For Alien Tort-watchers, all eyes are focused on the Supreme Court and the pending decision in Jesner v. Arab Bank, which may determine that corporations are not appropriate defendants in cases brought pursuant to the Alien Tort Statute (“ATS”).
In the interim, in a decision released on February 21, the District Court for the Eastern District of Virginia has allowed plaintiffs to proceed with their ATS case against U.S. government contractor, CACI Premier Technology, Inc. (“CACI”), which provided certain interrogation-related services to the U.S. military in Iraq. In the case, Al Shimari v. CACI, Plaintiffs have alleged that they were subject to torture and other mistreatment while held at Abu Ghraib prison.
Al Shimari was originally remanded to the District Court after a 2014 decision by the Fourth Circuit, which held that plaintiffs’ claims sufficiently “touch and concern” the United States so as to overcome the presumption against extraterritoriality. That presumption has applied to ATS cases since the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum. The case was subsequently dismissed, after a finding that the plaintiffs’ claims were non-justiciable pursuant to the political question doctrine. In 2016, the Fourth Circuit vacated the dismissal, finding that a military contractor’s acts may only be shielded from judicial review to the extent that those acts were committed under the actual control of the military and were not unlawful.
In its latest decision, the Court found that plaintiffs’ claims are properly cognizable under the ATS because their factual allegations, if found to be true, do constitute torture, the type of conduct that is properly heard in ATS cases since the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain. The Court also found that plaintiffs’ claims of conspiracy and aiding and abetting may proceed.
The Court did dismiss claims made by the plaintiffs that depend on a theory of direct liability, as plaintiffs have not sufficiently alleged that they were directly injured by a CACI employee.
Since 2014, the facts in Al Shimari have provided the clearest example of the types of scenarios that will meet the “touch and concern” standard set forth by the Supreme Court in Kiobel (U.S. corporation; contract with the United States; allegations based on conduct in a facility run by the U.S. military). Notably, the Fourth Circuit’s 2014 decision represented the first time since the Kiobel decision that a federal appellate court had found that claims in an ATS case were sufficient to overcome the presumption against extraterritoriality. This latest decision will allow the litigation to proceed once again…at least until the Supreme Court rules on the appropriateness of corporate liability in Jesner.