Government Contracts Government’s Immunity Waived but Settlement Barred Claims
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Tuesday, April 16, 2019

Government’s Immunity Waived but Settlement Barred Claims

By Government Contracts Editorial Staff

Although the government could not assert sovereign immunity for alleged violations of jus cogens norms of international law, the District Court for the Eastern District of Virginia granted the government summary judgment and dismissed the contractor’s third-party complaint, because the contractor agreed to a settlement of all claims against the government “arising out of or related to” the two task orders to provide interrogators. Some of the interrogators the contractor provided were sent to Abu Ghraib prison in Iraq. Foreign nationals brought Alien Tort Statute (28 USC 1350) claims against the contractor, alleging their treatment while detained at Abu Ghraib constituted torture; cruel, inhuman, or degrading treatment; or war crimes. The contractor brought a third-party complaint against the government, alleging United States military personnel were ultimately responsible for directing interrogations and subjecting the plaintiffs to mistreatment. In response to the government’s contention sovereign immunity barred the claims, the contractor argued the government had waived sovereign immunity for violations of jus cogens norms, which are peremptory international law norms from which states may not derogate and which express international recognition that all states are obligated to respect certain fundamental rights of individuals.

Implied Waiver. In what appeared to be a case of first impression, the court addressed whether the government retained sovereign immunity protection in an American court for alleged jus cogensviolations committed by Americans, and it concluded sovereign immunity did not bar the contractor’s claims. First, based on the “ancient legal maxim … [w]here there is a right, there should be a remedy,” by accepting the law of nations, the government impliedly waived any right to claim sovereign immunity against suit for jus cogens violations in an American court. Further, by becoming a party to the Convention Against Torture, the government impliedly waived any defense that would prevent enforcement through jurisdiction over civil claims arising out of alleged torture by American personnel. The status of jus cogens norms at the top of the hierarchy of international norms and as obligatory and overriding principles, the government’s post-World War II participation in developing and recognizing peremptory norms, and the government’s consent through membership in the community of nations also supported the conclusion the government had waived immunity. Finally, jus cogensviolations by government agents are not sovereign in nature, and, as a limited government of delegated powers, the government has no sovereign power to immunize itself from liability.

Settlement of All Claims. The government did prevail on other grounds—it was entitled to judgment as a matter of law because the contractor agreed to a “full and final settlement of all claims and disputes arising out of” the TOs, and agreed the government’s payment of $200,000 constituted “full and final payment, settlement, and accord and satisfaction of all claims and disputes … arising out of or related to” the TOs. The contractor argued the settlement did not bar its claims for indemnification, exoneration, and contribution, because the allegations of jus cogens violations exceeded the bounds of the agreement. However, the contractor’s equitable claims related to the TOs and were therefore encompassed by the settlement agreement. (Al Shimari, et al. v. CACI Premier Technology, Inc., DC ED Va, 63 CCF ¶81,616)

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