I’ve blogged before about al-Shimari v. CACI International, and the larger question of whether state law tort claims may be brought against government contractors arising out of their support of military operations overseas–including their alleged complicity in torture and other prisoner abuse at Abu Ghraib and elsewhere. This morning, the en banc Fourth Circuit dismissed appeals of a pair of district court decisions denying motions to dismiss two such suits arising out of Abu Ghraib, with the Court of Appeals concluding by an 11-3 vote that such orders were not immediately appealable under the “collateral order” doctrine. [Full disclosure: I helped put together an amicus brief making a form of this jurisdictional argument.]
In short, the crux of the Court of Appeals’ analysis was that the contractors’ various asserted defenses to these state law tort claims (including the central one at issue–federal common law preemption under Boyle v. United Technologies Corp.) each constitute a defense to liability rather than an immunity from suit. As such, whether or not the contractors should prevail on the merits of these defenses (a question on which the Court of Appeals took no position), they are not entitled immediately to appeal the district court’s denial of a motion to dismiss, and must instead proceed to discovery and summary judgment in the district court.
I hope to have more to say later–including some thoughts in response to the fairly acerbic (and, in my view, ironic) dissents filed by Judges Wilkinson and Niemeyer. For now, though, let me just suggest that this is a wholly unsurprising result, given that the alternatives for the court were (1) to adopt a highly controversial theory that would effectively immunize federal contractors from most forms of state tort liability; or (2) to reject such a theory, and thereby create a circuit split with the D.C. Circuit, which so held in Saleh v. Titan Corp. in 2009 (over a compelling dissent by Judge Garland). In short, the Fourth Circuit took the easy and obvious way out–leaving for a later date the question whether–and to what extent–Saleh was correct that such implicit federal common law defenses to state tort liability actually exist.