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)
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