October 25, 2019 Public Contract Law Journal

Merits Matter : Qualifying Government Contractor Immunity

by Kelcey Raymond

Kelcey Raymond (kraymond@law.gwu.edu) is a 2019 J.D. graduate of The George Washington University Law School and was a student member of the Public Contract Law Journal.

I.  Introduction

On August 17, 2017, a historic settlement1 was reached in the highly publicized CIA torture case, Salim v. Mitchell.2 The defendants in the suit were James Mitchell and “Bruce” Jessen, two psychologists who contracted with the government to design and implement an “enhanced interrogation techniques”3 program that was used on detainees thought to be withholding information related to terrorism.4 In short, the program employed physical and mental “tactics [that] meant to condition detainees into a state of helplessness.”The program was used on at least thirty-nine detainees6 and resulted in one prisoner’s death.7 The psychologists were sued by two survivors and the family of the deceased detainee under the Alien Tort Statute.8 In their complaint, the plaintiffs alleged that the “torture program with a scientific veneer”9 subjected them to “solitary confinement; extreme darkness, cold, and noise; repeated beatings; starvation; excruciatingly painful stress positions; prolonged sleep deprivation; confinement in coffin-like boxes; and water torture.”10 To boot, the Senate Select Committee on Intelligence released a report on the interrogation program which concluded that these tactics were both ineffective and ill-justified.11

Though the case never went to trial, the confidential settlement itself was seen as a major victory for the plaintiffs and their families.12 By allowing the Salim case to survive the pretrial motions stage, the federal judiciary made it clear that allegations involving CIA torture have the potential to be heard on their merits.13 As prominent actors in this field, the procedural rights and protections granted to government contractors are now ripe for scrutiny. In defending themselves from litigation, government contractors assert that the protections from suit enjoyed by the federal government also extend to the contractors themselves.14 Namely, these contractors are claiming derivative sovereign immunity.15 This is the notion that the jurisdictional bar on suing the federal government without its consent extends to contractors when they are acting in the capacity of a government agent.16 However, recent Supreme Court jurisprudence has clarified that the immunity afforded to contractors is not simply derivative sovereign immunity, but rather a distinguishable “qualified immunity.”17 Unlike derivative sovereign immunity, qualified immunity requires that the contractors demonstrate that they have followed government orders before defense from suit is granted.18

Though this may not have significant effects on substantive law, the procedural implications of this distinction may be great. Lacking true derivative sovereign immunity, it is improper for defendants to bring a Federal Rule of Civil Procedure (FRCP) 12(b)(1)19 motion seeking dismissal on the grounds of lack of subject matter jurisdiction.20 In the context of CIA torture suits, this could have major effects on how parties prepare to litigate cases under a variety of causes of action. The retirement of the 12(b)(1) motion in the context of government contractor immunity should result in a positive shift away from the practice of contractors raising a misplaced, blanket defense towards a defense based on the merits of their case. This may dissuade contractors from abusing their immunity for fear of a successful suit against them, while still maintaining protection for those complying with government orders.

The body of this Note will be divided into three parts. Part II will provide the reader with background information on the role that government contractors have played and why they have historically been afforded protections from suit. It will also raise the question as to how far this protection should go. Part III of this Note will elaborate on the recent changes that this area of the law has undergone and make the assertion that the Supreme Court’s 2016 Campbell- Ewald Co. v. Gomez decision has effectively solved a circuit split between the Fifth21 and Fourth22 Circuits concerning the applicability of an FRCP 12(b)(1)23 motion to dismiss for want of subject matter jurisdiction. In stating that government contractors are not eligible for derivative sovereign immunity, a 12(b)(1) motion in this context is improper. Part IV of this Note will analyze how these changes will affect litigation and will argue that doing away with government contractors’ access to a jurisdictional bar will lessen contractors’ abilities to take advantage of their immunity, while still preserving immunity for those deserving. Keeping with the original issue presented, analysis will remain focused on cases like Salim v. Mitchell, where contractor involvement in cases involving human rights issues add a layer of seriousness in determining allocation of risk.

II.  Background: Origins of Government Contractor Immunity

A.    Sovereign Immunity and the Federal Government

The origin of derivative sovereign immunity comes from the immunity of the federal government itself.24 Sovereign immunity has its legal roots in British common law.25 The doctrine was based on the notion that the king was above the law.26 Though not discussed in the Constitution, the sovereign immunity doctrine made its way into U.S law through the Supreme Court.27 The Court first recognizes the use of the doctrine28 in 1821 with the Cohens v. Virginia case.29 In the case, Chief Justice Marshall asserts in dictum that “a sovereign and independent State is not liable to the suit of any individual, nor amenable to any judicial power, without its own consent.”30 Nearly a century later, Justice Holmes vehemently defended the doctrine in Kawananakoa v. Polyblank,31 giving the following appeal grounded in practicality: “[a] sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.”32 As a result, an individual’s ability to sue the federal government is limited to instances where the United States has expressly waived its immunity.33 This generally comes in the form of broad legislation granting the right to sue.34 In the Salim case, the cause of action arose out of a right to sue granted under the Alien Tort Statute.35 Among other causes of action, similarly situated cases may also arise under exceptions to the Federal Tort Claims Act.36

B.  Extending Immunity to Government Contractors

Though the idea had been agreeable to the Supreme Court in years prior,37 the Court made its first clear articulation of the derivative sovereign immunity doctrine in 194038 with Yearsley v. W.A. Ross Construction Co.39 In the case, land owners sued a government contractor for building dykes on the Missouri river which resulted in the erosion of an estimated 95 acres of land.40 As was correctly found by the Court of Appeals, “the work which the contractor had done in the river bed was all authorized and directed by the Government of the United States for the purpose of improving the navigation of this navigable river.”41 The Court held that “if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will.”42 The case does not refer to derivative sovereign immunity by name, but lays heavily cited groundwork for this doctrine, stating that an agent of the government may be free from liability unless “he exceeded his authority or that it was not validly conferred.”43

Though it has been argued that the holding in Yearsley is restricted to public works contracts,44 the Supreme Court recently settled this point of contention in the 2016 case Campbell-Ewald Co. v. Gomez, stating that “[c]ritical in Yearsley was not the involvement of public works, but the contractor’s performance in compliance with all federal directions.”45 In Campbell-Ewald Co., the fact that the defendant contractor was an advertising company, with no involvement in public works projects, had no bearing on whether they could receive immunity.46 Though this clarification made by the Court certainly seems to make the reaches of Yearsley quite broad, Part III of this Note will explain that Campbell-Ewald Co. may also substantially limit government contractors’ ability to seek immunity under Yearsley.47

C.  Derivative Sovereign Immunity v. Qualified Immunity

Though the idea of extending liability protections to government contractors is fairly settled, the main point of contention concerns the nature of the defense itself. 48 The core question is whether contractors should be allotted the same outright immunity from suit that the federal government enjoys, or if the protection should be dependent on the contractor meeting specified conditions.49 The sovereign immunity of the federal government creates a jurisdictional bar, meaning that suits brought against the federal government without its express permission are deemed to lack subject matter jurisdiction.50 The courts cannot hear such a case because doing so would interfere with balance of power concerns.51 “[T]he suit is barred . . . because it is, in substance, a suit against the Government over which the court, in the absence of consent, has no jurisdiction.”52

Rather, federal sovereign immunity serves as a bar to suit against the government unless Congress chooses to lift it, completely or in part.53 As a result, defendants seeking to assert sovereign immunity protections may raise Rule 12(b)(1) of the FRCP54 to move for dismissal for lack of subject matter jurisdiction.55 This power to prevent a case from being heard creates a well-fortified barrier to litigation for plaintiffs. Some jurisdictions have interpreted Yearsley to extend sovereign immunity to government contractors resulting in a derivative sovereign immunity.56 In Butters v. Vance International Inc., the Fourth Circuit held that a government agent may be entitled to derivative sovereign immunity and references Yearsley as the origin of this protection.57 This is a very literal expansion of the government’s own freedom from nonconsensual suit safeguarded by Congress. Putting this in context of the Salim v. Mitchell case, the plaintiffs’ torture experience in confinement under a pro- gram designed and implemented58 by a private contractor will not be granted any consideration. Psychiatrists Mitchell and Jessen would simply flex their immunity and walk away.

In contrast, the Sixth Circuit has argued that the protection from liability available to contractors should come in the form of qualified immunity.59 “Qualified immunity . . . is a defense to liability based upon the merits of the action and can be overcome.”60 Contractors are still able to avoid fault when performing in the name of the federal government, but only when they demonstrate that they have complied with the government’s instructions.61 Dependent on the cause of action, this may require that the contractor was performing a “discretionary function,”62 meaning that the federal government exercised judgment or choice in their instruction to the contractor and the contractor carried it out as ordered.63 As the contractor’s compliance with government direction is a factually-based inquiry, it is not a jurisdictional bar to litigation. Even so, “[q]uestions of qualified immunity should be resolved at the earliest possible stage in the litigation.”64 Here, a motion to dismiss under FRCP 12(b)(6)65 for failure to state a case on which relief can be granted is appropriate, as qualified immunity is an affirmative defense.66 This means that it is the defendant’s burden to plead that qualified immunity exists.67 The facts are considered in a light most favorable to the plaintiff, meaning the motion to dismiss will not succeed if “a complaint . . . state[s] a claim to relief that is plausible on its face.”68 This is important for plaintiffs such as the torture vic-ims and their families in the Salim case, because they receive the opportunity to have the facts of their case heard, even if only at the pretrial stage.

III.  A Shift in the Law: Pivoting Away from Absolute Protection

With the background laid out on both derivative sovereign immunity and qualified immunity, this section will address the circuit split over which form of immunity is appropriate for government contractors. First, the position of the Sixth Circuit which favors qualified immunity will be discussed.69 The position of the Fourth Circuit will follow, which argues that contractors may be granted derivative sovereign immunity from suit.70 Next, the 2016 Campbell-Ewald Co. case will be used to demonstrate that the Sixth Circuit’s reasoning for allowing qualified immunity should prevail.71 In turn, this should result in the elimination of government contractor’s ability to put forth a FRCP 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, as qualified immunity requires a case to be argued on its merits.72

A.  Opposing Viewpoints: Circuit Split Over Proper Allocation of Contractor Immunity

1.   Sixth Circuit’s Position: Government Contractor Immunity Is Qualified

As the Sixth Circuit explains in its 2015 case, Adkisson v. Jacobs Engineering Group, Inc., there is a divide as to whether immunity under Yearsley poses a jurisdictional bar to litigation.73 This case concerns three separate suits filed by individuals who remediated a coal-ash spill against the contractor.74 The suits were brought due to adverse health effects that the miners were suffering from as a result of poor and negligent management of the mine.75 Before reaching the circuit court, the lower court dismissed the complaint for lack of subject matter jurisdiction, citing the government contractor immunity derived from Yearsley.76 However, on appeal, the circuit court found that the district court’s dismissal was improper: “[b]ecause we conclude that Yearsley immunity is not jurisdictional in nature, the district court here erred in dismissing the Plaintiffs’ complaints on that basis.”77

The Sixth Circuit’s reasoning is as follows. First, it demonstrates how Yearsley’s scope does not go beyond substantive aspects of the case.78 It looks to the Fifth Circuit,79 which uses the construction of the Yearsley case to argue that the court never applied a jurisdictional bar.80 The Fifth Circuit concedes that “[i]f the basis for dismissing a Yearsley claim is sovereign immunity, then a Yearsley defense would be jurisdictional. . . .”81 But because “Yearsley does not discuss sovereign immunity or otherwise address the court’s power to hear the case,”82 the Fifth Circuit held that “concluding Yearsley is applicable does not deny the court of subject-matter jurisdiction.”83 In short, Yearsley focuses on the protected status of actions by private contractors carrying out the will of Congress; its concerns are purely substantive, so jurisdictional implications should not be gleaned.

Additionally, the Sixth Circuit keenly recognizes that Yearsley immunity is closer to qualified immunity.84 In defining qualified immunity, Harlow v. Fitzgerald85 states the accepted standard: “We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”86

Simply put, Yearsley requires agents to operate within the parameters allotted by the government, or else immunity is not granted. It follows that immunity is not absolute, but subject to the contractor’s compliance with both Congress and the Constitution.87 This is significant as Yearsley immunity has now been distinguished from derivative sovereign immunity.

The Sixth Circuit goes on to argue that in light of Yearsley’s utilization of qualified immunity, there is no longer a jurisdictional bar available for contractors to raise.88 Unlike the federal government’s protection by sovereign immunity, qualified immunity requires factual inquiry.89 As the Adkisson court states, “Yearsley immunity is . . . closer in nature to qualified immunity for private individuals under government contract, which is an issue to be reviewed on the merits rather than for jurisdiction.”90 The court illustrates this point by drawing a comparison between the case before it and the 2012 Supreme Court case Filarsky v. Delia, in which it was held that an attorney retained by a local government shall be given the same “qualified immunity” as a municipal worker.91 As a result, the Sixth Circuit asserts that qualified immunity is the appropriate form of protection to extend to the contractor.92 Because qualified immunity offers no jurisdictional shield, the case must be decided on its merits.93

2.  Fourth Circuit’s Position: Contractors Entitled to Derivative Sovereign Immunity

In opposition, the Fourth Circuit sees derivative sovereign immunity as legitimate.94 This is the notion that the government’s immunity extends to the contractor in a direct sense.95 The court is giving the exact protection enjoyed by the government to a private party without qualification. In Butters v. Vance International, Inc., a case decided by the Fourth Circuit in 2000, the court confirmed the availability of this defense in the context of the Foreign Sovereign Immunities Act (FSIA).96 The case involved an employment action in which an employee claimed gender discrimination while working for a security corporation, Vance International, Inc., under a government contract to protect a Saudi princess during her stay in California.97 As stated clearly by the Fourth Circuit, “[i]f Vance was following Saudi Arabia’s orders not to promote Butters, Vance would be entitled to derivative immunity under the FSIA.”98 The court goes on to find that this interpretation is consistent with Yearsley in that it “did no more than recognize well-settled law that contractors and common law agents acting within the scope of their employment for the United States have derivative sovereign immunity.”99 This is vastly different from the Sixth Circuit’s interpretation of Yearsley in that the Fourth Circuit recognizes the parameters within which the contractor must act, and then proceeds to argue that within those limitations set forth by congressional will, the contactor has derivative sovereign immunity.

Additionally, the Fourth Circuit promoted derivative sovereign immunity once again in its 2014 decision, In re KBR, Inc.100 The case involved defendant government contractors facing charges for adverse medical effects on soldiers caused by burn pit emissions and contaminated water in Afghanistan.101 Here, the Fourth Circuit “repeatedly referred to Yearsley immunity as ‘derivative sovereign immunity’ ” In re KBR, Inc. is also significant in solidifying the Fourth Circuit’s position. . . . .”102 as it vacated the lower court’s dismissal and “did not take issue with the lower court’s review of the case for lack of subject- matter jurisdiction under Rule 12(b)(1),”103 even though the case was brought under Yearsley. The Fourth Circuit has not openly opposed the Sixth Circuit’s merits-based view of Yearsley’s applicability, but its actions demonstrate that they clearly have vastly different takes on government contractor immunity and its consequences on the process of litigation.

B.  Supreme Court Offers Split Solution with Campbell-Ewald Co. v. Gomez

1.   The Case Explained

Now that the circuit split has been deconstructed, it is appropriate to discuss the 2016 Supreme Court decision, Campbell-Ewald Co. v. Gomez. For context, Campbell-Ewald Co. concerned a consumer class action suit against the Campbell-Ewald Company for violation of the Telephone Consumer Protection Act (TCPA).104 The plaintiffs alleged that the company violated the act in sending unsolicited text messages to customers.105 The question at issue for the purposes of this Note was “whether Campbell’s status as a federal contractor renders it immune from suit for violating the TCPA by sending text messages to unconsenting recipients.”106

The defendant attempted to argue that it was entitled to derivative sovereign immunity due to its contractual status with the government and argued that this right came from the Yearsley and Filarsky cases.107 With regards to Yearsley, the Campbell-Ewald Co. Court directed our attention to the case’s standard of contractor action, as it was pursuant to congressional will and within the confines of the Constitution.108 Campbell-Ewald Co. quotes Yearsley in explaining that “‘there is no liability on the part of the contractor’ who simply performed as the Government directed.”109 The Court then quickly pointed out, with the help of Yearsley, that in cases where the contractor was not in compliance with government directives, “the agent could be held liable for conduct causing injury to another.”110

The defendant’s attempt to use Filarsky in its argument for derivative immunity was also turned down by the Campbell-Ewald Co. Court.111 Instead, the Court used Justice Ginsberg’s concurrence in Filarsky to show contractor immunity, as properly applied in that case, is necessarily conditional: “[q]ualified immunity may be overcome . . . if the defendant knew or should have known that his conduct violated a right ‘clearly established’ at the time of the episode in suit.”112 In its plea for immunity, the defendant made no attempt to raise the defense that no such right was established;113 it simply requested immunity based on its government contractor status alone.114 The defendant’s arguments for derivative immunity based on Yearsley and Filarsky were not accepted by the Campbell-Ewald Co. court, as it held that “the petitioner’s status as a Government contractor does not entitle it to ‘derivative sovereign immunity,’ i.e., the blanket immunity enjoyed by the sovereign.”115

2.   Circuit Split Resolution

First, the Campbell-Ewald Co. court’s discussion of Yearsley confirms that the scope and structure of the case nods at the application of qualified immunity. In a footnote, Campbell-Ewald Co. clarifies that Yearsley turns on whether the contractor was performing within the scope that Congress intended.116 “Critical in Yearsley was not the involvement of public works, but the contractor’s performance in compliance with all federal directions.”117 This view certainly does not focus on the court’s ability to hear the case, but rather on questions of substantive fact. As the Sixth Circuit suggests, jurisdictional concerns are simply outside of Yearsley’s purview. 118

Even more important for the Sixth Circuit’s claim is the Supreme Court’s express endorsement of qualified immunity for federal contractors: “[d]o federal contractors share the Government’s unqualified immunity from liability and litigation? We hold they do not.”119 This directly supports the Sixth Circuit’s assertion against the use of 12(b)(1) motions.120 Dismissal for lack of subject matter jurisdiction in a government contractor immunity case would directly conflict with the court’s interest in ensuring that contractors have “qualified” for the defense that they are seeking.121 In short, the Sixth Circuit prevails because qualified immunity is the appropriate choice, judgment on the merits is needed, and therefore jurisdictional bars are inappropriate.

The split being resolved in favor of the Sixth Circuit appears all the more compelling as the Fourth Circuit’s reasoning seems to crumble when held up to Campbell-Ewald Co. As quoted above, the plain language of the Fourth Circuit case Butters v. Vance International Inc. does not seem to align with the definition and applicability of derivative sovereign immunity.122 Stating that an employee has derivative sovereign immunity while “acting within the scope of their employment for the United States” makes little sense.123 It is a fallacy to assert that an immunity is absolute and then attach the caveat that it can only be used once certain conditions are met. By definition, this immunity has become qualified.

Additionally, the Fourth Circuit’s decision in the In re KBR, Inc. case discussed above would also be incorrect when Campbell-Ewald Co. is applied. Contrary to the terminology the Fourth Circuit repeatedly used in this case, Yearsley immunity cannot be construed to be derivative sovereign immunity.124 Following this flawed scheme, the Fourth Circuit did not correct the district court for allowing a claim under FCRP 12(b)(1) for lack of subject matter jurisdiction.125 But as we now know that derivative sovereign immunity is inapplicable, so too is the 12(b)(1) motion.126 Instead, this case should have also proceeded on its merits to determine whether qualified immunity was applicable.127 Following Campbell-Ewald Co., contractors may not use a derivative sovereign immunity defense. The Sixth Circuit’s call for an elimination of the FRCP 12(b)(1) motion in the context of government contractor immunity should be heeded because a defense must be presented on its merits without a jurisdictional bar to suit.

IV.  Effects & Implications: Elimination of Derivative Sovereign Immunity

With the circuit split explained, the implications on litigation and policy can be discussed. In holding that absolute immunity is not available to government contractors, Campbell-Ewald Co. has confirmed the Sixth Circuit’s assertion that contractor immunity must be qualified.128 As such, defendants will only have access to FRCP 12(b)(6) motions to dismiss, as qualified immunity requires a case to be decided on its merits.129 In this section, Adkisson will serve as a guide post to better understand litigation changes that come with the elimination of FRCP 12(b)(1). Second, the seemingly rival policy considerations regarding the preservation of government contractor immunity and limiting the government contractor defense to qualified immunity will be discussed. These two policies are actually not in direct competition,130 and both goals can be pursued contemporaneously after Campbell-Ewald Co.

A.  Shift in Litigation

In its Adkisson v. Jacobs Engineering Group, Inc. decision, the Sixth Circuit not only eliminated the use of the 12(b)(1) motion for government contractors within its jurisdiction, but also gave a glimpse of what effects this change may bring about.131 After Campbell-Ewald Co.’s ruling that derivative sovereign immunity is not available to government contractors, other jurisdictions should now follow the Sixth Circuit’s lead, as it reasoned that qualified immunity required factual review.132 With regards to motions to dismiss, government contractor defendants will now only have at their disposal FRCP 12(b)(6) motions for failure to state a claim upon which relief can be granted.133 The procedural effects of this change go deeper than simply allowing more cases to be judged on their merits. In a FRCP 12(b)(1) motion for lack of subject-matter jurisdiction, “the district court has broad discretion over what evidence to consider and may look outside the pleadings to determine whether subject-matter jurisdiction exists.”134 Conversely, a FRCP 12(b)(6) motion for dismissal on the grounds of failure to state a claim requires that the district court “construe the complaint in the light most favorable to the plaintiff and accept all factual allegations as true.”135 As such, motions to dismiss, limited to FRCP 12(b)(6), will provide an amicable procedural posture to plaintiffs.136 As suggested, this could have major implications when it comes to bringing government contractor immunity cases to trial.137

Taking up the original exploration of the Salim CIA torture case, it appears that the defendants would bear less of the burden in litigation on a FRCP 12(b)(1) motion for lack of subject matter jurisdiction as opposed to a FRCP 12(b)(6) motion for failure to state a claim for which relief can be granted. In a FRCP 12(b)(6) motion, the trial court judge’s ability to look beyond the pleadings138 seems to put defendant contractors on an equal evidentiary playing field with the plaintiffs because the judge has a wide range of discretion in deciding on the motion.

On the other hand, defendant contractors would be at a disadvantage to the plaintiffs if they sought a motion to dismiss for failure to state a claim. Facts are construed in the light most favorable to the plaintiffs,139 thus requiring that the defendants show at the outset that even if the factual allegations are accepted as true, an affirmative defense of qualified immunity would absolve them of potential liability. For this, the contractor must show that the action taken was validly conferred by the government and that he did not act outside of the scope of government instruction.140 As authority is not validly conferred by the government when it violates an act of Congress,141 cases like Salim involving torture and potential human rights violations will likely violate the Federal Tort Claims Act142 or Alien Tort Statute.143 This factual examination under qualified immunity will make litigation a more tenuous process for defendant contactors.

B.  Policy Considerations: Balancing the Goals of Both Parties

With the elimination of derivative sovereign immunity for government con- tractors and the right to a jurisdictional bar from suit along with it, the focus at pretrial dismissal stage and trial is whether the government contractor has sufficiently complied with the government’s orders.144 Compelling the case to be evaluated on its merits ensures that this central question is adequately explored. This will promote restraint and accountability for contractors per- forming in the name of the federal government, while at the same time, pre- serving immunity where deserved. After Campbell-Ewald Co., policy reasons for maintaining government contractor immunity can still be maintained, while abuses falling outside any policy design can be further combatted.

1.   Consequences of Over-Immunizing Contractors

With the potential for elimination of derivative sovereign immunity for government contractors, it is important to consider what the broader, real world effects of such a large shift might look like. There will certainly be reverberations for the defendants, plaintiffs, and the government contracting field in general. The Salim litigation serves as a prime example of the notion that contractors still believe that they can hide behind an absolute shield, making potential abuses that come with overextended immunity hard to ignore. Though some immunity for government contractors is necessary, major harm is incurred when contractors go unchecked and without consequences for their actions.145

One of the biggest issues is sheer lack of accountability. In a Salim case filing opposing the defendant’s motion to dismiss, the ACLU argued that government contractor “ ‘immunity must be extended with the utmost care’ because of the great costs it imposes on injured persons and ‘the basic tenet that individuals be held accountable for their wrongful conduct.’”146 This accountability issue is due in large part to the fact that “[c]ontractors are not subject to civil service laws or administrative discipline, and can reap profits far in excess of any public servant.” 147 Private entities like corporations can absorb monetary risk in ways that the federal government cannot.148 Costs of potential litigation will be built in to the contract price, making the agency, and ultimately the tax payer, financially liable.149 Those contractors who are acting on their own whim and outside the scope of government instruction should be answerable for their actions: “when a contractor has sloppy manufacturing practices . . . or interrogates aggressively beyond what the government requested . . . maybe immunity has gone too far.”150

Additionally, it is important to keep in mind that when a form of immunity is invoked, the injured plaintiff may recover nothing.151 If immunity is granted to contractors on a loose basis, many deserving plaintiffs will not be afforded restitution.152 By allowing suits to proceed, there is also another check on the contractor tying back to accountability. “[T]he argument that such suits would interfere with the government’s own internal remedies does not match reality… . Private suits on behalf of injured civilians supplement the internal overseers, not hinder them.”153 Allowing these cases to proceed on their merits both provides a remedy for injured parties and creates a further disincentive to stray from prescribed orders. “Injured civilians and their lawyers, including lawyers specializing in human rights cases, change the situation . . . to one in which there is a kind of accountability for security firms’ abuses.”154

A case involving alleged torture such as Salim serves as an invaluabletool to see just how serious an over-extension of immunity can be. There, contractor-psychologists Mitchell and Jessen developed and implemented an advanced interrogation program that had little to no CIA oversight.155 Though their program was scientifically unfounded156 and found to be utterly ineffective by a congressional committee after the fact,157 Mitchell, Jessen, and their corporation made millions of dollars in profits pursuant to their government contract.158 In addition to the corrupt undue reward, the victims of torture would have received no compensation if immunity was granted to the contractors. This means that men like Salim who were kidnapped, held, and severely mistreated in accordance with Mitchell and Jessen’s program159 will have no remedy simply because the psychologists had a government affiliation. There are basic principles of justice and fairness lacking from this approach, especially as Mitchell and Jessen’s actions were all but self-determined.160 In solving this issue, implementation of qualified immunity at least ensures that the contractor is carrying out government initiatives and not constructs of their own design.161 In doing so, contractor responsibility will be evaluated on a fair basis and injury without remedy will be decreased.162

2.  Benefits of Preserving Immunity for Compliant Contractors

On the other hand, many courts and scholars have presented arguments in favor of contractor immunity.163 Though this might seem contrary to the goal of paring down instances of government contractor abuses, the two concepts can be pursued concurrently and harmoniously.164 “[T]he recognition of a qualified immunity defense . . . reflect[s] an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens . . . but also ‘the need to protect officials . . . .’”165 and by extension, the contractors carrying out tasks at their discretion. As a matter of fairness, contractors faithfully executing their instructions should receive the same protection as a government employee would.166 Landmark Supreme Court case Boyle v. United Technologies Corp., states that it would be nonsensical to leave contractors unprotected from liability where the government would receive protection itself if it was to perform the same function.167 “It makes little sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production.”168

The government is also concerned with keeping skilled individuals willing to contract with them. The Supreme Court has stated that it is in the government’s interest to extend protections to contractors as to “ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.”169 There is also a fiscal argument to be made as utilizing and immunizing contractors creates an efficient government that benefits the public.170 Costs stay low as bidders are not building in anticipated litigation fees, and in turn, savings are passed onto the tax payer.171

When holding these policy goals up to the interests of the Salim plaintiffs, there may not be a direct conflict.172 Each of the above goals can be carried out in the context of qualified immunity. If the government had carried out the task under the same lawful instructions that the contractor followed, it would have been protected from suit based on its own sovereign immunity.173 But, when the contractors act outside of these proscribed federal limits, plaintiffs will have the opportunity to recover.174 The policy goals of fairness to a compliant contractor, keeping talented individuals willing to contract, and keeping costs low do not infringe upon this ability to seek remedy. However, the moment contractors operate outside of the government’s will, these policy goals are no longer benign to the plaintiffs seeking redress for the reasons already discussed in this Note. This brings the argument full circle to illustrate just how important factual inquiry under qualified immunity is in order to maintain fairness between contractor and plaintiff. By adopting the Sixth Circuit’s push for merit-based, qualified immunity, balance can be maintained between the need for contractor legal protections and the need to eliminate abuse.

V.  Conclusion

Imagining an alternative outcome in the Salim case, the consequences of unfettered government contractor immunity become tragically apparent. If contractor-psychologists Mitchell and Jessen were able to successfully put forth a jurisdictional bar from suit after designing and implementing a torture program with minimal government oversight, the harm done to inmates and their families would have been legally irreparable. Campbell-Ewald Co.’s elimination of absolute immunity for government contractors significantly bridges this gap between wrongful injury and redress. For the reasons stated above, implementation of a qualified immunity defense for government contractors will weigh the needs of both plaintiff and defendant. When immunity is merit-based, contractors are held accountable for their independent actions while those who submit to government directives will be found without fault. Though this issue is layered and complex, requiring government contractors to make a showing of qualified immunity brings this area of the law toward a more balanced sense of justice.

  1. Bill Chappell, Psychologists Behind CIA ‘Enhanced Interrogation’ Program Settle Detainees’ Lawsuit, NPR (Aug. 17, 2017), https://www.npr.org/sections/thetwo-way/2017/08/17/544183178/psychologists-behind-cia-enhanced-interrogation-program-settle-detainees-lawsuit [https://perma.cc/6QTW-444W].
  2. See generally Salim v. Mitchell, 268 F. Supp. 3d 1132 (E.D. Wash. 2017).
  3. Pls.’ Reply to Defs.’ Resp. to Pls.’ Statement of Undisputed Material Facts at 1, 5, Salim v. Mitchell, 268 F. Supp. 3d 1132 (E.D. Wash. 2017) (No. 15-CV-0286-JLQ).
  4. Chappell, supra note 1.
  5. Id.
  6. See S. Select Comm. on Intelligence, 113th Cong., Comm. Study of the CIA’s Detention and Interrogation Program xi (Comm. Print 2014). But see Salim v. Mitchell – Lawsuit Against Psychologists Behind CIA Torture Program, ACLU (Aug. 17, 2017), https://www.aclu.org/cases/salim-v-mitchell-lawsuit-against-psychologists-behind-cia-torture-program [https://perma.cc/K3H4-ABED] [hereinafter Salim v. Mitchell—Lawsuit Against Psychologists Behind CIA Torture Program] (asserting that the Senate Select Committee on Intelligence report named a total of 119 detainees subject to the CIA program).
  7. See Salim, 268 F. Supp. 3d at 1138 (“Mr. Rahman was chained, partially nude, in a stress position, with temperatures in the 30s. The next morning he was found dead. The autopsy report listed the likely cause of death as hypothermia, with contributing factors of dehydration, lack of food, and immobility due to short chaining.”) (internal quotation marks omitted); Chappell, supra note 1.
  8. See 28 U.S.C. § 1350 (2012) (laying out a cause of action that serves as a waiver of the government’s sovereign immunity).
  9. Compl. and Demand for Jury Trial at 2, Salim v. Mitchell, 268 F. Supp. 3d 1132 (E.D. Wash. 2017) (No. 2:15-CV-286-JLQ).
  10. Id. at 2-3.
  11. See S. Select Comm. on Intelligence, 113th Cong., Comm. Study of the CIA’s Detention and Interrogation Program at xi (noting seven out of the thirty-nine detainees undergoing advanced interrogation techniques did not produce any terrorism related information, while others in the program were found to have fabricated information, and many of those who were interviewed without being subjected to the program produced valuable information). The report also explained that the CIA had justified the program with “inaccurate claims of [] effectiveness,” wrongly attributing thwarted terrorist plots to intelligence produced by the program. Id.
  12. See Salim v. Mitchell—Lawsuit Against Psychologists Behind CIA Torture Program, supra note 6.
  13. See id.
  14. See Boyle v. United Techs. Corp., 487 U.S. 500, 510 (1988) (“It makes little sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production.”); Defs.’ Mot. to Dismiss Pursuant to FRCP 12(b)(1) and 12(b)(6) at 10, Salim v. Mitchell, 268 F. Supp. 3d 1132 (E.D. Wash. 2017) (No. 2:15-CV-286-JLQ) [hereinafter Defs.’ Mot. to Dismiss].
  15. See In re KBR, Inc., 744 F.3d 326, 332–33 (4th Cir. 2014) (noting that one of the defendants argued that it should be granted a motion to dismiss for lack of subject matter jurisdiction because it should be entitled to derivative sovereign immunity); Defs.’ Mot. to Dismiss, supra note 14.
  16. See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 666 (2016) (Justice Ginsberg refers to derivative sovereign immunity as the “blanket immunity enjoyed by the sovereign.”).
  17. See Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 647 (6th Cir. 2015) (internal citation omitted); Campbell-Ewald Co., 136 S. Ct. at 672.
  18. See Filarsky v. Delia, 132 S. Ct. 1657, 1667 (2012) (noting that contractors must be pursuing the government’s initiative to get protection).
  19. Fed. R. Civ. P. 12(b)(1).
  20. See Adkisson, 790 F.3d at 646–47 (holding that without derivative sovereign immunity, a jurisdictional bar is improper).
  21. See id. (identifying conflicting decisions between the Fourth and Fifth Circuits).
  22. See generally In re KBR, Inc., 744 F.3d 326 (4th Cir. 2014); see also Butters v. Vance Int’l, Inc., 225 F.3d 462, 466 (4th Cir. 2000).
  23. Fed. R. Civ. P. 12(b)(1).
  24. See McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1353 (11th Cir. 2007) (“[D]erivative immunity can be no broader than the sovereign immunity that grounds it . . . .”); Rodney M. Perry, Cong. Research Serv., R43462, Tort Suits Against Federal Contractors: Selected Legal Issues Summary (Mar. 31, 2014) (explaining that contractors are extended protections from suit that the federal government already enjoys pursuant to an exception to the Federal Tort Claims Act).
  25. See Sovereign immunity, Wex Legal Dictionary, https://www.law.cornell.edu/wex/sovereign_immunity [https://perma.cc/V29P-YKBY] (last visited Nov. 20, 2017).
  26. Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1201 (2001).
  27. See John Lobato & Jeffrey Theodore, Federal Sovereign Immunity, Briefing Papers Collection 3 (2006) (quoting United States v. Lee, 106 U.S. 196, 247, 250 (1882)):
    [T]he doctrine is derived from the laws and practices of our English ancestors; and . . . is beyond question that from the time of Edward the First until now the King of England was not suable in the courts of that country . . . . And while the exemption of the United States and of the several States from being subjected as defendants to ordinary actions in the courts has since that time been repeatedly asserted here, the principle has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.
  28. See Lee, 106 U.S. at 249 (“The first recognition of the general doctrine by this court is to be found in the case of Cohens v. Virginia . . . .”).
  29. See generally Cohens v. Virginia, 19 U.S. 264 (1821).
  30. Id. at 303.
  31. See generally Kawananakoa v. Polyblank, 205 U.S. 349 (1907).
  32. Id. at 353 (making clear that sovereign immunity extends to agents of the government: “As the ground is thus logical and practical, the doctrine is not confined to powers that are sovereign in the full sense of juridical theory, but naturally is extended to those that, in actual administration, originate and change at their will the law of contract and property, from which persons within the jurisdiction derive their rights.”).
  33. See United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”).
  34. See Perry, supra note 24 (“The Supremacy Clause of the U.S. Constitution provides that federal law is the ‘supreme law of the land’ and preempts, or applies instead of, inconsistent provisions of state law. The FTCA is a federal law through which the government largely waives its inherent sovereign immunity from tort liability . . . .”).
  35. See 28 U.S.C. § 1350 (2012) (“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”); see also Filartiga v. Pena-Irala, 630 F.2d 876, 884–85 (2d Cir. 1980) (interpreting the statute to allow suit to be brought by aliens subjected to human rights violations outside of the United States).
  36. 28 U.S.C. §1346(b)(1) (2012). See generally Boyle, 487 U.S. at 512–13 (holding that government contractors can defend themselves from suit under an exception to this Act as an extension of the government’s immunity. This privilege is known as the government contractor’s defense).
  37. See Lamar v. Browne, 92 U.S. 187, 199 (1875) (“We are clearly of the opinion, that, under these circumstances, no action could have been maintained against Colonel Kimball for his acts in the premises. So far as he was concerned, the plaintiff could only look to the United States for redress.”).
  38. See Jason Malone, Derivative Immunity: The Impact of Campbell-Ewald Co. v. Gomez, 50 Creighton L. Rev. 87, 105–06 (2016).
  39. See generally Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940).
  40. See id. at 19–20.
  41. Id. at 20.
  42. Id. at 20–21.
  43. Id. at 21.
  44. See Gomez v. Campbell-Ewald Co., 768 F.3d 871, 879 (9th Cir. 2014) (stating that “Yearsley established a narrow rule regarding claims arising out of property damage caused by public works projects”).
  45. Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 673 n.7 (2016) (expressing disagreement with the lower court’s narrow scope of Yearsley).
  46. See id.
  47. See id. at 673.
  48. See Malone, supra note 38, at 106.
  49. See generally Campbell-Ewald Co., 136 S. Ct. 663.
  50. See generally Malone, supra note 38, at 120 (“Parties who act in the government’s interest have consistently been deemed worthy to protect, not out of interest of the decisionmaker, but in order to protect the policy interest of government.”).
  51. See generally Gregory C. Sisk, A Primer on the Doctrine of Federal Sovereign Immunity, 58 Okla. L. Rev. 439, 452 (2005).
  52. Id. (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 (1949)).
  53. Sisk, supra note 51, at 456 (“Thus, if a civil action is pleaded directly against the government, or one of its departments or agencies, the doctrine of federal sovereign immunity stands as a bar to the lawsuit unless and until Congress chooses to lift that bar and then only to the extent or degree that Congress chooses to do so.”).
  54. Fed. R. Civ. P. 12(b)(1).
  55. See Ackerson v. Bean Dredging LLC, 589 F.3d 196, 200 (5th Cir. 2009) (referencing headnote 3: “Sovereign immunity deprives federal courts of jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subjectmatter jurisdiction.”).
  56. See Butters v. Vance Int’l, Inc., 225 F.3d 462, 466 (4th Cir. 2000).
  57. See id. (citing Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 20–21 (1940)).
  58. See S. Select Comm. on Intelligence, 113th Cong., Comm. Study of the CIA’s Detention and Interrogation Program at xx.
  59. See Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 647 (6th Cir. 2015) (citing Filarsky v. Delia, 132 S. Ct. 1657, 1666–67 (2012)).
  60. Malone, supra note 38, at 92.
  61. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
  62. See Boyle, 487 U.S. at 512.
  63. See id. (laying out Boyle’s three-part test, the first two prongs being that “the United States approved reasonably precise specifications” and that “the equipment conformed to those specifications”).
  64. Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003) (internal citation omitted).
  65. Fed. R. Civ. P. 12(b)(6).
  66. See John M. Greabe, Iqbal, Al-Kidd and Pleading Past Qualified Immunity: What the Cases Mean and How They Demonstrate a Need to Eliminate the Immunity Doctrines from Constitutional Tort Law, 20 Wm. & Mary Bill of Rts. J. 1, 2–3 (2011) (“To the extent that qualified immunity is an affirmative defense-and the Court on many occasions has stated that it is-this rule is consistent with ordinary federal civil practice.”).
  67. See Gomez v. Toledo, 446 U.S. 635, 639–40 (1980).
  68. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
  69. See generally Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641 (6th Cir. 2015).
  70. See generally Butters v. Vance Int’l, Inc., 225 F.3d 462 (4th Cir. 2000).
  71. See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016).
  72. See Adkisson, 790 F.3d at 646-47.
  73. See id. at 646.
  74. Id. at 644.
  75. Id.
  76. See id. at 645.
  77. Id.
  78. See Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 646–47 (6th Cir. 2015).
  79. See generally Ackerson v. Bean Dredging LLC, 589 F.3d 196 (5th Cir. 2009).
  80. See id. at 207–08.
  81. Id. at 207.
  82. Id.
  83. Id. at 208.
  84. See Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 647 (6th Cir. 2015).
  85. See generally Harlow v. Fitzgerald, 457 U.S. 800 (1982).
  86. Id. at 818 (internal citations omitted).
  87. See Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 20–21 (1940) (internal citations omitted).
  88. See Adkisson, 790 F.3d at 647.
  89. See Malone, supra note 38, at 92.
  90. Adkisson, 790 F.3d at 647 (internal citation omitted).
  91. Filarsky v. Delia, 132 S. Ct. 1657, 1667–68 (2012).
  92. See Adkisson, 790 F.3d at 647.
  93. See id.
  94. See generally Butters v. Vance Int’l, Inc., 225 F.3d 462 (4th Cir. 2000).
  95. See McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1343 (11th Cir. 2007) (explaining that the immunity of the federal government is shared).
  96. See Butters, 225 F.3d at 466.
  97. Id. at 464.
  98. Id. at 466.
  99. Id.
  100. See generally In re KBR, Inc., 744 F.3d 326 (4th Cir. 2014).
  101. Id. at 331.
  102. Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 646 (6th Cir. 2015) (citing In re KBR, Inc., 744 F.3d at 345).
  103. Id. (internal citation omitted).
  104. 47 U.S.C. § 227 (2012); Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016).
  105. Campbell-Ewald Co., 136 S. Ct. at 667.
  106. Id. at 672.
  107. Id. at 673.
  108. See id. (internal citations omitted); see Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 20–21 (1940) (setting qualifying standards that contractors must meet before being eligible for immunity).
  109. Campbell-Ewald Co., 136 S. Ct. at 673 (quoting Yearsley, 309 U.S. at 21).
  110. Id. (citing Yearsley, 309 U.S. at 21).
  111. See id. (citing Filarsky v. Delia, 132 S. Ct. 1657, 1663 (2012)).
  112. Id. (quoting Filarsky, 132 S. Ct. at 1668 (Ginsberg, J., concurring)).
  113. Id. (“Campbell does not here contend that the TCPA’s requirements or the Navy’s instructions failed to qualify as clearly established.”) (internal quotations omitted).
  114. See id.
  115. Id. at 666.
  116. See id. at 673 n.7.
  117. Id. (expressing disagreement with the lower court’s narrow scope of Yearsley).
  118. See Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 647 (6th Cir. 2015).
  119. Campbell-Ewald Co., 136 S. Ct. at 672.
  120. See Adkisson, 790 F.3d at 647.
  121. See id. at 647–48.
  122. See Butters v. Vance Int’l, Inc., 225 F.3d 462, 466 (4th Cir. 2000).
  123. See id.; Campbell-Ewald Co., 136 S. Ct. at 673 (interpreting Yearsley to mean that there is no such thing as absolute sovereign immunity; standards of conduct must be met before immunity is granted) (internal citations omitted).
  124. See Campbell-Ewald Co., 136 S. Ct. at 673 (quoting Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 20–21 (1940)).
  125. See In re KBR, Inc., 744 F.3d at 333.
  126. See Adkisson, 790 F.3d at 647.
  127. See id. (internal citation omitted).
  128. See Campbell-Ewald Co., 136 S. Ct. at 672.
  129. See Adkisson, 790 F.3d at 647.
  130. See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (internal citation omitted).
  131. See Adkisson, 790 F.3d at 647; see also Larisa Vaysman, Sixth Circuit Widens Circuit Split by Holding Government-Contractor Immunity Not Jurisdictional, Squire Patton Boggs Sixth Cir. App. Blog (June 4, 2015), https://www.sixthcircuitappellateblog.com/news-and-analysis/sixth-circuit-widens-circuit-split-in-holding-government-contractor-immunity-not-jurisdictional [https://perma.cc/B2BE-M79L] (explaining that 12(b)(6) is currently the only motion to dismiss available to government contractors in the Sixth Circuit).
  132. See Adkisson, 790 F.3d at 647 (internal citation omitted).
  133. See id. (internal citations omitted).
  134. Id. (internal citation omitted); see Defs.’ Mot. to Dismiss, supra note 14, at 2 (internal citation omitted).
  135. Adkisson, 790 F.3d at 647 (internal citation omitted).
  136. Cf. Vaysman, supra note 131 (The blog post discusses the Adkisson decision and states that “[a]lthough the court’s decision does not alter the substance of the Yearsley analysis, it makes it more challenging for government contractors to seek dismissal on the basis of government-contractor immunity.”).
  137. See id.
  138. Fed. R. Civ. P. 12(d); see Adkisson, 790 F.3d at 647 (internal citation omitted) (“When a Rule 12(b)(1) motion attacks the factual basis for jurisdiction . . . the district court has broad discretion over what evidence to consider and may look outside the pleadings to determine whether subject-matter jurisdiction exists.”).
  139. Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1018 (9th Cir. 2014) (“All factual allegations in the complaint are accepted as true, and the pleadings construed in the light most favorable to the nonmoving party.”) (internal citation omitted).
  140. See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 673 (2016) (internal citations omitted).
  141. See id.
  142. 28 U.S.C. §1346(b)(1) (see discussion supra note 36).
  143. 28 U.S.C. § 1350 (see discussion supra note 35).
  144. See Campbell-Ewald Co., 136 S. Ct. at 673 n.7.
  145. See Malone, supra note 38, at 122-23.
  146. Pls.’ Mem. in Opp’n to Defs.’ Mot. to Dismiss at 12 [hereinafter Pls.’ Mem. in Opp’n], Salim v. Mitchell, 268 F. Supp. 3d 1132 (E.D. Wash. 2017) (No. 2:15-CV-286-JLQ) (internal citation omitted).
  147. Id. at 11 (citing Richardson v. McKnight, 521 U.S. 399, 411 (1997)).
  148. See Richardson, 521 U.S. at 400 (“Since a private firm is also freed from many civil service restraints, it, unlike a government department, may offset increased employee liability risk with higher pay or extra benefits.”).
  149. See Sonia Tabriz, The Battlefield Preemption Doctrine: Preempting Tort Claims Against Contractors on the Battlefield to Preserve Federal Interests in Wartime Matters, 42 Pub. Cont. L.J. 629, 642 (2013) (internal citations omitted).
  150. Alexander Volokh, Are Federal Contractors Immune from Tort Suits Just Because the Government Is?, Reason Foundation (May 9, 2013), https://reason.org/commentary/government-contractor-immunity/ [https://perma.cc/MC7Z-69T6].
  151. See Malone, supra note 38, at 123.
  152. See id.
  153. Charles Tiefer, No More Nisour Squares: Legal Control of Private Security Contractors in Iraq and After, 88 Or. L. Rev. 745, 771-72 (2009).
  154. Id. at 769.
  155. See S. Select Comm. on Intelligence, 113th Cong., Comm. Study of the CIA’s Detention and Interrogation Program at xxi (“At least 17 detainees were subjected to CIA enhanced interrogation techniques without authorization from CIA Headquarters.”).
  156. See id. at xx (“Neither psychologist had any experience as an interrogator, nor did either have specialized knowledge of al-Qa’ida, a background in counterterrorism, or any relevant cultural or linguistic expertise.”).
  157. See id. at xi.
  158. See id. at xx (“In 2006, the value of the CIA’s base contract with the company formed by the psychologists with all options exercised was in excess of $180 million; the contractors received $81 million prior to the contract’s termination in 2009.”).
  159. See Pls.’ Mem. in Opp’n, supra note 146, at 26.
  160. See Salim, 268 F. Supp. 3d at 1148 (“Plaintiffs’ contentions are not merely that Defendants Mitchell and Jessen acted specifically at the direction of the Government, but rather that they designed and implemented an experimental torture program. . . . Plaintiffs’ allegations are largely supported by the factual record.”).
  161. See Filarsky v. Delia, 132 S. Ct. 1657, 1667 (2012).
  162. Cf. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (contemplating that plaintiff remedy is conversely related to absolute immunity of government officials and contractors).
  163. See Malone, supra note 38, at 120; Boyle, 487 U.S. at 512; Harlow, 457 U.S. at 807; see generally Filarsky, 132 S. Ct. 1657 (2012).
  164. See Harlow, 457 U.S. at 807 (internal citations omitted).
  165. Id. (internal citations omitted).
  166. See generally Filarsky, 132 S. Ct. 1657 (2012).
  167. See Boyle, 487 U.S. at 512.
  168. Id.
  169. Filarsky, 132 S. Ct. at 1665 (internal quotations omitted) (alterations in original) (quoting Richardson, 521 U.S. at 408).
  170. See Malone, supra note 38, at 122 (“As it relates to contractors, the United States Court of Appeals for the Fourth Circuit in Mangold v. Analytic Services Inc. stated that the ‘public interest in efficient government outweighs the costs of granting such immunity.’”).
  171. See Boyle, 487 U.S. at 510 (“[T]he Fourth Circuit reasoned, since the increased cost of the contractor’s tort liability would be added to the price of the contract, and ‘[s]uch pass-through costs would . . . defeat the purpose of the immunity for military accidents conferred upon the government itself.’”) (quoting Tozer v. LTV Corp., 792 F.2d 403, 408 (4th Cir. 1986)).
  172. Cf. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (internal citation omitted).
  173. See McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1353 (11th Cir. 2007).
  174. See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 673 (2016) (“The Court contrasted with Yearsley cases in which a Government agent had ‘exceeded his authority’ or the authority ‘was not validly conferred’; in those circumstances, the Court said, the agent could be held liable for conduct causing injury to another.”) (citing Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 21 (1940).