United States District Court, D. Columbia
August 12, 2005.
ILHAM NASSIR IBRAHIM, et al., Plaintiffs,
TITAN CORPORATION, et al., Defendants.
The opinion of the court was delivered by: JAMES ROBERTSON, District Judge
Plaintiffs sue seeking compensation from two private government
contractors for alleged acts of torture inflicted upon them at
the Abu Ghraib prison in Iraq. Defendants move to dismiss on a
number of grounds. Their motion must be granted as to most
counts. It will be denied however, as to several of plaintiffs'
common law claims.
Plaintiffs are seven Iraqi nationals who allege that they or
their late husbands were tortured while detained by the U.S.
military at the Abu Ghraib prison in Iraq. Defendants are private
government contractors who provided interpreters (Titan) and
interrogators (CACI) to the U.S. military in Iraq. Plaintiffs
apparently concede that they cannot sue the U.S. Government
because of sovereign immunity.
Plaintiffs' allegations are broad and serious. They assert that
defendants and/or their agents tortured one or more of them by:
beating them; depriving them of food and water; subjecting them to long periods of excessive noise; forcing them
to be naked for prolonged periods; holding a pistol (which turned
out to be unloaded) to the head of one of them and pulling the
trigger; threatening to attack them with dogs; exposing them to
cold for prolonged periods; urinating on them; depriving them of
sleep; making them listen to loud music; photographing them while
naked; forcing them to witness the abuse of other prisoners,
including rape, sexual abuse, beatings and attacks by dogs;
gouging out an eye; breaking a leg; electrocuting one of them;
spearing one of them; forcing one of them to wear women's
underwear over his head; having women soldiers order one of them
to take off his clothes and then beating him when he refused to
do so; forbidding one of them to pray, withholding food during
Ramadan, and otherwise ridiculing and mistreating him for his
religious beliefs; and falsely telling one of them that his
family members had been killed.
Plaintiffs assert claims under the Alien Tort Statute, RICO,
government contracting laws, and the common law of assault and
battery, wrongful death, false imprisonment, intentional
infliction of emotional distress, conversion, and negligence. The
motion to dismiss generally asserts lack of jurisdiction and
failure to state a claim upon which relief can be granted. Of
particular interest are defendants' submissions that plaintiffs'
claims present non-justiciable political questions, that "the law of nations" under the Alien Tort Statute does not cover torture
by non-state actors, and that plaintiffs' common law tort claims
are preempted by the government contractor defense.
A motion to dismiss for failure to state a claim under Rule
12(b)(6) will be granted only if it "appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). The complaint will be construed in the light
most favorable to the plaintiff, and the plaintiff will have "the
benefit of all inferences that can be derived from the facts
alleged." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994) (internal citations omitted). On the other hand,
a court may accept "neither `inferences drawn by plaintiffs if
such inferences are unsupported by the facts set out in the
complaint,' nor `legal conclusions cast in the form of factual
allegations.'" Browning v. Clinton, 292 F.3d 235, 242 (D.C.
Cir. 2002) (quoting Kowal, 16 F.3d at 1275).
A motion to dismiss for lack of jurisdiction under Rule
12(b)(1) is treated like a Rule 12(b)(6) motion. E.g., Barr v.
Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). To survive a Rule
12(b)(1) motion, a plaintiff has the burden of establishing that jurisdiction is proper. E.g., Macharia v. United States,
334 F.3d 61, 67-68 (D.C. Cir. 2003).
Alien Tort Statute Claim
Plaintiffs assert that defendants violated the "law of nations"
as described in the Alien Tort Statute (ATS), 28 U.S.C. § 1350.
The ATS provides: "The district courts shall have original
jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the
United States." In Sosa v. Alvarez-Machain, 124 S. Ct. 2739
(2004), the Supreme Court settled an old question by announcing
that the ATS confers jurisdiction but does not create a cause of
action. The Sosa decision also made it clear that, in limited
circumstances, aliens can look to the "law of nations" for a
federal common law cause of action. Id.
The ATS was first enacted as part of the Judiciary Act of 1789.
The only "violation[s] of the law of nations" known at that time
were "violation of safe conducts, infringement of the rights of
ambassadors, and piracy." Id. at 2761. New claims may be
recognized under common law principles, but they must "rest on a
norm of international character accepted by the civilized world
and defined with a specificity comparable to the features of the
18th-century paradigms we have recognized." Id. at 2761-62. The
Court in Sosa discussed five factors counseling very great
caution on this front: 1) common law judges in the past were seen as "discovering" law, but they are now seen as making or creating
law; 2) since Erie v. Tompkins, 304 U.S. 64 (1938), the role of
federal common law has been dramatically reduced, and courts have
generally looked for legislative guidance before taking
innovative measures; 3) creating private rights of action is
generally best left to the legislature; 4) decisions involving
international law may have collateral consequences that impinge
on the discretion of the legislative and executive branches in
managing foreign affairs; and 5) there is no mandate from
Congress encouraging judicial creativity in this area, and in
fact there are legislative hints in the opposite direction. See
id. at 2762-63.
Plaintiffs make reference to numerous treaties and other
sources of international law that strongly condemn torture. Those
authorities generally address official (state) torture, and the
question is whether the law of nations applies to private
actors like the defendants in the present case. The Supreme
Court has not answered that question, see id. at 2766 n. 20,
but in the D.C. Circuit the answer is no. In Tel Oren v. Libyan
Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), cert. denied,
470 U.S. 1003 (1985), victims of a 1978 terrorist attack in
Israel sued a number of parties, including several private
organizations, for violations of the law of nations under the
ATS. A three-judge panel unanimously dismissed the case with
three separate opinions. Judge Edwards gave the ATS the broadest reach,*fn1
generally agreeing with the Second Circuit's landmark decision in
Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980), that
acts of official torture violate the law of nations. See
Tel-Oren, 726 F.2d at 386-87, 791. However, Judge Edwards found
no consensus that private actors are bound by the law of nations.
Id. at 791-95.*fn2 The Court of Appeals addressed the
issue again only a year later in Sanchez-Espinoza v. Reagan,
770 F.2d 202 (D.C. Cir. 1985), a case involving allegations of
"execution, murder, abduction, torture, rape, [and] wounding" by
the Nicaraguan Contras, id. at 205, stating quite clearly that
the law of nations "does not reach private, non-state conduct of
this sort for the reasons stated by Judge Edwards in Tel-Oren v.
Libyan Arab Republic, 726 F.2d at 791-96 (Edwards, J.
concurring); see also id. at 807 (Bork, J. concurring)."
Id. at 206-207.*fn3 Plaintiffs' allegations describe conduct that is abhorrent to
civilized people, and surely actionable under a number of common
law theories. After Tel-Oren or Sanchez-Espinoza, however, it
is not actionable under the Alien Tort Statute's grant of
jurisdiction, as a violation of the law of nations.
Political Question Doctrine
Defendants' assertion that plaintiffs' claims are
non-justiciable because they implicate political questions is
rejected. "The nonjusticiability of a political question is
primarily a function of the separation of powers." Baker v.
Carr, 369 U.S. 186, 210 (1962). The political question doctrine
may lack clarity, see, e.g., Comm. of United States Citizens
Living in Nicaragua v. Reagan, 859 F.2d 929, 933 (D.C. Cir.
1988), but it is not without standards. At least one of following must be "inextricable from the case at bar" to
implicate the doctrine:
 a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or  a lack of judicially discoverable
and manageable standards for resolving it; or  the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial
discretion; or  the impossibility of a court's
undertaking independent resolution without expressing
lack of the respect due coordinate branches of
government; or  an unusual need for unquestioning
adherence to a political decision already made; or
 the potentiality of embarrassment from
multifarious pronouncements by various departments on
Baker, 369 U.S. at 217; see also Vieth v. Jubelirer,
541 U.S. 267
, 277-78 (2004) (citing the six Baker tests and noting
that "these tests are probably listed in descending order of both
importance and certainty"). Each case requires "a discriminating
analysis of the particular question posed, in terms of the
history of its management by the political branches, of its
susceptibility to judicial handling in the light of its nature
and posture in the specific case, and of the possible
consequences of judicial action." Baker, 369 U.S. at 211-12.
The Constitution's allocation of war powers to the President
and Congress does not exclude the courts from every dispute that
can arguably be connected to "combat," as the Supreme Court's
rejection of the government's separation of powers argument in
Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2645-51 (2004), makes
clear. As the Ninth Circuit observed, in an action by heirs of passengers of an Iranian civilian aircraft shot down
by the U.S. military during the Iran-Iraq war, "the fact that an
action is `taken in the ordinary exercise of discretion in the
conduct of war' does not put it beyond the judicial power."
Koohi v. United States, 976 F.2d 1328, 1332 (9th Cir. 1992)
(quoting and citing The Paquete Habana, 175 U.S. 677 (1900),
and citing other cases), cert. denied, 508 U.S. 960 (1993). An
action for damages arising from the acts of private contractors
and not seeking injunctive relief does not involve the courts in
"overseeing the conduct of foreign policy or the use and
disposition of military power." Luftig v. McNamara,
373 F.2d 664, 666 (D.C. Cir. 1967).
Of course this case has some relationship to foreign relations,
but "it is error to suppose that every case or controversy which
touches foreign relations lies beyond judicial cognizance."
Baker, 369 U.S. at 211; see also Japan Whaling Ass'n v. Am.
Cetacean Soc'y, 478 U.S. 221, 230-31 (1986) (allowing lawsuit to
force Secretary of Commerce to declare Japan in violation of
international whaling agreement); Comm. of United States
Citizens Living in Nicaragua, 859 F.2d 929 (D.C. Cir. 1988)
(finding "troubling" the district court refusal to adjudicate
claim of infringement of personal and property rights of U.S.
citizens resulting from U.S. funding of Nicaraguan Contras). Nor
does defendants' effort to frame this case as a standard matter
of "war reparations" successfully invoke the political question doctrine. Here, unlike in many other
reparations cases entangled with political questions, there is no
state-negotiated reparations agreement competing for legitimacy
with this court's rulings. See, e.g., Am. Ins. Ass'n v.
Garamendi, 539 U.S. 396, 413 (2003) (California law on Holocaust
era claims conflicting with executive agreements between U.S. and
France, Austria, and Germany); Hwang Geum Joo v. Japan,
___ F.3d ___, 2005 WL 1513014 (D.C. Cir. 2005) (former World War II
"comfort women" suing Japan despite prior diplomatic settlement
of claims against Japan). The facts of this case are quite
distinct from those found to implicate the political question
doctrine in Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir.
2005). There, in a matter intertwined with Cold War
decision-making, a former National Security Advisor and the
United States itself were sued for the alleged murder and torture
of a Chilean general in 1970. See id. The Court of Appeals
found that the case challenged foreign policy decisions over
which the courts have no authority. Id. Here plaintiffs sue
private parties for actions of a type that both violate clear
United States policy, see First Am. Compl. at ¶¶ 24-28, and
have led to recent high profile court martial proceedings against
United States soldiers.
Manageability problems may well emerge as the litigation in
this case proceeds, especially if discovery collides with
government claims to state secrecy. The government is not a
party, however, and I am not prepared to dismiss otherwise valid claims at this early stage in anticipation of
obstacles that may or may not arise.
Defendants assert that plaintiffs' common law claims are
preempted under an extension of the government contractor defense
laid out in Boyle v. United Techs. Corp., 487 U.S. 500 (1988),
and expanded by Koohi. Preemption in this sense means that,
even if plaintiffs' serious common law allegations are true,
there may be no remedy for them,*fn4 and plaintiffs' common
law claims may indeed ultimately be barred. The government
contractor defense is an affirmative defense, however, and
defendants have not produced sufficient factual support to
justify its application. In Boyle, the estate of a Marine helicopter pilot sued a
helicopter manufacturer for wrongful death caused by alleged
product defects. Boyle, 887 U.S. at 502-03. The Supreme Court
found Boyle's claims preempted as a matter of judge-made federal
common law. Id. at 504-13. The Court first determined that
"uniquely federal interests" were at stake the rights and
obligations of the United States under its contracts, civil
liability for actions taken by federal officials in the course of
their duty, and federal procurement of equipment. Id. at
504-07. Then, the Court concluded that the application of state
law liability theory presented a "significant conflict" with
federal policies or interests, id. at 507-513, finding guidance
in the "discretionary function" exception to the Federal Tort
Claims Act (FTCA). Id. at 511-13. The Court reasoned that if
the helicopter's design was a result of government policy
decisions, even ones that made trade-offs between safety and
combat effectiveness, liability should not be permitted. Id. To
ensure that the design was a product of government discretionary
decision-making, the Court remanded for a determination as to
whether: "(1) the United States approved reasonably precise
specifications; (2) the equipment conformed to those
specifications; and (3) the supplier warned the United States
about the dangers in the use of the equipment that were known to
the supplier but not to the United States." Id. at 512. Koohi extended Boyle to a case involving combatant
activities. The FTCA bars suits against the federal government
for "any claim arising out of the combatant activities of the
military or naval forces, or the Coast Guard, during time of
war." 28 U.S.C. § 2680(j). In Koohi, the court looked to this
combatant activities exception to the FTCA and found that one
purpose of the exception "is to recognize that during wartime
encounters no duty of reasonable care is owed to those against
whom force is directed as a result of authorized military
action." Koohi, 976 F.2d at 1337. Thus, guided by Boyle's
reliance on the FTCA, the court found that imposing liability on
the civilian makers of a weapons system used in an accidental
shooting down of a civilian aircraft "would create a duty of care
where the combatant activities exception is intended to ensure
that none exists." Id.; see also Bentzlin v. Hughes Aircraft
Co., 833 F. Supp. 1486 (C.D. Cal. 1993).
Defendants want me to expand Boyle's preemption analysis
beyond Koohi's negligence/product liability context to
automatically preempt any claims, including these intentional
tort claims, against contractors performing work they consider to
be combatant activities. This would be the first time that
Boyle has ever been applied in this manner. Boyle explicitly
declined to address the question of extending federal immunity to
non-government employees, Boyle, 487 U.S. at 505 n. 1, and I
will not extend that immunity here.*fn5 Rather, preemption under the
government contractor offense is an affirmative defense, with the
burden of proof on the defendants. See id. at 513-14;
Densberger v. United Techs. Corp., 297 F.3d 66, 75 (2nd Cir.
2002), cert. denied, 537 U.S. 1147 (2003); Snell v. Bell
Helicopter Textron, Inc., 107 F.3d 744, 746 (9th Cir. 1997).
Under the first step of Boyle's analysis, I must agree that
the treatment of prisoners during wartime implicates "uniquely
federal interests." For the second step, following Boyle and
Koohi, I will look to the FTCA for guidance on the question of
whether a suit here would produce a "significant conflict" with
federal policies or interests. In Boyle, the Court sought to
develop a common law rule that would prevent "state tort suits
against contractors [that] would produce the same effect sought
to be avoided by the FTCA exemption." 487 U.S. at 511. Especially
because the government will eventually end up paying for
increased liability through higher contracting prices (or through
an inability to find contractors willing to take on certain
tasks), the Boyle court noted, "It makes little sense to
insulate the Government against financial liability for the
judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but
not when it contracts for the production." Id. at 512. The
inquiry then turns to whether allowing a suit to go forward would
conflict with the purposes of the FTCA and whether defendants
have shown that they were essentially soldiers in all but name.
The legislative history for the FTCA's combatant activities
exception*fn6 is "singularly barren," Johnson v. United
States, 170 F.2d 767, 769 (9th Cir. 1948), and there is little
case law for guidance. The exception seems to represent
Congressional acknowledgment that war is an inherently ugly
business for which tort claims are simply inappropriate. As the
Supreme Court has explained in a different context, "It would be
difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to
submission to call him to account in his own civil courts and
divert his efforts and attention from the military offensive
abroad to the legal defensive at home." Johnson v. Eisentrager,
339 U.S. 763, 778 (1950). State law regulation of combat activity
would present a "significant conflict" with this federal interest
in unfettered military action. This is true even with regard to
intentional torts, because exceptions to FTCA represent
"Governmental activities which by their very nature should be
free from the hindrance of a possible damage suit." Johnson v.
United States, 170 F.2d at 769; see also Koohi,
976 F.2d at 1335 (FTCA combatant activities exception applies even to acts
that are "deliberate rather than the result of error"). Thus, we
are brought again the question of whether defendants' employees
were essentially acting as soldiers.
Defendants were employed by the U.S. military as interrogators
(CACI) and interpreters (Titan) in a prison in Iraq where
captured persons were detained. Defendants assert that their
employees were essentially on "loan" to the military, 4/21/05 Tr.
at 6, that these employees were "essentially . . . integrated
into the military hierarchy," id. at 29, and that the
"military's operational control over [these employees was]
total." Def. Titan Mot. Dismiss at 6. A "Statement of Work"
provided by Titan is consistent with the notion that Titan's
employees were soldiers in all but name, although it also contains some language suggesting a contrary conclusion.*fn7
(CACI has not provided a statement of work.) Other than Titan's
Statement of Work, defendants' have produced nothing beyond
limited assertions to meet their factual burden of showing that
they are entitled to the government contractor defense. More
information is needed on what exactly defendants' employees were
doing in Iraq. What were their contractual responsibilities? To
whom did they report? How were they supervised? What were the
structures of command and control? If they were indeed soldiers
in all but name, the government contractor defense will succeed,
but the burden is on defendants to show that they are entitled to
Full discovery is not appropriate at this stage, especially
given the potential for time-consuming disputes involving state
secrets. Since limited additional facts are needed, a motion for
summary judgment is the right vehicle to address the issue of
preemption. I will entertain such a motion from defendants,
complete with whatever supporting material they believe
sufficient. If appropriate, plaintiffs will then of course be entitled to file a Rule 56(f) affidavit, and we will
address any discovery at that point.*fn8
Plaintiffs' claims under RICO could be dismissed for a number
of reasons, but it is sufficient to note here that plaintiffs do
not have standing. A plaintiff seeking RICO standing must allege
damage to "business or property." 18 U.S.C. § 1964(c).
Allegations of personal injuries alone are not sufficient.
Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86,
100-02 (D.D.C. 2003). Plaintiffs allege that U.S. Military
forces seized $400 and a weapon from plaintiff Hadod, First Am.
Compl. at ¶ 40, but plaintiffs' counsel concede that they can
allege no acts involving defendants that go beyond personal
injury. Pls.' Opp'n to Def. Titan's Mot. Dismiss at 27-28.
Government Contracting Law Claim
Plaintiffs' claims under various laws regulating U.S.
government contracts must be dismissed. First, plaintiffs do not
attempt to challenge defendants' assertion that these laws
provide no private right of action. Second, insofar as plaintiffs
attempt in their opposition to somehow restyle this portion of their complaint as presenting a "claim for equitable
relief" through RICO, see, e.g., Pls.' Opp'n to Def. Titan's
Mot. Dismiss at 31-33, I need only note that I am dismissing
plaintiffs' RICO claims. Finally, plaintiffs have failed to join
an indispensable party (the United States) in this claim. See
Fed.R.Civ.P. 12(b)(7), 19.
False Imprisonment and Conversion Claims
Although most of plaintiffs' common law claims may proceed as
provided above, the false imprisonment and conversion claims will
be dismissed. As discussed above, the only factual allegation
that could conceivably support conversion involves the U.S.
military and not defendants. As to false imprisonment,
plaintiffs' initially assert in their complaint that they were
"forcibly detained under United States custody in Iraq," First
Am. Compl. at ¶ 1, and that they were "detained, interrogated,
and physically abused by the Defendants and/or others while under
the custody and control of the Defendants," e.g., id. at ¶
32. Those plaintiffs providing information on their arrests,
however, all indicate that they were arrested by U.S. or Iraqi
authorities, not defendants. See First Am. Compl. at ¶ 31, 36,
40, 49, 54. Plaintiffs have not responded to CACI's observation
that the complaint appears to implicate only the United States,
and not defendants, in their detention, Def. CACI Mot. Dismiss at
44-45, except to say that they "intend to amend the Amended
Complaint when additional facts are discovered with regard to their claim? for . . . false imprisonment." Pls.' Opp'n to Def.
CACI's Mot. Dismiss at 32 n. 10. If, and when, plaintiffs have a
justifiable basis on which to implicate these defendants in their
false imprisonment and conversion claims, they may seek leave to
amend their complaint.
Diversity and Minimum Amount
Jurisdiction for plaintiffs' common law claims is based on
28 U.S.C. § 1332. That statute does not confer jurisdiction over
suits by a group consisting of only foreign persons against
another foreign person. 28 U.S.C. § 1332(a). As plaintiffs are
aliens, their claims against defendant CACI N.V., which is
incorporated in the Netherlands, must be dismissed. See
JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure
Ltd., 536 U.S. 88, 91 (2002) (entities incorporated in foreign
countries are foreign citizens for purposes of diversity
analysis).*fn9 As to plaintiffs' failure to allege at least
$75,000 in damages, 28 U.S.C. § 1332 (a), I find that it is in
the interest of justice to allow an amendment. * * *
An appropriate order accompanies this memorandum.