Fourth Circuit Upholds 'Derivative' Soveign Immunity, Following The D.C. Circuit

Suhail Najim Abdullah Al Shimari, et al. v. CACI Int'l,No. 09-1335 (4th Cir. 2011), addresses the issue of "derivative sovereign immunity", which deserves another look. According to the allegations, four Iraqi citizens were seized by the U.S. military in the Iraq war zone and detained by the military in Iraq. They allege that, while detained, the contractor's employees and military personnel conspired among themselves and with others to torture and abuse them and to cover up that conduct. The District Court The district court denied the contractor's motion, concluding: "Plaintiffs' claims are justiciable because civil tort claims against private actors for damages do not interfere with the separation of powers" and that plaintiffs' claims "are not preempted by the combatant activities exception at this stage because discovery is required to determine whether the interrogations here constitute 'combatant activities' within the meaning of the exception".

The Fourth Circuit reversed. Based on the "uniquely federal interests involved in this case", the Court of Appeals concluded that the tort claims are "preempted and displaced under the reasoning articulated in Boyle v. United Technologies Corp., 487 U.S. 500 (1988)". The Fourth Circuit therefore reached the same conclusion as did the Court of Appeals for the District of Columbia in Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009). The Fourth...