject matter jurisdic-tion, as well as the subject matter jurisdic-tion of the district courts. ‘‘On every writof error or appeal, the first and fundamen-tal question is that of jurisdiction, first ofthis court, and then of the court fromwhich the record comes. This questionthe court is bound to ask and answer foritselfTTTT’’ Steel Co. v. Citizens for a Bet-ter Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003,140 L.Ed.2d 210 (1998). Article III pro-vides that the judicial power only extendsto ‘‘Cases’’ or ‘‘Controversies,’’ U.S. Const.art. III, § 2, and the ‘‘requirement thatjurisdiction be established as a thresholdmatter ‘spring[s] from the nature and lim-its of the judicial power of the UnitedStates’ and is ‘inflexible and without excep-tion,’ ’’ id. at 94–95, 118 S.Ct. 1003 (quotingMansfield, C. & L.M.R. Co. v. Swan, 111U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462(1884)).

Even when faced with a collateral orderimmunity appeal, we are not relieved of

the duty to ask first whether the districtcourts and then whether our court haveArticle III jurisdiction to hear these cases.See In re Methyl Tertiary Butyl EtherProds. Liab. Litig., 488 F.3d 112, 121–22(2d Cir.2007) (‘‘We conclude that review of[a removal] question is required pursuantto our independent obligation to satisfyourselves of the jurisdiction of this courtand the court belowTTTT This obligation isnot extinguished because an appeal [fromthe denial of sovereign immunity] is takenon an interlocutory basis and not from afinal judgment’’); Kwai Fun Wong v.United States, 373 F.3d 952, 960–61 (9thCir.2004) (‘‘Resolution of subject matterjurisdiction is TTT necessary to ensuremeaningful review of the district court’sinterlocutory rulings because if the appel-late courts lack jurisdiction, they cannotreview the merits of these properly appeal-ed rulings’’ (internal quotation marks omit-ted) (alterations in original)); HospitalityHouse, Inc. v. Gilbert, 298 F.3d 424, 429(5th Cir.2002) (‘‘[W]here, as in the instantcase, we have interlocutory appellate juris-diction to review a district court’s denial ofEleventh Amendment immunity, we mayfirst determine whether there is federalsubject matter jurisdiction over the under-lying case’’); Timpanogos Tribe v. Con-way, 286 F.3d 1195, 1201 (10th Cir.2002)(‘‘[J]urisdiction is a threshold questionwhich an appellate court must resolve be-fore addressing the merits of the matterbefore itTTTT [B]ecause we have appellatejurisdiction over the interlocutory appealof defendants’ assertion of EleventhAmendment immunity, we also have appel-late jurisdiction to determine whether thedistrict court had subject matter jurisdic-tion over the Tribe’s underlying claimagainst defendants in the first instance’’).5

5. Some of these courts have considered ju-risdictional questions by exercising pendentappellate jurisdiction over the question, rea-

soning that determining subject matter juris-diction is ‘‘necessary to ensure meaningfulreview’’ of the immunity question. See Kwai


In the cases presently before us, theplaintiffs have asked civilian courts to en-tertain state tort law causes of actionbased on conduct taken in connection withan active and ongoing war against anothersovereign. 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 bythe judiciary into the military functionstextually committed by our Constitution toCongress, the President, and the Execu-tive Branch. See U.S. Const. art. I, § 8,cls. 11–14 (authorizing Congress to declarewar, to raise armies and create a navy, andto make rules for the military); id. art. II,§ 2 (providing that the President ‘‘shall beCommander–in–Chief of the army andnavy of the United States, and of themilitia of the several states, when calledinto the actual Service of the UnitedStates’’). Because these cases implicateseveral ‘‘textually demonstrable constitu-tional commitment[s]’’ of authority to the‘‘political department[s],’’ they have noplace in federal courts and must be dis-missed for lack of jurisdiction. Baker v.Carr, 369 U.S. 186, 216, 82 S.Ct. 691, 7L.Ed.2d 663 (1962).

The plaintiffs in these cases were seizedin a war zone by the military, having beensuspected of hostile activity or of possess-ing useful intelligence. The function ofdetaining and interrogating such personsto obtain intelligence was undoubtedly crit-ical to the success of military strategiesand campaigns. The judgment of whom tointerrogate, what to inquire about, and thetechniques to use fell comfortably withinthe powers of the Commander–in–Chiefand his subordinates in the chain of com-mand. And CACI and L–3, as civilian

contractors of the military, worked side byside with the military to carry out thesemilitary operations under the ultimate su-pervision and command of the military‘‘during a period of armed conflict and inconnection with hostilities.’’ They wereengaged by the military to pursue interro-gations under the command and control ofmilitary personnel with respect to personsdetained by the military. And, consistentwith the close connection between the mili-tary and the military contractors, the com-plaints allege that the military and thecivilian contractors conspired in theirabuse of the military detainees.

For the reasons I gave in my panelconcurrence in Al Shimari, 658 F.3d at420–25 (Niemeyer, J., concurring), and thereasons given by Judge King in his majori-ty opinion in Taylor v. Kellogg Brown &Root Services, 658 F.3d 402, 412 (4th Cir.2011), I would conclude that the politicalquestion doctrine deprives both this courtand the district courts of subject matterjurisdiction to hear these cases. See alsoMassachusetts v. EPA, 549 U.S. 497, 516,127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (‘‘Itis TTT familiar learning that no justiciable‘controversy’ exists when parties seek ad-judication of a political question’’); Tiffanyv. United States, 931 F.2d 271, 277 (4thCir.1991) (‘‘Of the legion of governmentalendeavors, perhaps the most clearlymarked for judicial deference are provi-sions for national security and defenseTTTT

The strategy and tactics employed on thebattlefield are clearly not subject to judi-cial review’’); Carmichael v. KelloggBrown & Root Servs., Inc., 572 F.3d 1271,1283 (11th Cir.2009).

Accordingly, while we undoubtedly haveappellate jurisdiction under Cohen to con-

Fun Wong, 373 F.3d at 960–61; TimpanogosTribe, 286 F.3d at 1201. Other courts haveconsidered it because of their inherent pow-er 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.

269TCR SPORTS BROADCASTING HOLDING, L.L.P. v. F.C.C.Cite as 679 F.3d 269 (4th Cir. 2012)

sider these appeals at this stage in theproceedings, we lack subject matter juris-diction over these cases, as did the districtcourts. I would therefore dismiss theseappeals for lack of subject matter jurisdic-tion and remand the cases to the districtcourts with orders that they likewise dis-miss the cases for lack of subject matterjurisdiction.

Judge Wilkinson and Judge Shedd haveindicated that they join this opinion.

,

TCR SPORTS BROADCASTINGHOLDING, L.L.P., d/b/a Mid–AtlanticSports Network, Petitioner,

v.

FEDERAL COMMUNICATIONSCOMMISSION; United States

of America, Respondents,

Time Warner Cable Incorporated,Intervenor.

Office of the Commissioner of Baseball;Media Access Project; Robert Litan;Robert Hahn, Amici Supporting Peti-tioner.

No. 11–1151.

United States Court of Appeals,Fourth Circuit.

Argued: Jan. 26, 2012.

Decided: May 14, 2012.

Background: Sports network petitionedfor review of an order of the FederalCommunications Commission (FCC), 2008WL 4758773, which found that cablebroadcaster provided legitimate and non-discriminatory reasons for declining to car-

ry sports network programming on ananalog tier in its cable television system.

Holding: The Court of Appeals, Wynn,Circuit Judge, held that substantial evi-dence supported the FCC’s findings thatcable broadcaster provided legitimate andnon-discriminatory reasons for declining tocarry sports network’s programming on ananalog tier in its North Carolina cabletelevision system.

Affirmed.

1. Telecommunications O1240

Even if cable television broadcaster’sexecutives’ statements post-dated the initi-ation of the litigation, Federal Communica-tions Commission (FCC) reasonably cred-ited the sworn statements and testimoniesof the executives in proceedings in whichsports network alleged that cable broad-caster impermissibly discriminated againstit in declining to carry sports networkprogramming on analog tier in its cabletelevision system; FCC reasonably accept-ed broadcaster’s sworn testimony in theabsence of contemporaneous evidence torebut allegations of program carriage dis-crimination. Cable Television ConsumerProtection and Competition Act of 1992,§ 12(a)(3), 47 U.S.C.A. § 536(a)(3).

2. Telecommunications O1238(1)

Substantial evidence supported theFederal Communications Commission’s(FCC) findings that cable broadcaster pro-vided legitimate and non-discriminatoryreasons for declining to carry sports net-work’s programming on an analog tier inits North Carolina cable television system;broadcaster justified its denial of carriageof network’s Baltimore and Washingtonprofessional baseball teams’ games on ba-sis that there was limited demand forthose games in North Carolina. CableTelevision Consumer Protection and Com-

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