Al-Quraishi v. L-3 Services, Inc., No. 10-1981
Decided: Sept. 21, 2011
Seventy-two Iraqis imprisoned in various locations throughout Iraq brought suit against L-3 Services claiming the tactics used during interrogations amounted to torture. L-3 moved to dismiss under law of war immunity, federal preemption, derivative immunity, and political question doctrine. When the motion was denied by the district court, L-3 filed an interlocutory appeal to the Fourth Circuit who reversed and remanded with orders to dismiss for the same reasoning applied in the companion case Al Shimari. The primary issue in this opinion was whether the court had jurisdiction to hear the appeal.
The court held that the district court’s order denying dismissal was immediately appealable under the collateral order doctrine. While appeals generally may only come from final decisions, the court may hear appeals when a decision below “(1) conclusively determines a disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) would be effectively unreviewable on appeal from a final judgment.” The court held that the decision below satisfied all three elements. First, the district court did effectively decide the issue of whether arguments relating to preemption, derivative immunity, law of war immunity, and political questions applied in the case. Second, all those questions are collateral to the action and do not address the merits of L-3’s liability. Finally, bringing these matters into court and addressing military functions and procedures that would otherwise be unquestioned by civilian courts could not be remedied after a final resolution of the case. Federal preemption of these causes of action, the majority notes, is similar to a granting of immunity from having to defend the suit and that privilege would be irreparably lost absent an interlocutory appeal. With all the elements met, the court found jurisdiction to hear the appeal and remanded with instructions to dismiss.
Judge King dissented because the dismissal of the case was based on preemption, a substantive defense, rather than a claim of immunity. The third element of collateral order interlocutory appeals, the inability to remedy the decision on appeal, applies primarily to cases of immunity, i.e. the freedom from having to stand trial. Judge King would follow decisions from the Ninth and Fifth Circuits, finding preemption is not a grant of immunity. A finding that liability is proper or improper based on federal preemption of the tort claim is easily addressable by appellate review after a final disposition. Also, trying this case against L-3, a private contractor, would not necessarily require civilian courts to comment on the wisdom or correctness of military procedures—only whether they were followed by the defendant. Indeed, even if there were fear of stepping into military decision-making, the district court has the ability to stifle such concerns; it may limit discovery, quash subpoenas, or perform any acts necessary to protect military interests while still litigating the tort claims against L-3. Finally, Judge King would be willing to entertain an interlocutory appeal from a denial of L-3’s immunity claims, but the district court reserved on deciding the issue until the contract between L-3 and the government had been produced. Thus, without a final decision on the issue, there could be no appeal and the court was bereft of jurisdiction.
-C. Alexander Cable