Wissam Al-Quraishi v. L-3 Services, Incorporated ( 2011 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WISSAM ABDULLATEFF SA’EED AL- 
QURAISHI,
Plaintiff-Appellee,
v.
L-3 SERVICES, INCORPORATED,
Defendant-Appellant,
and
ADEL NAKHLA; CACI  No. 10-1891
INTERNATIONAL, INCORPORATED;
CACI PREMIER TECHNOLOGY,
INCORPORATED,
Defendants.
EARTHRIGHTS INTERNATIONAL,
Amicus Supporting Appellee.

2 AL-QURAISHI v. L-3 SERVICES, INCORPORATED
WISSAM ABDULLATEFF SA’EED AL- 
QURAISHI,
Plaintiff-Appellee,
v.
ADEL NAKHLA,
Defendant-Appellant,  No. 10-1921
and
L-3 SERVICES, INCORPORATED; CACI
INTERNATIONAL, INCORPORATED;
CACI PREMIER TECHNOLOGY,
INCORPORATED,
Defendants.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(8:08-cv-01696-PJM)
Argued: October 26, 2010
Decided: September 21, 2011
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Reversed and remanded with instructions by published opin-
ion. Judge Niemeyer wrote the opinion, in which Judge Shedd
joined. Judge King wrote a dissenting opinion.
AL-QURAISHI v. L-3 SERVICES, INCORPORATED 3
COUNSEL
ARGUED: Ari S. Zymelman, WILLIAMS & CONNOLLY,
LLP, Washington, D.C., for Appellants. Susan L. Burke,
BURKE PLLC, Washington, D.C., for Appellee. ON BRIEF:
Eric Delinsky, ZUCKERMAN SPAEDER LLP, Washington,
D.C.; F. Whitten Peters, F. Greg Bowman, WILLIAMS &
CONNOLLY, LLP, Washington, D.C., for Appellants.
Shereef H. Akeel, AKEEL & VALENTINE, PLC, Troy,
Michigan; Joseph F. Rice, Frederick C. Baker, Rebecca M.
Deupree, Meghan S. B. Oliver, MOTLEY RICE LLC, Mt.
Pleasant, South Carolina; Susan M. Sajadi, Katherine Haw-
kins, BURKE O’NEIL, LLC, Washington, D.C.; Katherine
Gallagher, J. Wells Dixon, CENTER FOR CONSTITU-
TIONAL RIGHTS, New York, New York, for Appellee.
Richard Herz, Marco Simons, Jonathan Kaufman, EARTH-
RIGHTS INTERNATIONAL, Washington, D.C., for Amicus
Supporting Appellee.
OPINION
NIEMEYER, Circuit Judge:
Seventy-two Iraqis, who were seized in Iraq by the U.S.
military and detained at various locations throughout Iraq,
commenced this action against L-3 Services, Inc., a military
contractor, and one of its employees, Adel Nakhla (collec-
tively, "L-3 Services"). L-3 Services was retained by the mili-
tary to provide translation services in connection with
interrogations of persons detained at various detention sites in
the Iraq war zone. The plaintiffs allege that L-3 Services’
employees and military personnel conspired among them-
selves and with others to torture and abuse them while they
were detained and to cover up that conduct.
The factual context alleged in the complaint is, for purposes
of the issues before us, the same as stated in Al-Shimari v.
4 AL-QURAISHI v. L-3 SERVICES, INCORPORATED
CACI International, Inc., ___ F.3d ___, No. 09-1335 (4th Cir.
Sept. 21, 2011), which we also decide today. There are, how-
ever, differences between the allegations in the two cases. The
complaint here states that L-3 Services was hired by the mili-
tary to provide translation services in connection with interro-
gations of Iraqi detainees. It alleges, "L-3 translators have
admitted . . . to participating in interrogations where detainees
were hit, kept in stress positions until they collapsed, made to
do push-ups until they collapsed, kept awake for long periods,
exposed to extreme temperatures and choked by the throat."
J.A. 64. Moreover, the plaintiffs here were detained not only
in Abu Ghraib prison but at over 20 different sites in Iraq, all
staffed by L-3 Services employees.
L-3 Services filed a motion to dismiss the complaint on
numerous grounds, including law of war immunity; the politi-
cal question doctrine; federal preemption under Boyle v.
United Technologies Corp., 487 U.S. 500 (1988), and Saleh
v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009); and derivative
absolute immunity. The district court denied the contractor’s
motion, concluding, among other things, that this case was
essentially a civil tort action against a non-governmental
entity and "[i]n an ordinary tort suit against a non-
governmental entity, [t]he department to whom this issue has
been constitutionally committed is none other than our own—
the Judiciary, which strongly suggests that the political ques-
tion doctrine does not apply" (internal quotation marks omit-
ted). J.A. 852. The court also stated that "[t]he grant of
immunity outlined in Boyle was limited to the principles
underlying the ‘discretionary function’ exception to the [Fed-
eral Tort Claims Act]" and that Boyle did not "suggest that all
of the [Federal Tort Claims Act] exceptions should be incor-
porated into government contractor immunity." J.A. 874.
Finally, it concluded that it was too early to dismiss the com-
plaint on the basis of derivative absolute immunity because
discovery might end up supporting the plaintiffs’ position that
"Defendants were not operating under the authority of the
Government in committing the alleged acts of torture, but
AL-QURAISHI v. L-3 SERVICES, INCORPORATED 5
were instead acting of their own volition. If Defendants are
found to have been acting outside the scope of their contracts
and not on behalf of the sovereign when they committed the
allegedly tortious acts, then they would not be entitled to
derivative sovereign immunity." J.A. 867. See Al-Quraishi v.
Nakhla, 728 F. Supp. 2d 702 (D. Md. 2010).
On the contractor’s appeal, we reverse and remand with
instructions to dismiss this case for the reasons given in Al-
Shimari v. CACI International. We conclude that the plain-
tiffs’ state law claims are preempted by federal law and dis-
placed by it, as articulated in Saleh, 580 F.3d at 8-12.
As an additional issue in this case, the plaintiffs challenge
our jurisdiction to decide these issues on L-3 Services’ inter-
locutory appeal. They contend that all of the requirements for
collateral order review have not been satisfied. See Will v.
Hallock, 546 U.S. 345, 349 (2006). They assert that the dis-
trict court’s order denying L-3 Services’ motion to dismiss
based on immunity was tentative and incomplete, as the court
deferred making a decision until the completion of discovery.
They maintain further that any immunity would depend on a
resolution on the merits of aspects of the case, especially
whether L-3 Services complied with military instructions and
commands.
L-3 Services responds by arguing that the plaintiffs’ argu-
ments overlook the fact that the district court’s opinion
included final determinations that "law of war 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." Moreover, it argues, to deny
immunity now would subject it to discovery and perhaps trial,
against which immunity is designed to protect it. See
McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1339
(11th Cir. 2007). In addition, L-3 Services contends that the
district court’s order denying its motion to dismiss must be
reviewed now "to avoid judicial interference with military
6 AL-QURAISHI v. L-3 SERVICES, INCORPORATED
discipline and sensitive military judgments" (quoting
McMahon, 502 F.3d at 1339, 1340 n.7). And with respect to
its defenses based on separation of powers and nonjusticia-
bility, it contends that to the extent that these defenses may
not be characterized as immunity defenses, for which the
Supreme Court has clearly authorized immediate appeal, the
defenses are nonetheless inextricably intertwined with its
immunity claims, giving us pendent appellate jurisdiction
over those issues. See Jenkins v. Medford, 119 F.3d 1156,
1159 & n.2 (4th Cir. 1997).
As a baseline for our discussion, we recognize that jurisdic-
tion of the courts of appeals extends, as a general matter, only
to appeals from "final decisions of the district courts of the
United States." 28 U.S.C. § 1291 (emphasis added); but see
id. § 1292 (listing exceptions). This proscription, however,
has long been construed to allow appeals from "orders other
than final judgments when they have a final and irreparable
effect on the rights of the parties." Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 545 (1949). This construction of
§ 1291 is a "practical" one, recognizing that the "authority of
the Courts of Appeals to review ‘all final decisions of the dis-
trict courts’ includes appellate jurisdiction over ‘a narrow
class of decisions that do not terminate the litigation,’ but are
sufficiently important and collateral to the merits that they
should ‘nonetheless be treated as final.’" Will, 546 U.S. at 347
(quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511
U.S. 863, 867 (1994)). Thus, under this collateral order doc-
trine, the courts of appeals have jurisdiction over an interlocu-
tory appeal of an order that (1) conclusively determines a
disputed question, (2) resolves an important issue completely
separate from the merits of the action, and (3) would be effec-
tively unreviewable on appeal from a final judgment. Will,
546 U.S. at 349.
The collateral order doctrine is intended to be modest in
scope so as to prevent it from
AL-QURAISHI v. L-3 SERVICES, INCORPORATED 7
overpower[ing] the substantial finality interests
§ 1291 is meant to further: judicial efficiency, for
example, and the "sensible policy ‘of avoid[ing] the
obstruction to just claims that would come from per-
mitting the harassment and cost of a succession of
separate appeals from the various rulings to which a
litigation may give rise.’"
Will, 546 U.S. at 350 (quoting Firestone Tire & Rubber Co.
v. Risjord, 449 U.S. 368, 374 (1981)). Thus, the power of
courts of appeals does not extend to "appeals, even from fully
consummated decisions, where they are but steps towards
final judgment in which they will merge." Cohen, 337 U.S. at
546. Rather, appeals under the doctrine are generally confined
to cases involving a "particular value of a high order," includ-
ing "honoring the separation of powers, preserving the effi-
ciency of government and the initiative of its officials, [or]
respecting a State’s dignitary interests." Will, 546 U.S. at 352;
see also United States v. Myers, 593 F.3d 338 (4th Cir. 2010).
The Supreme Court has recognized courts of appeals’ juris-
diction under the collateral order doctrine in a number of con-
texts. For example, citing separation-of-powers interests, the
Court has held that denying the President absolute immunity
is immediately appealable. Nixon v. Fitzgerald, 457 U.S. 731
(1982). Similarly, the Court has recognized that denying Elev-
enth Amendment immunity is immediately appealable
because appealability is necessary to protect States’ immunity
from suit and allow them to avoid both the burdens and the
indignities of suit. Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139 (1993). Likewise, the
denial of qualified immunity is immediately appealable where
it turns on a question of law because of the public interest in
allowing government officials to take legitimate action "with
independence and without fear of consequences." Mitchell v.
Forsyth, 472 U.S. 511, 525 (1985) (quoting Harlow v. Fitz-
gerald, 457 U.S. 800, 819 (1982)). And the Court has held
that the denial of a double jeopardy claim is immediately
8 AL-QURAISHI v. L-3 SERVICES, INCORPORATED
appealable in order to protect the individual from a second
trial and the abuse of the government’s superior
power. Abney v. United States, 431 U.S. 651 (1977).
Consistent with this line of cases, we conclude that the
interlocutory appeal in this case falls within that "narrow
class" of cases that are immediately appealable. 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’ com-
plaint, in essence, alleges that military functions carried out
conspiratorially in a war zone by military personnel and civil-
ian 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 prac-
tices in a way that could not be remedied in an appeal from
the final judgment. Second, the district court effectively deter-
mined 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 recog-
nized 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 jurisdic-
tion in this case, we conclude that the federal preemption doc-
trine underlying our opinion represents a strong public policy
interest, where wartime actions within a United States mili-
tary prison are being challenged in a civilian court under state
tort law.
The dissent recognizes that the existence of such a strong
public policy is "a necessary prerequisite to a collateral order
AL-QURAISHI v. L-3 SERVICES, INCORPORATED 9
appeal," but it argues that recognizing the public policy inter-
est is not the "end of the inquiry." Post, at 13 n.3. Instead, it
focuses on what it asserts is "‘[t]he crucial question,"
"‘whether deferring review until final judgment so imperils
the interest as to justify the costs of allowing immediate
appeal of the entire class of relevant orders.’" Id. (quoting
Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599, 606
(2009)). Thus, according to the dissent, its position to defer
final review in this case rests on its conclusion that deferring
review would not sufficiently imperil the public policy inter-
est to justify immediate appeal.
In reaching this conclusion, however, the dissent overlooks
the fact that the interest presented by this case is not simply
to prevent liability for government contractors but, more
broadly and importantly, the "elimination of tort from the bat-
tlefield, 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." Saleh, 580 F.3d at 7. Relying primarily on traditional
preemption doctrines and Boyle preemption under the discre-
tionary functions exception to the Federal Tort Claims Act,
post, at 17-18, the dissent fails to recognize that "the nature
of the conflict in this case is somewhat different from that in
Boyle," Saleh, 580 F.3d at 7. Although the dissent quotes
from Judge Garland’s dissent in Saleh in order to describe the
interest at stake, post, at 20-21, the majority opinion in Saleh
demonstrates that the interest in battlefield preemption is the
complete eradication of the "imposition per se" of tort law,
that is the complete removal of even the possibility of suit
from the battlefield. 580 F.3d at 7.
"Arguments for preemption of state prerogatives are partic-
ularly compelling in times of war," Saleh, 580 F.3d at 11, and
the interest in freeing military operatives, including contrac-
tors, from even the specter of applying the different tort laws
of the 51 States is certainly sufficiently robust to justify the
costs of allowing an immediate appeal. Just as the immediate
10 AL-QURAISHI v. L-3 SERVICES, INCORPORATED
appeal of a denial of qualified immunity is necessary to allow
public officials to act without fear of consequence and the
immediate appeal of the denial of a double jeopardy claim is
necessary to protect an individual from the exertion of an
unjustified power to prosecute on the part of the government,
an appeal from the denial of immunity and preemption in the
battlefield context must be immediately appealable in order to
insulate the battlefield from the unjustified exertion of power
by the courts of the 51 States and to free military operatives
from the fear of possible litigation and the hesitancy that such
fear engenders. Despite the dissent’s expressed confidence
that "[t]here is no risk that military personnel will be improp-
erly haled into court or their depositions taken," post, at 22,
we do not share this confidence when the complaint alleges
that these very military personnel conspired with the defen-
dants in perpetrating the alleged misconduct. We are unwill-
ing to take that risk when such a compelling interest is
imperiled.
For these reasons, we reject plaintiffs’ challenge to our
jurisdiction; reverse the district court’s order denying L-3 Ser-
vices’ motion to dismiss; and remand with instructions to dis-
miss.
REVERSED AND REMANDED
WITH INSTRUCTIONS
KING, Circuit Judge, dissenting:
Because we lack jurisdiction to decide whether the plain-
tiffs’ state law torture claims are preempted by federal law, I
am compelled to dissent. Contrary to the majority’s holding,
the collateral order doctrine offers no basis for the majority’s
preemption ruling. Although the district court’s denial of
immunity to defendant L-3 Services, Inc., under the laws of
war might afford us jurisdiction to address that discrete issue,
the majority declines to so resolve this appeal. Rather, the
majority disposes of the plaintiffs’ state law claims solely on
AL-QURAISHI v. L-3 SERVICES, INCORPORATED 11
the ground that they are preempted by federal law. An inter-
locutory denial of dismissal for preemption, however, fails to
satisfy the exacting requirements for collateral order review.
Moreover, L-3’s assertion of a preemption defense is not suf-
ficiently interconnected with the immunity issue that both
ought to be definitively resolved prior to moving forward with
the litigation. Consequently, the preemption aspect of L-3’s
appeal should be dismissed.1
I.
A.
The United States military (the "government") contracted
with L-3 to provide civilian translators to assist with interro-
gating Iraqi detainees at Abu Ghraib prison and approxi-
mately twenty other government facilities in Iraq. The
plaintiffs are seventy-two Iraqi citizens who were detained at
these facilities. According to the operative Second Amended
Complaint (the "Complaint"), the allegations of which we are
bound to take as true at this stage of the proceedings, the
plaintiffs suffered torture and other mental and physical mis-
treatment at the hands of L-3.
In particular, L-3’s translators "have admitted . . . to partici-
pating in interrogations where detainees were hit, kept in
stress positions until they collapsed, made to do push-ups
until they collapsed, kept awake for long periods, exposed to
extreme temperatures and choked by the throat." Complaint ¶
427.2 In addition, some of the plaintiffs were sexually
1
Dismissal obviously would end the appeal without any consideration
of L-3’s preemption defense. Were I to address the merits thereof, I would
conclude that the plaintiffs’ claims are not preempted, for the reasons I
have discussed in my dissenting opinion in our companion case of Al Shi-
mari v. CACI International, Inc., ___ F. 3d ___, No. 09-1335 (4th Cir.
Sept. 21, 2011).
2
The Complaint is found at J.A. 14-85. (Citations herein to "J.A. ___"
refer to the contents of the Joint Appendix filed by the parties to this
appeal.)
12 AL-QURAISHI v. L-3 SERVICES, INCORPORATED
assaulted and their genitals abused; others were grossly
humiliated, threatened with death and rape, and subjected to
mock executions. See generally id. ¶¶ 9-412. The plaintiffs
assert that their torture and mistreatment were the result of a
conspiracy among myriad persons, including L-3, its employ-
ees, and other private contractors. See id. ¶¶ 424-44. The con-
spiracy is alleged to have also involved certain government
personnel, who, according to the plaintiffs, acted indepen-
dently of and contrary to government directives. See id. ¶¶
430-56.
In accordance with Rules 12(b)(1) and 12(b)(6) of the Fed-
eral Rules of Civil Procedure, L-3 moved to dismiss the Com-
plaint, asserting, among other things: (1) that it was immune
to suit under the laws of war; (2) that it was otherwise entitled
to immunity derived from its association with the sovereign;
and (3) that the suit raised a nonjusticiable political question.
Prior to the hearing on the motion, the district court invited
argument on a fourth ground endorsed by the District of
Columbia Circuit in a case arising out of similar circum-
stances: that the plaintiffs’ state law claims were preempted,
having arisen in the context of combat activities conducted in
the federal interest. See Saleh v. Titan Corp., 580 F.3d 1 (D.C.
Cir. 2009).
Following the hearing, the district court denied the motion
to dismiss in all respects. See Al-Quraishi v. Nakhla, 728 F.
Supp. 2d 702 (D. Md. 2010). In so ruling, the court squarely
rejected L-3’s threshold argument, observing in part that "[a]
defendant can only claim immunity under the laws of war if
its actions comport with the laws of war." Id. at 722. The
court noted that the alleged torture and other despicable acts,
"if proven, clearly exceed the immunities ordinarily afforded
to belligerents." Id. at 723. The court then ascertained that L-
3’s entitlement to derivative sovereign immunity — predi-
cated in part upon whether the company acted within the
scope of its agreement with the government — could not be
accurately gauged without access to the written contract,
AL-QURAISHI v. L-3 SERVICES, INCORPORATED 13
which was not before the court at the dismissal stage. See id.
at 735. With respect to L-3’s argument that the case should be
dismissed as implicating a political question, the district court
concluded that the dispute was properly justiciable as "an
ordinary tort suit against a private entity." Id. at 726 (internal
quotation marks omitted). Finally, the court declined to follow
Saleh, disagreeing with L-3 that the plaintiffs’ state law
claims were preempted by federal law. Id. at 738-39.
B.
The majority treats the district court’s interlocutory ruling
denying L-3’s motion to dismiss as an appealable collateral
order within the meaning of Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541 (1949). As the majority recognizes,
such an order must "[1] conclusively determine the disputed
question, [2] resolve an important issue completely separate
from the merits of the action, and [3] be effectively unreview-
able on appeal from a final judgment." Will v. Hallock, 546
U.S. 345, 349 (2006) (alterations in original) (internal quota-
tion marks omitted). The majority surmises that all three pre-
requisites are satisfied here. According to the majority, the
preliminary denial of Saleh preemption "conclusively" strips
it of its efficacy in relieving L-3 of the burdens of further liti-
gation. Ante at 8. The majority says further that "the disputed
questions are collateral to resolution on the merits," id., evi-
dently on the assumption that the plaintiffs would be entitled
to recover should their proof match their allegations.3 More-
over, the majority characterizes this appeal as "present[ing]
3
Apparently mindful of the Will Court’s admonition that a collateral
issue be not only separate but important, the majority stresses that "the
federal preemption doctrine underlying our opinion represents a strong
public policy interest, where wartime actions within a United States mili-
tary prison are being challenged in a civilian court under state tort law."
Ante at 8. Although the presence of a "substantial public interest," or
"some particular value of a high order," is a necessary prerequisite to a
collateral order appeal, Will, 546 U.S. at 352-53, the identification of such
a public interest is not the end of the inquiry. As the Supreme Court
explained in Mohawk Industries, Inc. v. Carpenter, "[t]he crucial question
. . . is not whether an interest is important in the abstract; it is whether
deferring review until final judgment so imperils the interest as to justify
the cost of allowing immediate appeal of the entire class of relevant
orders." 130 S. Ct. 599, 606 (2009).
14 AL-QURAISHI v. L-3 SERVICES, INCORPORATED
substantial issues relating to federal preemption, separation-
of-powers, and immunity that could not be addressed on
appeal from final judgment." Id. at 8.
As to this last point, the majority characterizes the Com-
plaint as alleging "that military functions carried out conspira-
torially in a war zone by military personnel and civilian
contract employees violated rules and norms adopted for
those functions by the military." Ante at 8. Permitting the case
to proceed before the district court would, according to the
majority, "allow judicial scrutiny of military policies and
practices in a way that could not be remedied in an appeal
from the final judgment." Id. at 8. The majority therefore con-
cludes that we possess jurisdiction over the district court’s
denial ruling, and it reverses and remands the cause for dis-
missal exclusively on Saleh preemption grounds.4
II.
The primary problem with the majority’s approach is that
the lone underpinning of its substantive ruling — Saleh pre-
emption — affords no basis whatsoever for its exercise of
jurisdiction. Although the majority cites several instances
where denials of various forms of immunity have been found
to constitute appealable rulings for purposes of the collateral
order doctrine, see ante at 8-9, a preemption defense is not the
equivalent of an immunity to suit. Indeed, the accepted princi-
ples attendant to the doctrine plainly demonstrate that recog-
nizing the denial of L-3’s preemption defense as a new class
of collateral order reflects an impermissibly indulgent view of
appellate jurisdiction.
4
The majority concludes specifically "that the plaintiffs’ state law
claims are preempted by federal law and displaced by it." Ante at 5
(emphasis added). Accordingly, I do not understand the majority to have
disturbed that part of the district court’s ruling declining to dismiss the
plaintiffs’ federal law claims pursuant to the Alien Tort Statute, 28 U.S.C.
§ 1350. See Al-Quraishi, 728 F. Supp. 2d at 741-60.
AL-QURAISHI v. L-3 SERVICES, INCORPORATED 15
A.
The final-judgment rule codified in 28 U.S.C. § 1291 is a
venerable jurisdictional principle. Although the collateral
order doctrine imparts a "practical . . . construction" on
§ 1291, Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949), the Supreme Court has charged the appellate
courts with keeping a tight rein on the Cohen exceptions. We
are therefore bound to maintain "a healthy respect for the vir-
tues of the final-judgment rule." Mohawk Indus., Inc. v. Car-
penter, 130 S. Ct. 599, 605 (2009); see also Will v. Hallock,
546 U.S. 345, 350 (2006) ("[W]e have not mentioned apply-
ing the collateral order doctrine recently without emphasizing
its modest scope.").
The Supreme Court’s concern, as expressed through its
consistent admonitions, is amply justified. First, the appellate
courts are of limited jurisdiction, and the review of prejudg-
ment appeals as a matter of course would "undermine[ ] effi-
cient judicial administration and encroach[ ] upon the
prerogatives of district court judges, who play a special role
in managing ongoing litigation." Mohawk, 130 S. Ct. at 605
(internal quotation marks omitted). 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." Firestone Tire & Rubber
Co. v. Risjord, 449 U.S. 368, 374 (1981) (internal quotation
marks omitted). Moreover, a readily available alternative
exists: the "safety valve" provided by discretionary interlocu-
tory review under 28 U.S.C. § 1292(b) is frequently a "better
vehicle for vindicating [certain] serious . . . claims than the
blunt, categorical instrument of [a] § 1291 collateral order
appeal." Digital Equip. Corp. v. Desktop Direct, Inc., 511
U.S. 863, 883 (1994). Accordingly, the collateral order doc-
trine should "never be allowed to swallow the general rule
that a party is entitled to a single appeal, to be deferred until
16 AL-QURAISHI v. L-3 SERVICES, INCORPORATED
final judgment has been entered." Digital Equip., 511 U.S. at
868 (citation omitted).
B.
1.
Although a properly appealable collateral order must of
course satisfy all of the Cohen requirements, its hallmark is
the encapsulation of a right whose abridgement is "effectively
unreviewable" should appellate review await final judgment.
See Henry v. Lake Charles Am. Press LLC, 566 F.3d 164, 177
(5th Cir. 2009) (describing unreviewability as "the fundamen-
tal characteristic of the collateral order doctrine" (citation
omitted)). The "critical question" in determining whether the
right at issue is effectively unreviewable in the normal course
"is whether the essence of the claimed right is a right not to
stand trial" — that is, whether it constitutes an immunity from
suit. Van Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988)
(internal quotation marks omitted). Absent an immediate
appellate review of the denial of an immunity claim, the right
not to stand trial "would be irretrievably lost." Id. (internal
quotation marks omitted). By contrast, if the right at issue is
one "not to be subject to a binding judgment of the court" —
that is, a defense to liability — then the right can be vindi-
cated just as readily on appeal from the final judgment, and
the collateral order doctrine does not apply. Id. at 527.
In assessing whether the right sought to be protected consti-
tutes a true immunity and not merely a defense, "§ 1291
requires [the court] of appeals to view claims of a ‘right not
to be tried’ with skepticism, if not a jaundiced eye." Digital
Equip., 511 U.S. at 873. As the Supreme Court has cautioned,
"[o]ne must be careful . . . not to play word games with the
concept of a ‘right not to be tried,’" Midland Asphalt Corp.
v. United States, 491 U.S. 794, 801 (1989), as "virtually every
right that could be enforced appropriately by pretrial dismissal
AL-QURAISHI v. L-3 SERVICES, INCORPORATED 17
might loosely be described as conferring a right not to stand
trial," Digital Equip., 511 U.S. at 873.
2.
The district court’s denial of L-3’s preemption claim falls
squarely on the side of being a defense to liability and not an
immunity from suit. In today’s companion case, Al Shimari v.
CACI International, Inc., ___ F.3d. ___, No. 09-1335, slip op.
at 8 (4th Cir. Sept. 21, 2011), the majority forthrightly
acknowledges that the Supreme Court in Boyle v. United
Technologies Corp., 487 U.S. 500 (1988), from which Saleh
preemption is derived, "did not rely on any act of Congress
to animate the preemption" recognized therein. Al Shimari,
slip op. at 8. Boyle preemption (and, thus, Saleh preemption)
is, ipso facto, not immunity, which, according to the Supreme
Court, must be "an explicit statutory or constitutional guaran-
tee that trial will not occur." Midland Asphalt, 489 U.S. at 801
(emphasis added).5 Indeed, the only reference to private con-
tractors in the statute invoked by the majority, the Federal
Tort Claims Act (the "FTCA"), expressly excludes such con-
tractors from the sovereign immunity of the United States. See
28 U.S.C. § 2671 ("[T]he term ‘Federal agency’ . . . does not
5
The Supreme Court has properly dismissed the mistaken notion that
Midland Asphalt’s "explicit . . . guarantee" requirement is in tension with
the immediate appealability of an order denying qualified immunity, a
term that by its inherent equivocalness, appears to connote only an implicit
guarantee against the burdens of trial. Any tension can only be character-
ized as chimerical, however, in light of qualified immunity’s "good pedi-
gree in public law," which more than makes up for its implicitness. Digital
Equip., 511 U.S. at 875. The sheer novelty of the majority’s rule deprives
it of a comparable pedigree. Moreover, the argument that an immunity
need not be explicit in order for jurisdiction to lie under the collateral
order doctrine "only leaves [the proponent of jurisdiction] with the unenvi-
able task of explaining why other rights that might fairly be said to include
an (implicit) ‘right not to stand trial’ aspect are less in need of protection
by immediate review, or more readily vindicated on appeal from final
judgment, than" the right the proponent asserts is an implicit right to be
free from suit. Id. at 875-76.
18 AL-QURAISHI v. L-3 SERVICES, INCORPORATED
include any contractor with the United States."). In these cir-
cumstances, it is impossible to overstate the violence that the
majority does to the Court’s explicit guarantee requirement.6
Two of our sister circuits have concluded that preemption
— animated by either the FTCA’s exception for discretionary
functions or its exception for combatant activities — does not
amount to an immunity from suit. See Rodriguez v. Lockheed
Martin Corp., 627 F.3d 1259 (9th Cir. 2010) (discretionary
functions exception); Martin v. Halliburton, 618 F.3d 476
(5th Cir. 2010) (combatant activities exception). The collat-
eral order doctrine is not applicable because the denial of a
preemption claim is effectively reviewable on appeal from a
final judgment. That is, because the right recognized by Boyle
was merely a "defense to judgment" — and not, like qualified
immunity, a "right not to be required to go to trial" — nothing
is irretrievably lost by the lack of an immediate appeal from
an adverse pretrial ruling. Rodriguez, 627 F.3d at 1266. The
Ninth Circuit emphasized that Boyle did not devise a new spe-
cies of immunity, but merely recognized that "‘whether the
facts establish the conditions for the [government contractor]
defense is a question for the jury.’" Rodriguez, 627 F.3d at
1265 (quoting Boyle, 487 U.S. at 514).7
6
The majority acknowledges, at least implicitly, that Saleh preemption
is not immunity, but it nonetheless equates the two for jurisdictional pur-
poses by insisting that "the denial of immunity and preemption in the bat-
tlefield context must be immediately appealable . . . to free military
operatives from the fear of possible litigation and the hesitancy that such
fear engenders." Ante at 10. The majority thus indicates its agreement with
the Saleh majority that interlocutory appeals in contractor cases promote
the public interest in the "‘elimination of tort from the battlefield.’" Ante
at 9 (quoting Saleh, 580 F.3d at 7). It is, however, difficult to see how the
majority’s decision accomplishes its stated goal. Abu Ghraib, when the
plaintiffs were there, was not a "battlefield." There are no allegations of
armed skirmishes taking place in its corridors; indeed, the facility was
under secure military control. That being the case, it would have been to
everyone’s benefit had the civilian contractors given some thought to
being sued, or hesitated in the slightest before torturing the plaintiffs.
7
Indeed, the Boyle Court repeatedly framed the preemption it recog-
nized as creating a mere defense to liability. See, e.g., 487 U.S. at 507
 AL-QURAISHI v. L-3 SERVICES, INCORPORATED 19
Similarly, the Fifth Circuit in Martin concluded that "the
combatant activities exception is not subject to a sui generis
exemption from the ordinary jurisdictional requirements for
denials of preemption claims." 618 F.3d at 487. The court
acknowledged that Boyle preemption is underpinned by "a
respect for the interests of the Government in military mat-
ters," but reasoned that those interests can be safeguarded
without resort to interlocutory review. Id. at 488. For exam-
ple, a district court "should take care to develop and resolve
such defenses at an early stage while avoiding, to the extent
possible, any interference with military prerogatives." Id.
Additionally, a trial court should consider "limiting discovery
initially to such defenses" and "certifying orders denying [the]
defense[ ] where the law is unsettled but, after refinement on
appeal, might warrant dismissing plaintiffs’ claims." Id.
3.
The majority is mistaken when it insists that Boyle preemp-
tion "operates more in effect like sovereign immunity," in that
it "leaves no federal law addressing the claim." Al Shimari,
slip op. at 8. To the contrary, the Supreme Court confirmed
that federal common law governed the underlying dispute in
Boyle. The Court explained that "we have held that a few
areas, involving uniquely federal interests, are so committed
. . . to federal control that state law is pre-empted and
replaced, where necessary, by federal law of a content pre-
scribed (absent explicit statutory directive) by the courts — so
called federal common law." 487 U.S. at 504 (emphasis
("The imposition of liability on Government contractors [in the military
procurement context] will directly affect the terms of Government con-
tracts."); id. at 511-12 ("The financial burden of judgments against the
contractors would ultimately be passed through . . . to the United States
itself."); id. at 512 ("[S]tate law which holds Government contractors lia-
ble for design defects in military equipment does in some circumstances
present a ‘significant conflict’ with federal policy and must be dis-
placed.").
20 AL-QURAISHI v. L-3 SERVICES, INCORPORATED
added). The Boyle Court then articulated the federal common
law rule providing military contractors with a complete
defense against design-defect claims, on condition that they
satisfy a three-part test. See id. at 512.
Even if the majority were correct in drawing parallels
between Boyle preemption and sovereign immunity, any
resemblance would be superficial and of no moment. Though
Boyle preemption, like sovereign immunity, may be invoked
to bar state law claims, the encapsulated rights serve distinct
purposes. State law claims are preempted under Boyle simply
because imposing liability in such situations is irreconcilable
with uniquely federal interests. Indeed, in Al Shimari, the
majority describes Boyle preemption as merely insulating
contractors "from state law liability where such protection
was necessary to safeguard uniquely federal interests." Al Shi-
mari, slip op. at 7-8 (emphasis added).
The right conferred through federal preemption, in other
words, is the right not to be bound by a judgment stemming
from state law duties. By contrast, immunity is a limited pro-
tection against the burden of litigation altogether. See Mitch-
ell v. Forsyth, 472 U.S. 511, 525-27 (1985). Further, as the
Rodriguez court explained, "[a]lthough the source of the gov-
ernment contractor defense [recognized in Boyle] is the
United States’ sovereign immunity," the defense is not itself
a species thereof. 627 F.3d at 1265. Instead, it "is only a cor-
ollary financial benefit flowing from the government’s sover-
eign immunity." Id. Accordingly, Boyle’s "government
contractor defense does not confer sovereign immunity on
contractors," and as such, the denial of the defense is not
immediately appealable. Id. at 1265 (internal quotation marks
omitted).
It is no answer for the majority to raise the specter of a
more generalized conflict stemming from the FTCA’s comba-
tant activities exception. First, any such conflict is not attrib-
utable to some inherent tension between state law claims and
AL-QURAISHI v. L-3 SERVICES, INCORPORATED 21
federal interests, but rather only to the specific test the major-
ity chooses to adopt. That is, assessing preemption based on
"the degree of integration that, in fact, existed between" con-
tractors themselves and the military, rather than simply based
on the contracts and the military’s regulations, "invite[s] the
wide-ranging judicial inquiry . . . that the court rightly
abjures." Saleh v. Titan Corp., 580 F.3d 1, 34 (D.C. Cir.
2009) (Garland, J., dissenting).
Second, assessing collateral order appealability in a cate-
gorical sense, as the law requires, leads me to conclude that
the denial of a preemption claim stemming from the comba-
tant activities exception would not invariably (or even fre-
quently) entail significant scrutiny of sensitive military issues.8
Fundamentally, there is little intrusion because the court’s
inquiry focuses on whether the contractor complied with the
government’s specifications and instructions, and not the wis-
dom or correctness thereof. The Boyle and Saleh decisions
themselves well illustrate the lack of intrusion that would
result from deferring review until after entry of a final judg-
ment. Boyle, for example, involved an appeal from a jury ver-
dict for the plaintiff, while "the two appeals in Saleh reached
the D.C. Circuit using the normal machinery of §§ 1291 and
1292(b)." Martin, 618 F.3d at 488.
Indeed, the district court in Saleh had conducted extensive
discovery "regarding the military’s supervision of the contract
employees as well as the degree to which such employees
were integrated into the military chain of command," 580
F.3d at 4, with none of the ill effects foretold by the majority.
It is striking that the government — which presumably can
8
Whether to recognize an order as collateral is not "an individualized
jurisdictional inquiry," but rather is based "on the entire category to which
a claim belongs." Mohawk, 130 S. Ct. at 605. It follows that "the issue of
appealability under § 1291 is to be determined . . . without regard to the
chance that the litigation at hand might be speeded, or a particular justice
averted, by a prompt appellate court decision." Digital Equip., 511 U.S.
at 868.
22 AL-QURAISHI v. L-3 SERVICES, INCORPORATED
and will look after its own interests — has not sought to inter-
vene in this litigation. Quite the contrary: the Solicitor Gen-
eral, writing at the Supreme Court’s invitation in the Saleh
certiorari proceedings, expressed ambivalence toward the
Saleh decision, describing it as "unclear and imprecise and,
depending on how it is read, potentially misguided." Br. of
United States as Amicus Curiae Opposing Certiorari at 7,
Saleh v. Titan Corp., No. 09-1313 (U.S. May 2011), cert.
denied, 79 U.S.L.W. 3727 (June 27, 2011). Notably, despite
significant discovery in Saleh as to the contractor-military
relationship, the Solicitor General did not assert that discov-
ery regarding whether a state law claim is preempted would
so imperil federal interests as to justify collateral order review.9
Third, even if sensitive government interests were impli-
cated here, they would fail to warrant collateral order review.
As the Fifth Circuit explained in Martin, a district court pos-
sesses a variety of tools by which it can prevent undue intru-
sion: limiting discovery to the preemption defense; resolving
the defense as early as possible; and, where appropriate, certi-
fying appeal of an order denying the preemption defense for
appellate review pursuant to 28 U.S.C. § 1292(b). There is no
risk that military personnel will be improperly haled into
court or their depositions taken in suits against private con-
tractors, because "[w]here discovery would hamper the mili-
9
The majority’s fear that not permitting L-3 to pursue an immediate
appeal will result in impermissible judicial scrutiny of government poli-
cies is unfounded. This fear appears to stem from the plaintiffs’ allegation
of a conspiracy between L-3, its employees, and certain military person-
nel. The conspiracy allegation, however, does not transform this civil
action into a challenge to the government’s policy or interests, or into an
attempt to hold its contractors liable for acting in accord with governmen-
tal decisions. Just as in Saleh, where some of the plaintiffs alleged a simi-
lar conspiracy, "there is no allegation, and no evidence, that" the "low-
level soldiers" alleged to be acting in conspiracy with contractor personnel
"had any control, de jure or de facto, over the" contractor personnel. 580
F.3d at 20 (Garland, J., dissenting). As such, these proceedings — like
Saleh — constitute direct challenges only to "the unlawful and unautho-
rized actions of private contractors." Id.
AL-QURAISHI v. L-3 SERVICES, INCORPORATED 23
tary’s mission, district courts can and must delay it." Saleh,
580 F.3d at 29 (Garland, J., dissenting) (citing, inter alia,
Watts v. SEC, 482 F.3d 501, 508-09 (D.C. Cir. 2007)). Other
procedural and substantive rules, such as Rule 45 of the Fed-
eral Rules of Civil Procedure and the state secrets doctrine,
also adequately safeguard protect military interests. See id. at
29 n.18 (Garland, J., dissenting). Accordingly, just as the
majority’s concern "does not require across-the-board pre-
emption," id., even less so does it require the recognition of
a new class of collateral order.
III.
A.
Of the remaining grounds for dismissal before the district
court, only the denial of immunity under the laws of war
could afford a basis for L-3 to appeal. The interlocutory
denial of derivative sovereign immunity did not conclusively
resolve that issue, in that the court reserved final judgment
pending production of the contract. See Will v. Hallock, 546
U.S. 345, 349 (2006) (confining review of non-final orders to
important issues conclusively determined, separate from the
merits, and effectively unreviewable if not immediately
appealed).10 The district court’s rejection of L-3’s political
10
Before jurisdiction can be invoked under the collateral order doctrine,
a district court must issue a "fully consummated decision" that constitutes
"a complete, formal, and . . . final" resolution of the issue. Abney v. United
States, 431 U.S. 651, 659 (1977). In other words, the ruling must be "the
final word on the subject addressed." Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 867 (1994). An issue has not been conclusively
determined where a district court "ma[kes] clear that its decision [is] a ten-
tative one, . . . and that it might well change its mind" after further pro-
ceedings. Jamison v. Wiley, 14 F.3d 222, 230 (4th Cir. 1994).
Fundamentally, a court is entitled to have before it a proper record, suffi-
ciently developed through discovery proceedings, to accurately assess an
immunity claim. And a party, even one that eventually is shown to be enti-
tled to an immunity by such discovery, must submit to the burdens of liti-
24 AL-QURAISHI v. L-3 SERVICES, INCORPORATED
question defense fails to satisfy the Will threshold in a differ-
ent regard, in that the court’s decision is subject to effective
review following final judgment. See Doe v. Exxon Mobil
Corp., 473 F.3d 345, 351 (D.C. Cir. 2007).11 The political
question defense, albeit premised on the fundamental precept
of separation of powers, is no different from any other
defense for purposes of the collateral order doctrine. An order
denying its applicability at the dismissal stage is appealable
only if it implicates an immunity from suit. See id. (citing
Midland Asphalt Corp. v. United States, 491 U.S. 794, 801
(1989)).
B.
Assuming, arguendo, the appealability of the district
court’s denial ruling on laws-of-war immunity grounds, we
yet lack pendent jurisdiction to decide the viability of the
Saleh preemption defense. See United States v. Wampler, 624
F.3d 1330, 1335 (10th Cir. 2010) ("[T]he [Supreme] Court
gation until a court is sufficiently informed to rule. Notwithstanding the
broad preemptive principle of Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir.
2009), the court must have before it the contract to determine whether the
plaintiffs’ claims are preempted. See Al-Quraishi v. Nakhla, 728 F. Supp.
2d 702, 741 n.11 (D. Md. 2010) (reasoning that contract could show that
"‘federal wartime policy-making’ was not behind Defendants’ alleged
actions," in which case plaintiffs’ "state law claims [would] not intrude
upon the preempted field").
11
In Doe, the D.C. Circuit was confronted with the same argument the
majority makes here: that the denial of a dismissal motion premised on the
separation of powers falls under the collateral order doctrine because an
immediate appellate review "is necessary to protect the executive branch
from judicial intrusion into sensitive foreign policy matters" that could not
be remedied on appeal from final judgment. 473 F.3d at 351. The D.C.
Circuit squarely rejected such a mistaken notion, however, explaining that
while the Supreme Court has "identif[ied] ‘honoring the separation of
powers’ as a value that could support a party’s interest in avoiding trial,
[the Court has] only d[one] so while discussing cases involving immu-
nity." Id.
AL-QURAISHI v. L-3 SERVICES, INCORPORATED 25
has told us that every issue presented in an interlocutory
appeal must fall within Cohen’s collateral-order exception
before we may review its merits; the courts of appeals possess
no ‘pendent’ jurisdiction permitting them to decide collateral
issues that fail to meet Cohen’s test.") (citing Abney v. United
States, 431 U.S. 651, 663 (1977) (quotation marks omitted)).
As we reiterated most recently in Rux v. Republic of Sudan,
461 F.3d 461, 475 (4th Cir. 2006), we have "consistently lim-
ited [our] application of pendent appellate jurisdiction to the
two circumstances outlined in" Swint v. Chambers County
Commission, 514 U.S. 35, 50-51 (1991). That is, we may
properly exercise pendent appellate jurisdiction only "(1)
when an issue is inextricably intertwined with a question that
is the proper subject of an immediate review[,] or (2) when
review of a jurisdictionally insufficient issue is necessary to
ensure meaningful review of an immediately appealable
issue." Id. Promoting judicial efficiency is, in and of itself,
simply not enough. See id.
Neither Swint scenario presents itself here. Preemption is
not "inextricably intertwined with" the question of L-3’s
immunity under the laws of war because those inquiries are
wholly distinct. The parties have framed the latter issue as
prompting an evaluation of the plaintiffs’ status as enemy
aliens or ordinary foreign nationals, and also necessitating a
determination of whether wartime immunity may be claimed
by a defendant alleged to have violated international norms.
Such considerations stand in stark contrast to those involved
in resolving the preemption defense, which requires us to dis-
cern the intent of domestic lawmakers, identify and weigh dis-
crete state and federal interests, and explore the degree to
which both may be accommodated. Manifestly, we could
decide whether the laws of war shield L-3 from submitting to
further proceedings without having to resolve whether it ulti-
mately cannot be held liable to the plaintiffs in that the federal
government’s need to effectively wage war trumps Mary-
land’s interest in governing the conduct of its citizens.
26 AL-QURAISHI v. L-3 SERVICES, INCORPORATED
IV.
Inasmuch as we are unquestionably bereft of jurisdiction —
either through direct or corollary means — to reach the pre-
emption question, I respectfully dissent from the majority’s
decision to reverse the district court’s judgment on that
ground.