In a decision issued September 11, 2009, a split panel of the D.C. Circuit in Saleh v. Titan Corp., Nos. 08-7008, 08-7009 (D.C. Cir. Sept. 11, 2009) held that federal law, pursuant to the Supremacy Clause of the United States Constitution, preempted state law tort claims arising from allegations of detainee abuse lodged against contractor employees performing at Abu Ghraib prison in Iraq. The panel's decision affirmed the district court's grant of summary judgment to defendant Titan Corporation and overturned the denial of summary judgment for defendant CACI International, Inc.

Senior Circuit Judge Silberman, joined in the opinion by Judge Kavanaugh, ruled that the plaintiffs' state tort claims were preempted by federal law principally based on the reasoning of the Supreme Court's decision in Boyle v. United Technologies Corp., 487 U.S. 500 (1992). Slip. op. at 8. Boyle involved state law tort claims brought against the manufacturer of a military helicopter that conformed to the Government's design specifications. Analogizing to the exemption to the waiver of sovereign immunity in the Federal Torts Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, for discretionary acts, the Boyle Court held that the procurement of military equipment by the Government implicated "uniquely federal interests," that state law is displaced where it would threaten a discretionary function of the Government (which the Court held included the selection of the design for military equipment), and that a significant conflict between federal interests and state law would exist if a contractor were subjected to state tort remedies for complying with the Government's (discretionary) design. 487 U.S. at 504-506, 511-512.

Consistent with the Boyle Court's consultation of the FTCA, Judge Silberman also "looked to the FTCA exceptions to the waiver of sovereign immunity to determine that the conflict [between federal interests and state tort law] was significant and to measure the boundaries of the conflict." Slip op. at 10. In the case at hand, the relevant FTCA exception was the "combatant activities" exception, which provides an exemption to the waiver of sovereign immunity for "any claim arising out of the combatant activities of the military or armed forces, or the Coast Guard, during time of war." 28 U.S.C. § 2680(j). Judge Silberman noted that "the policy embodied by the combatant activities exception is simply the elimination of tort from the battlefield, both to preempt state or foreign regulation of federal wartime conduct and to free military commanders from the doubts and uncertainty inherent in potential subjection to civil suit." Slip op. at 12-13. Because "the imposition per se of . . .state or foreign tort law . . . conflicts with the FTCA's policy of eliminating tort concepts from the battlefield," Judge Silberman recognized a form of "battlefield preemption," which provides that "the federal government occupies the field when it comes to warfare, and its interest in combat is always 'precisely contrary' to the imposition of a non-federal tort duty." Id. at 13 (quoting Boyle, 487 U.S. at 500)). To define the boundaries of federal interest and narrow the scope of displacement of state and foreign tort laws, the court devised this test:

During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor's engagement in such activities shall be preempted.

Id. at 16. Accordingly, under the D.C. Circuit panel's holding, even if the contractor retains some control over its employees in the battlefield, tort law claims will be preempted if the military retains final command authority.

The court further noted that tort suits against contractors would not be preempted under the court's holding when a performance-based statement of work was used. The court reasoned that because such statements of work describe the work in terms of results - not how the work is to be performed - the military does not retain command authority or operational control over the contractors' work. Id. at 17. Furthermore, the court held that the Supreme Court's various other preemption precedents in the national security and foreign policy arena provided an alternative basis for supporting its preemption determination. Id. at 23.

Finally, the court upheld the district court's dismissal of claims against Titan under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. The district court held that because there is no consensus that private acts of alleged torture violate the law of nations, a cause of action arising from such alleged conduct was not actionable under the ATS. Id. at 5-6, 24-30. In upholding this determination, the court, among other things, noted that it should exercise "judicial restraint" in expanding jurisdiction under the ATS to cover other international law norms. Id. at 26. In addition, allowing plaintiffs' ATS claims to proceed would be inconsistent with the court's holding on preemption: "[i]f we are correct in concluding that state tort law is preempted on the battlefield because it runs counter to federal interests, the application of international law to support a tort action on the battlefield must be equally barred." Id. at 30.

Judge Garland filed a dissenting opinion, arguing that under the circumstances of the case, there was no grounds for preemption.

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