                                          UNPUBLISHED

                             UNITED STATES COURT OF APPEALS
                                 FOR THE FOURTH CIRCUIT


                                             No. 19-1328


SUHAIL NAJIM ABDULLAH AL SHIMARI; SALAH HASAN NUSAIF JASIM
AL-EJAILI; ASA’AD HAMZA HANFOOSH AL-ZUBA’E,

                           Plaintiffs – Appellees,

                and

TAHA YASEEN ARRAQ RASHID; SA’AD HAMZA HANTOOSH AL-ZUBA’E,

                           Plaintiffs,

                v.

CACI PREMIER TECHNOLOGY, INC.,

                           Defendant and Third-Party Plaintiff – Appellant,

                and

TIMOTHY DUGAN; CACI INTERNATIONAL, INC.; L-3 SERVICES, INC.,

                           Defendants,

                v.

UNITED STATES OF AMERICA; JOHN DOES 1-60,

                           Third-Party Defendants.

------------------------

UNITED STATES OF AMERICA,

                           Amicus Curiae,
THE CENTER FOR JUSTICE AND ACCOUNTABILITY; RETIRED MILITARY
OFFICERS; EARTHRIGHTS INTERNATIONAL,

                    Amici Supporting Appellee.


Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:08-cv-00827-LMB-JFA)


Argued: July 10, 2019                                             Decided: August 23, 2019


Before FLOYD, THACKER, and QUATTLEBAUM, Circuit Judges.


Dismissed by unpublished opinion. Judge Floyd wrote the opinion, in which Judge
Thacker joined in full. Judge Quattlebaum wrote a separate opinion concurring in the
judgment.


ARGUED: John Frederick O’Connor, STEPTOE & JOHNSON LLP, Washington, D.C.,
for Appellant. Baher Azmy, CENTER FOR CONSTITUTIONAL RIGHTS, New York,
New York, for Appellees. H. Thomas Byron, III, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Amicus Curiae. ON BRIEF: Linda C. Bailey, Molly
B. Fox, STEPTOE & JOHNSON LLP, Washington, D.C.; William D. Dolan, III, LAW
OFFICES OF WILLIAM D. DOLAN, III, PC, Tysons Corner, Virginia, for Appellant.
Katherine Gallagher, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New
York; Jeena Shah, CUNY SCHOOL OF LAW, Long Island City, New York; Peter A.
Nelson, Matthew Funk, Jared S. Buszin, Jeffrey C. Skinner, PATTERSON BELKNAP
WEBB & TYLER LLP, New York, New York; Shereef Hadi Akeel, AKEEL &
VALENTINE, P.C., Troy, Michigan, for Appellees. Joseph H. Hunt, Assistant Attorney
General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; G. Zachary Terwilliger, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Amicus Curiae United States
of America. Daniel McLaughlin, Carmen Cheung, Elzbieta T. Matthew, THE CENTER
FOR JUSTICE & ACCOUNTABILITY, San Francisco, California, for Amicus The
Center for Justice & Accountability. Lawrence S. Lustberg, GIBBONS P.C., Newark, New
Jersey, for Amicus Retired Military Officers. Marco B. Simons, Michelle C. Harrison,
EARTHRIGHTS INTERNATIONAL, Washington, D.C., for Amicus EarthRights
International.


Unpublished opinions are not binding precedent in this circuit.
                                            2
FLOYD, Circuit Judge:

       Plaintiffs are Iraqi citizens who allege that they were tortured while detained at Abu

Ghraib.   Defendant CACI Premier Technology, Inc. (CACI) is a U.S. government

contractor that provided civilian interrogators at Abu Ghraib. Plaintiffs allege that CACI

interrogators abused them—or conspired in or aided and abetted their abuse—in ways

amounting to torture and other war crimes. In this interlocutory appeal, CACI asks us to

reverse the district court’s order denying it derivative sovereign immunity.

       We dismiss because we lack jurisdiction.         This conclusion follows from the

reasoning of a prior en banc decision in which we dismissed CACI’s interlocutory appeal

from the district court’s denial of similar defenses. Al Shimari v. CACI Int’l, Inc., 679 F.3d

205, 213 (4th Cir. 2012) (en banc). As relevant here, we explained that “fully developed

rulings” denying “sovereign immunity (or derivative claims thereof) may not” be

immediately appealable. Al Shimari, 679 F.3d at 217 n.3. Indeed, we have never held, and

the United States government does not argue, that a denial of sovereign immunity or

derivative sovereign immunity is immediately reviewable on interlocutory appeal.

       But even if a denial of derivative sovereign immunity may be immediately

appealable, our review is barred here because there remain continuing disputes of material

fact with respect to CACI’s derivative sovereign immunity defenses. ∗ See id. at 221

(distinguishing between the interlocutory appealability of immunity denials premised on



∗
  Even if we assumed that our jurisdiction would permit us to determine whether CACI
would be entitled to derivative sovereign immunity if the plaintiffs succeeded in proving
their factual allegations, we would not, and do not, have jurisdiction over a claim that the
plaintiffs have not presented enough evidence to prove their version of events. Id. at 221.
                                              3
“fact-based” versus “abstract” issues of law and noting that only the latter supply a proper

foundation for immediate appeal). Below, the district court concluded that even if the

United States were entitled to sovereign immunity, “it is not at all clear that CACI would

be extended the same immunity” due to continuing factual disputes regarding whether

CACI violated the law or its contract. Al Shimari v. CACI Premier Tech., Inc., 368 F.

Supp. 3d 935, 970 (E.D. Va. 2019). The district court also denied CACI’s motion for

summary judgment on plaintiffs’ ATS claims based on evidence showing “material issues

of fact that are in dispute,” J.A. 2238–50, and these factual disputes are substantially

related, if not identical, to the elements of CACI’s derivative sovereign immunity defense.

Given these continuing factual disputes, this appeal does not turn on an abstract question

of law and is not properly before us.

       For these reasons, this appeal is

                                                                              DISMISSED.




                                             4
QUATTLEBAUM, Circuit Judge, concurring in judgment:

       The order appealed involves important issues with potentially far-reaching

implications. Despite that, our precedent compels me to join the judgment of the Court. In

Al Shimari v. CACI International, Inc., our Court, sitting en banc, determined that the only

potential basis for interlocutory appeal here would be an appeal from an order on derivative

sovereign immunity that involves an abstract issue of law. Al Shimari v. CACI Int’l., Inc.,

679 F.3d 205, 220–22 (4th Cir. 2012) (en banc). CACI insists we have such a situation and

argues plaintiffs present no evidence representatives of CACI engaged in any of the alleged

improper conduct as to these plaintiffs. But from my review of the record, I cannot reach

that conclusion as a matter of law. Therefore, I agree the requirements for us to exercise

appellate jurisdiction for an interlocutory appeal are lacking.

       However, I write separately because in contrast to the majority’s reading of the case,

Al-Shimari explicitly held that the denial of derivative sovereign immunity may be

appealable if the appeal involves an “abstract issue of law” or a “purely legal question.”

679 F.3d at 221–22. We as a panel do not have the authority to alter that previous

conclusion.

       Yet despite this disagreement, being bound by our precedent, I concur with the

majority’s judgment. But I do so only reluctantly. Our narrow interpretation of the

collateral order doctrine in this case has taken us down a dangerous road. This proceeding

has allowed discovery into sensitive military judgments and wartime activities. It has also

opened the door to an order that the United States has no sovereign immunity for claims

that our military activities violated international norms—whatever those are. These may


                                              5
seem like minor inconveniences given the conduct at issue has been uniformly condemned

and because the defendant here is a private contractor. But while we have no jurisdiction

to address them now, the implications from these proceedings are potentially quite

significant. We will see whether this case progresses to a point where we have jurisdiction

to address the important questions it raises.




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