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Summary Denial of Government Contractor Defense Not Appealable

A contractor's appeal from a district court's denial of its summary judgment motion in a products liability and negligence action was dismissed by the Court of Appeals for the Ninth Circuit because the government contractor defense is not a grant of immunity that would allow the contractor to seek an interlocutory appeal under the collateral order doctrine. The lawsuit was filed after soldiers were injured or killed by a mortar cartridge that exploded prematurely during a training exercise. The contractor moved for summary judgment on the merits of the plaintiffs' claims and on the ground the government contractor defense, first articulated in Boyle v. United Technologies Corp. (34 CCF 75,489), barred the claims. The district court, however, denied both motions, holding a genuine issue of material fact involving the cause of the explosion precluded summary judgment. The contractor appealed the portion of the order denying summary judgment on the basis of the government contractor defense. According to the contractor, the government contractor defense confers immunity from suit and therefore a denial of summary judgment may be reviewed immediately. Generally, a denial of a summary judgment motion is not reviewable because it is not a final judgment. However, the denial may be appealable under the collateral order doctrine, which allows a party to appeal an order if the decision falls within "that small class which finally determine[s] claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."

No Grant of Immunity

Consequently, a denial of a claim of immunity may be immediately appealable. However, the government contractor defense is not a grant of immunity. Instead, it is a "corollary financial benefit flowing from the government's sovereign immunity." Also, the record contained conflicting evidence as to the applicability of the government contractor defense, including whether the contractor complied with the government's specifications. Thus, the denial of the government contractor defense at the summary judgment stage did not conclusively determine the contractor's liability or even whether it was entitled to the defense. In addition, the ruling did not resolve an "important issue completely separate from the merits of the action." Furthermore, jurisdiction to review an interlocutory appeal of a denial of qualified immunity is limited to questions of law, and here the district court's denial of summary judgment rested on factual issues, rather than legal questions. The Ninth Circuit also denied the contractor's request for a writ of mandamus because no extraordinary circumstances justified the issuance of a writ. (Rodriguez, et al. v. Lockheed Martin Corp., et al., CA-9, 55 CCF 79,503)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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