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Claims Against "Integrated" Contractors Were Federally Preempted

State law tort claims against two defense contractors were federally preempted and consequently summarily dismissed by the Court of Appeals for the District of Columbia Circuit because the claims involved contractor activities that were integrated with combat functions under military command authority. The plaintiffs were Iraqi nationals who brought two suits against contractors that provided interrogation and interpretation services in support of military operations in Iraq. According to the plaintiffs, employees of the two contractors abused the plaintiffs during their detention and interrogation by the military at the Abu Ghraib prison. The district court granted summary judgment in favor of one of the contractors on grounds the plaintiffs' state tort claims were federally preempted. The court reasoned the contractor's employees were fully integrated into military units, finding the employees were "under the direct command and exclusive operational control of the military chain of command." The district court, however, denied summary judgment on those grounds for the other contractor, finding that contractor's employees were subject to a "dual chain of command" because the contractor retained the power to give "advice and feedback" to its employees and interrogators were instructed to report abuses up both the company and military chains of command. The appellate court agreed with the district court's focus on the chain of command and degree of integration, but disagreed with the lower court's legal test for "exclusive" operational control. In the court's view, the contractor's retention of authority to give advice and feedback to its employees did not detract meaningfully from the military's operational control or the degree of integration of the contractor's employees with the military mission.

Free from Hindrance

The court then concluded the plaintiffs' tort claims were preempted under the rationale in Boyle v. United Technologies Corp. (34 CCF 75,489 ), in which the Supreme Court looked to the exceptions to the sovereign immunity waiver in the Federal Tort Claims Act to determine whether a significant conflict existed between state and federal law. In the instant cases, the relevant exception to the FTCA's waiver of sovereign immunity was the provision excepting "any claim arising out of the combatant activities of the military or armed forces ... during time of war" (28 USC 2680(j)). To determine whether a significant conflict existed between state tort law and federal interests, the court examined the reasons for the combat activities exception and concluded Congress exempted combatant activities because these activities "by their very nature should be free from the hindrance of a possible damage suit." According to the court, the policies underlying the combatant activities exception are equally implicated whether the alleged tortfeasor is a soldier or a contractor engaging in combatant activities under the military's control. The court then concluded that the "exclusive operational control test" applied by the district court did not protect the full measure of the federal interest embodied in the combatant activities exception. The court formulated its own test to secure the implicated federal interests: "[d]uring 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." The court concluded the Constitution's specific commitment of war powers to the federal government and the resulting absence of a state role in warfare were "cornerstones" of preemption that secured the "foundation" of its holding. The court, therefore, reversed the district court's denial of summary judgment on preemption grounds.


Circuit Judge Garland, in a lengthy dissenting opinion, disagreed with the displacement of state law and the dismissal of the plaintiffs' complaints solely on preemption grounds. The dissent took issue with the majority opinion's extension of the Boyle rationale, arguing nothing in Boyle warranted the preemption of state law in the instant cases. According to the dissent, "[n]o act of Congress and no judicial precedent bar[red] the plaintiffs from suing the private contractors." Also, no statement by the Executive Branch declared that its interests required dismissal of these suits. (Saleh, et al. v. Titan Corp., et al., CA-D of C, 53 CCF 79,169)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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