This week I filed on behalf of DRI-The Voice of the Defense Bar, through its Center for Law and Public Policy, an amicus curiae brief urging the Supreme Court to review a question that is fundamental to civil litigation fairness:
When a private party sues a federal contractor for alleged tortious conduct in connection with the services that it provides, does the contractor have the right to immediately appeal a district court order that rejects immunity from suit?
The Al Shimari plaintiffs are former Iraqi detainees who claim that CACI, by providing war-zone interrogation services during Operation Iraqi Freedom, aided and abetted the U.S. military’s alleged abusive conduct. After a federal district court rejected CACI’s contention that it has derivative sovereign immunity from the plaintiffs’ liability suit, CACI appealed to the U.S. Court of Appeals for the Fourth Circuit. But the court of appeals held that the “collateral order doctrine,” which allows immediate appeal of certain types of interlocutory orders that cannot be effectively reviewed following final judgment, does not apply. CACI now is asking the Supreme Court to review the collateral-order issue. Its certiorari petition was filed by Theodore Olson and Amir Tayrani of Gibson, Dunn & Crutcher LLP and John O’Connor of Steptoe & Johnson LLP.
DRI’s amicus brief argues that allowing immediate appeal of federal contractors’ immunity-from-suit claims not only promotes civil justice, but also, where a defendant is a war-zone support contractor, serves national defense interests. These federal interests include ensuring that contractors are not deterred from providing vital war-zone logistical, technological, and other support services for the U.S. military. They also include enabling the military to carry out its missions without the threat of becoming entangled in supposedly private tort litigation that in reality implicates military policies and decisions.