At Issue Is Right to Immediately Appeal Orders Denying Immunity from Suit
CHICAGO – (December 17, 2019) – DRI–The Voice of the Defense Bar, has filed an amicus brief in support of the pending petition for a writ of certiorari in CACI Premier Technology, Inc. v. Al Shimari, No. 19-648. The brief was filed through DRI’s Center for law Public Policy.
Under 28 U.S.C. § 1291, federal courts of appeals have jurisdiction to review “final decisions” of district courts. Normally, “final decisions” means final judgments. The Supreme Court, however, long has interpreted § 1291 as allowing immediate appeal of interlocutory orders conclusively resolving an important disputed legal issue that is completely separate from the merits of an action and effectively unreviewable on appeal from a final judgment. This “collateral order doctrine” primarily applies to appeal of district court orders denying dispositive motions that are based on constitutional or statutory immunities from suit.
CACI, a private contractor, provided interrogation services for the U.S. military in Iraq during Operation Iraqi Freedom. After years of district court proceedings, appeals, and remands, former Iraqi detainees who allege they were mistreated by the military currently only are pursuing Alien Tort Statute conspiracy and aiding-and-abetting claims against CACI. After the U.S. District Court for the Eastern District of Virginia denied CACI’s most recent motion to dismiss, which was based in part on derivative sovereign immunity, CACI appealed. But the U.S. Court of Appeals for the Fourth Circuit dismissed the appeal for lack of appellate jurisdiction on the ground that the collateral order doctrine does not apply.
Thus, the certiorari petition in Al Shimari presents the question of whether a district court order rejecting a federal contractor’s immunity-from-suit claim is immediately appealable, as-of-right, under the collateral order doctrine.
DRI’s amicus brief argues that Supreme Court review of the collateral-order issue is warranted because enabling federal contractors to immediately appeal district court denials of immunity-from-suit claims promotes civil justice, and where military support contractors are involved, also serves national defense interests. These federal interests include enabling the U.S. military to perform its duties without becoming involved in private tort litigation that necessarily implicates military policies and decisions, and that burdens military and procurement personnel. DRI also argues that the collateral-order issue is important because of the military’s extensive reliance on support contractors for logistical, technological, and other services in foreign war zones.
A copy of DRI’s amicus brief is available here. Amicus brief author Lawrence S. Ebner of Capital Appellate Advocacy PLLC in Washington, D.C., is available for interview or expert comment at the contact information listed above. Mr. Ebner is a vice chair of DRI’s Center for Law and Public Policy and immediate past chair of the DRI Amicus Committee.
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