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Denial of Abu Ghraib Contractors' Motions Not Appealable

In an en banc decision, the Court of Appeals for the Fourth Circuit dismissed contractors' interlocutory appeals because there was no basis for jurisdiction under the collateral order doctrine. The plaintiffs were former detainees of Abu Ghraib prison in Iraq who alleged they were tortured by contractor employees. The contractors moved to dismiss, contending application of the law of occupied Iraq rendered them immune from suit as part of the occupying power, the claims were preempted by the "combatant activities" exception to the Federal Tort Claims Act (see Saleh v. Titan Corp., CA-DC, 53 CCF 79,169), they were entitled to absolute or derivative official immunity (see Mangold v. Analytic Services, Inc., CA-4, 77 F3d 1442), and the dispute presented a nonjusticiable political question. Two federal district courts issued non-final orders denying the motions. After first exercising jurisdiction over the plaintiffs' consolidated appeals and holding the district courts erred in permitting the claims to proceed (see, e.g., 55 CCF 79,673), the Fourth Circuit vacated its judgments to reconsider its jurisdiction.

No Green Light

Non-final orders generally are not appealable, but the collateral order doctrine allows appeal of issues that are "effectively unreviewable" following final judgment. The "critical question" was whether the contractors asserted immunity from suit or a defense to liability. Whereas a defense can be vindicated on appeal from a final judgment, immunity is the right not to stand trial, and denial of the right would be "effectively unreviewable" following a final judgment. However, none of the contractors' grounds for dismissal "provide[d] the jurisdictional green light" for an interlocutory appeal. Assuming the law-of-war defense applied to civilian employees, there was no support for construing it as an immunity rather than merely an insulation from liability. The Saleh preemption, derived from the government contractor defense articulated in Boyle v. United Technologies Corp. (SCt, 34 CCF 75,489), conferred the right not to be bound by a judgment stemming from state law duties, but not sovereign immunity. As for immunity under Mangold, the district courts held genuine issues of material fact, such as whether the contractors acted within the scope of their contracts, precluded determining whether the contractors were entitled to immunity. Thus, there was no "fully consummated decision," which is required for jurisdiction under the collateral order doctrine. In addition, the contractors requested immunity in an unexplored context, and facts that could be material to the ultimate issue had not been conclusively identified. The appeals encompassed fact-based issues of law, and the qualified immunity cases of Behrens v. Pelletier (516 US 299) and Ashcroft v. Iqbal (556 US 662) supported an appeal at the dismissal stage only if it presented an "abstract" or "pure" issue of law. Finally, because the law-of-war defense, the Saleh preemption, and Mangold immunity did not provide an independent basis for jurisdiction, the court lacked pendent jurisdiction to consider whether the claims presented nonjusticiable political questions.

Separation of Powers

In a vigorous dissent, Judge Wilkinson argued the majority's purportedly "innocuous jurisdictional disposition inflicte[d] significant damage on the separation of powers, allowing civil tort suits to invade theatres of armed conflict ." In a separate dissent, Judge Niemeyer criticized in depth the majority's "narrow" application of the collateral order doctrine. According to Judge Niemeyer, the contractors asserted derivative immunity, combatant activities immunity, and law-of-war immunity; the majority "fail[ed] to recognize that the undisputed facts of the plaintiffs' claims alone allow[ed] a court to rule on the [contractors'] immunity claims as a matter of law"; and the political question doctrine deprived the district and appellate courts of jurisdiction. ( Al Shimari, et al. v. CACI Int'l, Inc., et al., CA-4, 56 CCF 79,825)




(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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