The opinion of the court was delivered by: James Robertson United States District Judge
Named plaintiffs in both of these cases are Iraqi nationals who allege that they or their late husbands were tortured or otherwise mistreated while detained by the U.S. military at Abu Ghraib and other prisons in Iraq. Defendants are government contractors who provided interpreters (Titan)*fn1 or interrogators (CACI)*fn2 to the U.S. military in Iraq. The defendants have moved for summary judgment, asserting that plaintiffs' common law tort claims should be preempted under the government contractor defense.
On August 12, 2005, I dismissed the Ibrahim plaintiffs' claims under the Alien Tort Statute, RICO, various international laws and agreements, and U.S. contracting laws. I also dismissed their common law claims for false imprisonment and conversion. This left the plaintiffs with four common law claims: assault and battery, wrongful death and survival, intentional infliction of emotional distress, and negligence. Defendants urged that those claims be dismissed as well, arguing that they should be preempted under an extension of the government contractor defense. I concluded that the defendants had not produced sufficient factual support at that stage of the record's development to justify the application of this affirmative defense. Limited discovery was needed on the question of whether defendants' employees "were essentially acting as soldiers," and I asked, "What were [the defendants'] contractual responsibilities? To whom did [their employees] report? How were they supervised? What were the structures of command and control?" Ibrahim v. Titan Corp., 391 F. Supp.2d 10, 19 (D.D.C. 2005). On June 26, 2006, I dismissed the Saleh plaintiffs' federal claims. Saleh v. Titan Corp., 436 F. Supp.2d 55, 57-59 (D.D.C. 2006). That disposition rendered Saleh virtually indistinguishable from Ibrahim, because the Saleh plaintiffs also bring a number of common law claims, including assault and battery, sexual assault, wrongful death, negligent hiring and supervision, and intentional and negligent infliction of emotional distress. The cases were consolidated for discovery purposes only.
In Boyle v. United Technologies Corporation, 487 U.S. 500 (1992), the Supreme Court laid out a general framework for identifying whether state law tort claims brought against military contractors should be preempted by judge-made federal common law. First, the court must determine whether "uniquely federal interests" are at stake. Id. at 504-07. Second, the court must determine whether the application of state tort law would produce a "significant conflict" with federal policies or interests. Id. at 507-13.
In the August 12, 2005, opinion in Saleh, I concluded that the treatment of prisoners during wartime undoubtedly implicates uniquely federal interests. As Boyle instructs, I looked to the Federal Tort Claims Act (FTCA) for guidance on the question of whether allowing these suits to go forward would produce a significant conflict with identifiable federal policies or interests. The defendants urged that plaintiffs' claims conflict with the federal interests embodied in the FTCA's combatant activities exception, which bars suit against the federal government for "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." 28 U.S.C. § 2680(j). As explained by the Ninth Circuit in Koohi v. United States, the purpose of that 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." 976 F.2d 1328, 1337 (9th Cir. 1992).
In Koohi, as in Boyle, the preempted tort claims were for products liability. There was, and is, no controlling authority applying the combatant activities exception to the tortious acts or omissions of civilian contractors in the course of rendering services during "wartime encounters."*fn3 I concluded that plaintiffs' state tort claims would be preempted if the defendants could show that their employees at Abu Ghraib functioned as soldiers in all but name.*fn4 Discovery and briefing in this case have allowed sharper definition of the showing necessary for preemption pursuant to the FTCA's combatant activities exception. As a threshold matter, defendants must have been engaged in "activities both necessary to and in direct connection with actual hostilities." United States v. Johnson, 170 F.2d 767, 770 (9th Cir. 1948). If this was the case, the combatant activities exception will preempt state law only when defendants' employees were acting under the direct command and exclusive operational control of the military chain of command.
That test follows the approach to federal interest preemption that the Supreme Court set forth in Boyle. Boyle explains that the "scope of displacement" of state law must be tailored to the scope of the federal interest being protected. In that case, the estate of a Marine helicopter pilot sued the private helicopter manufacturer for wrongful death caused by alleged design defects. The plaintiff's allegations focused on the function of the helicopter's escape hatch, which was designed according to government specifications. Among the defects alleged was the fact that the escape hatch opened out, rather than in, making it ineffective when the craft crashed in water. After finding that uniquely federal interests were at stake -- including the rights and obligations of the United States under its contracts -- the Supreme Court concluded that the imposition of state tort liability would conflict with the discretionary function exception to the FTCA. See 28 U.S.C. § 1346(b) (barring suits against the United States that are "based upon exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused"). As the Supreme Court explained, "the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function within the meaning of this provision." Boyle, 487 U.S. at 511. In order to preserve the federal interests embodied by the discretionary function exception, the Supreme Court set out a three-part test to determine when this federal interest requires the displacement of state law. Military contractors cannot be held liable under state law for design defects when: 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. Boyle's three factors ensure that state law will be preempted only when "the suit is within the area where the policy of the 'discretionary function' would be frustrated -- i.e., they assure that the design feature in question was considered by a Government officer and not merely by the contractor itself." Id.
The federal interest at stake in the present case is embodied, not by the discretionary function exception, but by the combatant activities exception. In such a case a different test for preemption must be used to ensure that any displacement of state law will also be commensurate with the scope of the federal interest at issue. The policy underlying the FTCA's combatant activities exception is that the military ought be "free from the hindrance of a possible damage suit" based on its conduct of battlefield activities. Johnson, 170 F.2d at 769. In this respect, the policy echoes the Supreme Court's admonition that "[i]t would be difficult to devise a 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).
Although preemption pursuant to the combatant activities exception relieves the contractor of liability, this effect is incidental to the real function of preemption, which is to shield military combat decisions from state law regulation. This function is seen in the way the exception operates under the FTCA. As applied to the military, this reservation of sovereign immunity ensures that state law will not interfere with an officer's authority, pursuant to the military chain of command, to give legally binding orders to his subordinates. In other words, the exception eliminates the possibility that state law liability could cause a soldier to second-guess a direct order.
In context of preemption, the federal interest embodied by the exception is the same. Where contract employees are under the direct command and exclusive operational control of the military chain of command such that they are functionally serving as soldiers, preemption ensures that they need not weigh the consequences of obeying military orders against the possibility of exposure to state law liability. It is the military chain of command that the FTCA's combatant activities exception serves to safeguard, however, and common law claims against private contractors will be preempted only to the extent necessary to insulate military decisions from state law regulation. This is why the degree of operational control exercised by the military over contract employees is dispositive. When the military allows private contractors to retain authority to oversee and manage their employees' job performance on the battlefield, no federal interest supports relieving those contractors of their state law obligations to select, train, and supervise their employees properly.
The government contractor defense is an affirmative defense, so the burden is on defendants to show that they meet the requirements for preemption. Whether they have done so is ultimately a question of fact for the jury. See Boyle, 487 U.S. at 514. When the defense is put forward on a motion for summary judgment, as defendants have done here, the factual showing required is a demanding one. On a motion for summary judgment, the question is not whether the defendants have submitted evidence sufficient to allow a jury to apply the defense. The question is instead whether the defendants are "entitled to judgment as a matter of law, i.e., whether no reasonable jury could fail to find that the defense ha[s] been established." Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 746 (9th Cir. 1997). In other words, defendants' motions for summary judgment ...