Tomorrow morning, the en banc Fourth Circuit will hear oral argument in the two Abu Ghraib/contractor preemption cases about which we've blogged previously. Although there's a serious question as to the Court of Appeals' jurisdiction, the heart of the issue on the merits is whether victims of torture at Abu Ghraib can attempt to use state-law tort suits as the basis for recovering from federal contractors. The contractors' central argument is that, under the Supreme Court's Boyle decision, federal common law preempts state-law claims against contractors in situations in which the same claim (1) could not be brought against a federal officer for the same conduct thanks to exceptions to the FTCA; and (2) would interfere with unique federal interests if allowed to go forward (here, foreign affairs/national security). There are reasons to question whether this is a fair reading of Boyle (Judge Garland in his Saleh dissent offered persuasive arguments to the contrary), but that's for another time. In this post, I want to ask a different question, which is whether the Supreme Court itself has now put a thumb on the scale in favor of state-law remedies...
Indeed, the more I've been thinking about the Abu Ghraib cases [in which I helped put together an amicus brief on the jurisdictional question], the more I've been thinking about the Supreme Court's decision two weeks ago in Minneci v. Pollard, which held that Bivens claims should not be available against private prison guards (federal government contractors) where adequate remedies are available under state law... As Justice Breyer wrote for the Court,
where, as here, a federal prisoner seeks damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly amounts to a violation of the Eighth Amendment, and where that conduct is of a kind that typically falls within the scope of traditional state tort law . . . , the prisoner must seek a remedy under state tort law.
To be sure, there is a significant difference between the alternative to a state-law tort suit in Pollard (inferring a federal remedy) and the alternative in the Abu Ghraib cases (using federal common law to bar any remedy). But in both circumstances, a party is asking the courts to displace state law, presumably on the ground that the unique federal interest in such cases justifies a resort to federal, rather than state, law to determine liability.
If that's true, then why aren't these cases largely of a piece with each other? Put another way, why doesn't Pollard at least to some degree undermine the argument that it's inappropriate to leave questions like the ones raised in the Abu Ghraib cases to the idiosyncrasies of state law? In my view, there's a lot to be said for the argument that, all things being equal, it makes a lot of analytical sense in these cases for liability to be a question of federal, rather than state, law. But if the Court didn't buy that in Pollard, doesn't that cut against that line of reasoning here, too?