Plaintiffs Get a Boost from Rocket Docket Judge in Iraq War Contractor Cases
By Alison Frankel
March 27, 2009
How effective have military contractors in Iraq been at asserting immunity in civil suits against them? We wondered after we saw recent filings against Blackwater successor Xe for its role in civilian deaths in Iraq in September 2007 and for a 2006 incident in which an allegedly intoxicated Blackwater worker shot an Iraqi guard. So we called Susan Burke of Washington, D.C.'s Burke O'Neil, who's handling an array of civil suits against military contractors, to find out.Turns out our timing was good: On March 18, Alexandria federal district court judge Gerald Lee of the Eastern District of Virginia issued a major ruling on the question of contractor immunity. In a case involving claims that CACI International tortured Iraqi detainees in interrogations, Judge Lee denied CACI's motion to dismiss on three different theories of immunity. He found that the tort claims against CACI did not interfere with separation-of-powers doctrine and ruled that additional discovery was necessary to determine whether CACI's actions were protected because of its role as a contractor for the U.S. military. "The parties must conduct discovery to determine whether the interrogations here constitute 'combatant activities,'" the judge wrote.
CACI's counsel, William Koegel, Jr., of Steptoe & Johnson, told the Litigation Daily that he has filed a notice of appeal of Judge Lee's ruling with the U.S. Court of Appeals for the Fourth Circuit. He also said that he and plaintiffs counsel Burke last month argued immunity issues before the U.S. Court of Appeals for the D.C. Circuit. That appeal involves summary judgment rulings in two cases decided by D.C. federal district court judge James Robertson, who established a new test for the protection afforded contractors under the 'combatant activity' exception, which preempts tort claims against the military. Williams & Connolly represents the contractor L-3 Communications in both the D.C. and Alexandria cases.
Burke, meanwhile, told us that lawyers for Blackwater and KBR haven't been asserting derivative sovereign immunity in recent motions to dismiss. (We called Blackwater outside counsel Peter White of Mayer Brown but didn't hear back.) We suspect they may be waiting to assert those defenses in summary judgment motions, but Burke has a different explanation. "The industry tried to make a big push that this defense applied, but judges in federal and state benches say it doesn't," she told us. "Defense contractors are not immune for their misconduct in Iraq."
