It’s often said that hard cases make bad law. In the realm of contractor-on-the-battlefield lawsuits, hard cases seem to be making no law—at least at the appellate level.
As detailed in an amicus brief submitted by Covington on behalf of KBR last week in CACI Premier Technology Inc. v. Al Shimari, No. 19-1328 (4th Cir.), time and again in suits against battlefield contractors, appellate courts have refused to provide definitive rulings regarding threshold, immunity-based defenses. This chronic appellate-court indecision has caused unnecessarily-protracted litigation, which in turn has imposed enormous burdens on the U.S. military; permitted expansive discovery intruding upon sensitive military judgments; and rolled up litigation costs totaling tens of millions of dollars—costs that, in many instances, are reimbursed by the government and thus ultimately borne by taxpayers. In other words, lack of timely appellate review has resulted in the very harms that immunity and related defenses are designed to prevent. Ironically, a major reason why these suits have inflicted such harm on these important federal interests is the United States’ own equivocal and inconsistent litigation positions.
The ongoing Al Shimari case is the latest example of this “kick the can down the road” approach to appellate jurisprudence. The case is on appeal for a fourth time, following years of discovery and conclusive pretrial rulings earlier this year by the district court. In those rulings, the lower court denied motions to dismiss based on derivative sovereign immunity, the political question doctrine, federal preemption, and the state secrets doctrine. Faced with an interlocutory appeal from the denial of these immunity and related defenses, last month the Fourth Circuit panel decided not to decide. In a conclusory unpublished opinion, the panel held it lacked jurisdiction and kicked the case back to the district court. See Al Shimari v. CACI Premier Technology Inc., No. 19-1328 (Aug. 23, 2019).
Whether a battlefield contractor should be subjected to suit in cases like this is no small matter. As the United States has argued, litigation that challenges battlefield contractor conduct “has significant importance for the Nation’s military” because imposing liability “for actions taken within the scope of their contractual relationship supporting the military’s combat operations would be detrimental to military effectiveness.” Br. for the U.S. as Amicus, Harris v. Kellogg Brown & Root Servs., Inc., No. 13-817 (U.S. Dec. 16, 2014) at 19. Further, as the government notes, these suits “can impose enormous litigation burdens on the armed forces.” Id. at 20.
In light of these strong pronouncements from the United States—detrimental to military effectiveness!—one would think the government would be urging courts to address and resolve whether such suits are barred early in litigation. In a few instances, United States has at least superficially endorsed this objective. In briefs submitted to the Supreme Court, the government echoed guidance from the Fifth Circuit and explained that it is “imperative” that threshold defenses are addressed and resolved “at an early stage.” Br. for the U.S. as Amicus in Harris at 19-20 (quoting Martin v. Halliburton, 618 F.3d 476, 488 (5th Cir. 2010)).
But as they say, actions speak louder than its words. When asked by courts to participate in these suits, the government’s actions—in the form of equivocal litigation positions—have only condoned protracted litigation. Understandably, the United States must juggle a variety of policy considerations when formulating litigation positions. But it is hard to reconcile the government’s positions in recent battlefield contractor suits. And it is hard not to conclude that these suits have inflicted greater harm to federal interests than was necessary because of the United States’ equivocal stances.
The Al Shimari suit is a case in point. In the appeal, the United States (participating as an amicus) took several seemingly contradictory positions. On one hand, the United States argued that the district court’s denial of immunity was based on a “fundamental misunderstanding of both sovereign immunity and international law” and “cannot be squared with many decisions of the Supreme Court and this Circuit.” U.S. Br. at 1, 7. But on the other hand, the government oddly stopped short of asking the Fourth Circuit to assert jurisdiction in order to correct these fundamental legal errors. The government’s refusal to advocate for jurisdiction was especially puzzling because, during a prior appeal in the case, the United States argued that interlocutory jurisdiction over such an appeal would exist.
The United States has taken similarly equivocal positions in other battlefield contractor suits. For example, in two recent suits involving KBR, at the certoriari stage the United States argued that the suits should have been dismissed under a broad preemption rule designed to prevent undue burdens on the military and unwarranted intrusion into sensitive military judgments. But at the same time, the government argued against the court issuing a dispositive ruling due to the purported “interlocutory” posture. See Br. for the U.S. as Amicus in Harris at 20. Predictably, this resulted in years of additional, unnecessary litigation, and inflicted the very harms that the government’s preemption test was designed to prevent.
To be sure, battlefield contractor suits are sometimes resolved quickly and efficiently, and there are ways that a contractor’s defense strategy can steer litigation toward an early resolution. At the outset of any suit arising out of a battlefield, contingency, or other national-defense-related environment, it is imperative to evaluate all potentially-applicable threshold defenses. This includes derivative sovereign immunity, the political question doctrine, federal preemption, state secrets, and the government contractor defense. A contractor defendant then must move quickly to develop facts to support such defenses, which often requires seeking access to key documents and witnesses from the government under Touhy regulations. Contractors should also utilize procedural tools that can expedite resolution. For example, consideration must be given to pre-answer dispositive motions and/or seeking a case management order that stages the litigation and imposes limits on discovery so that threshold motions can be teed up and resolved quickly.
For contractors that can’t obtain early dismissals, the path to timely appellate review is not yet as clearly defined as it should be. As Judge Quattlebaum noted in his “reluctant” concurrence in Al Shimari, the Fourth Circuit’s “narrow interpretation” of interlocutory jurisdiction “has taken us down a dangerous road.” Panel Decision at 5. Unfortunately, it’s a long and winding road that many battlefield contractors suits have been down in recent years. As the Fourth Circuit considers whether to grant en banc review, the court will have to decide whether to continue down that road, or perhaps find an exit ramp—ideally, in the form of a definitive appellate legal ruling.
 For example, in Taylor v. Kellogg Brown & Root Servs., Inc., the suit was dismissed after a pre-answer motion was filed, and following only very limited jurisdictional discovery—a single deposition and a document production totaling a few hundred pages. The Fourth Circuit affirmed the dismissal. See 658 F.3d 402 (4th Cir. 2011).