Al Shimari v. CACI, No. 13-1937 (4th Cir. June 30, 2014) [click for opinion]
Former Iraqi detainees at the Abu Gharib prison brought suit under the Alien Tort Statute ("ATS") against defense contractors CACI and L-3 Services Incorporated and a former CACI employee, Timothy Dugan, alleging that CACI directed and participated in illegal conduct, including torture, at the prison in Iraq, where it provided interrogation services. L-3 Services and Timothy Dugan were dismissed as defendants. The district court subsequently dismissed the claim against CACI for lack of subject matter jurisdiction, since the alleged abuses occurred in Iraq.
On appeal, the Fourth Circuit, in considering whether there was subject matter jurisdiction under the ATS, applied the "touch and concern" standard established by the Supreme Court in Kiobel v. Royal Dutch Petroleum. Kiobel established a presumption against extraterritoriality in all cases under the ATS, which may be overcome when "claims touch and concern the territory of the United States" with "sufficient force," but that more than a "mere corporate presence" in the U.S. is necessary to displace the presumption.
The Fourth Circuit held that the claims sufficiently "touch and concern" the U.S. so as to overcome the presumption against extraterritoriality. In applying "a fact-based analysis...to determine whether courts may exercise jurisdiction over certain ATS claims," the court observed that, pursuant toKiobel, the proper analysis involves determining whether the "claims" and not the "alleged tortious conduct" touch and concern the U.S. This requires consideration of "a broader range of facts than the location where the plaintiffs actually sustained their injuries," including "the parties' identities and their relationship to the causes of action" in evaluating whether the exercise of federal court jurisdiction is appropriate.
The Fourth Circuit ultimately found that Plaintiffs had alleged sufficient facts to overcome the presumption against extraterritoriality. The court was persuaded by the fact that CACI is a U.S. corporation, its employees whose conduct is at issue are U.S. citizens, the U.S. Department of Interior issued the contract to CACI in the U.S., CACI's employees were required to obtain security clearances from the U.S. Department of Defense, and Plaintiffs alleged that CACI managers based in the U.S. approved, encouraged, and/or attempted to conceal the alleged misconduct in Iraq. In approving the exercise of subject matter jurisdiction, the court also relied on "the express intent of Congress, through the enactment of the TVPA [Torture Victim Protection Act of 1991] and 18 U.S.C. § 2340A, to provide aliens access to United States courts and to hold citizens of the United States accountable for acts of torture committed abroad."