Immunity vs. Preemption in the Fourth Circuit Torture Cases--And Why That Distinction Matters

We've previously covered the Fourth Circuit's pair of decisions in September dismissing tort suits against various contractors arising out of claims of torture at various detention facilities in Iraq--including Abu Ghraib.  In the cases, Al Shimari v. CACI Int'l, Inc. and Al-Quraishi v. L-3 Servs., Inc., the Fourth Circuit's analysis turned on the conclusion that the federal courts have the power to fashion, as a matter of federal common law, a rule analogous to the "combatant activities" exception to the Federal Tort Claims Act. Thus, the logic goes, because that statutory exception would preempt state-law tort claims against federal officer defendants under similar circumstances, the federal courts should use their lawmaking powers to preempt similar claims against private government contractors exercising comparable functions. Such reasoning relies heavily on the D.C. Circuit's controversial 2009 decision in Saleh v. Titan Corp. Saleh, in turn, expanded the logic of the Supreme Court's 1987 decision in Boyle v. United Technologies Corp., in which Justice Scalia held that federal courts could derive from the FTCA the power to fashion a common law defense for contractors in highly-specific cases that would otherwise directly affect the pecuniary interests of the federal government. Like Judge Garland (who dissented in Saleh), I don't think Saleh (or the more recent Fourth Circuit decisions) remotely follows from Boyle, all the more so because it's not necessarily obvious that the combatant activities exception itself would have applied. But for reasons I'll explain below, that's for another time... For the moment, I thought I'd raise a threshold issue, and a surprisingly hard (if technical) question for the Fourth Circuit in the current appeals: assuming Saleh is rightly decided, what kind of defense is Boyle-like preemption? Before getting to the different possibilities, let me flag why this matters: Both Al Shimari and Al-Quraishi were interlocutory appeals under the "collateral order doctrine," which is a carefully circumscribed exception to the final judgment rule of 28 U.S.C. § 1291. That is to say, in both cases, the defendants had their motions to dismiss denied, and sought to take an immediate interlocutory appeal rather than proceeding to discovery. In Al-Quraishi, a divided panel of the Fourth Circuit sustained jurisdiction under the collateral order doctrine, offering four reasons for why these cases presented a valid invocation thereof:

First, this case presents substantial issues relating to federal preemption, separation-of-powers, and immunity that could not be addressed on appeal from final judgment. The plaintiffs' complaint, in essence, alleges that military functions carried out conspiratorially in a war zone by military personnel and civilian contract employees violated rules and norms adopted for those functions by the military. Allowing the case to proceed would allow judicial scrutiny of military policies and practices in a way that could not be remedied in an appeal from the final judgment. Second, the district court effectively determined conclusively the question of whether state tort law can be applied to a battlefield context. Just as immunity from suit must be recognized in the early stages of litigation in order to have its full effect, battlefield preemption must also be recognized in order to prevent judicial scrutiny of an active military zone. Third, the disputed questions are collateral to resolution on the merits. The issues raised both here and in the district court are entirely separate from the merits. Indeed, in reaching our decisions here and in Al Shimari v. CACI International, we have accepted as true the plaintiffs' allegations that the defendants engaged in a conspiracy with military personnel to torture them, abuse them, and cover up those actions. Fourth and finally, and perhaps most important to exercising jurisdiction in this case, we conclude that the federal preemption doctrine underlying our opinion represents a strong public policy interest, where wartime actions within a United States military prison are being challenged in a civilian court under state tort law.

However plausible these contentions are in the abstract, they completely fail to appreciate a critical distinction the Supreme Court has previously drawn--between immunity defenses (the denial of which have usually been held to be immediately appealable) and defenses to liability like preemption (the denial of which have usually not been held to be immediately appealable). After all, the purpose of an immunity defense is to protect a defendant from unnecessary litigation (which would be undermined if the denial thereof could not be immediately appealed). In contrast, the purpose of a preemption defense is for the defendant to argue on the merits that federal law precludes (otherwise available) liability under state law. [Those interested in a longer form of these arguments should check out this amicus brief that I helped to put together for the en banc Fourth Circuit, which articulates this distinction in more detail.] Moreover, this point is not just a technicality; as Judge King explained in his dissent in Al-Quraishi, "the review of prejudgment appeals as a matter of course would 'undermine [ ] efficient judicial administration and encroach[ ] upon the prerogatives of district court judges, who play a special role in managing ongoing litigation.' A surfeit of interlocutory appeals would also subject meritorious lawsuits to 'the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.'" Especially in suits against government contractors, blurring the distinction between immunity and preemption also risks conflating the very different legal regimes in which government officers operate as compared to their private contractor brethren. In short, whatever Saleh is, it's not an immunity defense, and so Al-Quraishi's reasoning is simply incorrect. To be fair, the defendants in both cases also claimed that they possessed a "law-of-war immunity" from such suits (which would presumably have applied to the tort suits even without federal common law preemption). Perhaps because of the plaintiffs' counterarguments, i.e., that such immunity (i) does not apply to government contractors; (ii) does not apply to suits brought in U.S. courts; and (iii) does not extend to violations of the law of war, the Court of Appeals did not rely on such immunity as the basis for jurisdiction. Indeed, I think it's quite a stretch to argue that private contractors are entitled to such immunity, given the distinct reasons why it is bestowed on government officers--and the criminal liability those officers may nevertheless face in cases in which their conduct violates the laws of war. As a result, there is a serious jurisdictional defect in both of these cases, and a fairly obvious way for the en banc Fourth Circuit to avoid the (in my view, extremely difficult) merits issues until and unless they arise on post-judgment appeal.