October 25, 2019 Public Contract Law Journal

Merits Matter : Qualifying Government Contractor Immunity

by Kelcey Raymond

Kelcey Raymond (kraymond@law.gwu.edu) is a 2019 J.D. graduate of The George Washington University Law School and was a student member of the Public Contract Law Journal.

I.  Introduction

On August 17, 2017, a historic settlement1 was reached in the highly publicized CIA torture case, Salim v. Mitchell.2 The defendants in the suit were James Mitchell and “Bruce” Jessen, two psychologists who contracted with the government to design and implement an “enhanced interrogation techniques”3 program that was used on detainees thought to be withholding information related to terrorism.4 In short, the program employed physical and mental “tactics [that] meant to condition detainees into a state of helplessness.”The program was used on at least thirty-nine detainees6 and resulted in one prisoner’s death.7 The psychologists were sued by two survivors and the family of the deceased detainee under the Alien Tort Statute.8 In their complaint, the plaintiffs alleged that the “torture program with a scientific veneer”9 subjected them to “solitary confinement; extreme darkness, cold, and noise; repeated beatings; starvation; excruciatingly painful stress positions; prolonged sleep deprivation; confinement in coffin-like boxes; and water torture.”10 To boot, the Senate Select Committee on Intelligence released a report on the interrogation program which concluded that these tactics were both ineffective and ill-justified.11

Though the case never went to trial, the confidential settlement itself was seen as a major victory for the plaintiffs and their families.12 By allowing the Salim case to survive the pretrial motions stage, the federal judiciary made it clear that allegations involving CIA torture have the potential to be heard on their merits.13 As prominent actors in this field, the procedural rights and protections granted to government contractors are now ripe for scrutiny. In defending themselves from litigation, government contractors assert that the protections from suit enjoyed by the federal government also extend to the contractors themselves.14 Namely, these contractors are claiming derivative sovereign immunity.15 This is the notion that the jurisdictional bar on suing the federal government without its consent extends to contractors when they are acting in the capacity of a government agent.16 However, recent Supreme Court jurisprudence has clarified that the immunity afforded to contractors is not simply derivative sovereign immunity, but rather a distinguishable “qualified immunity.”17 Unlike derivative sovereign immunity, qualified immunity requires that the contractors demonstrate that they have followed government orders before defense from suit is granted.18

Though this may not have significant effects on substantive law, the procedural implications of this distinction may be great. Lacking true derivative sovereign immunity, it is improper for defendants to bring a Federal Rule of Civil Procedure (FRCP) 12(b)(1)19 motion seeking dismissal on the grounds of lack of subject matter jurisdiction.20 In the context of CIA torture suits, this could have major effects on how parties prepare to litigate cases under a variety of causes of action. The retirement of the 12(b)(1) motion in the context of government contractor immunity should result in a positive shift away from the practice of contractors raising a misplaced, blanket defense towards a defense based on the merits of their case. This may dissuade contractors from abusing their immunity for fear of a successful suit against them, while still maintaining protection for those complying with government orders.

The body of this Note will be divided into three parts. Part II will provide the reader with background information on the role that government contractors have played and why they have historically been afforded protections from suit. It will also raise the question as to how far this protection should go. Part III of this Note will elaborate on the recent changes that this area of the law has undergone and make the assertion that the Supreme Court’s 2016 Campbell- Ewald Co. v. Gomez decision has effectively solved a circuit split between the Fifth21 and Fourth22 Circuits concerning the applicability of an FRCP 12(b)(1)23 motion to dismiss for want of subject matter jurisdiction. In stating that government contractors are not eligible for derivative sovereign immunity, a 12(b)(1) motion in this context is improper. Part IV of this Note will analyze how these changes will affect litigation and will argue that doing away with government contractors’ access to a jurisdictional bar will lessen contractors’ abilities to take advantage of their immunity, while still preserving immunity for those deserving. Keeping with the original issue presented, analysis will remain focused on cases like Salim v. Mitchell, where contractor involvement in cases involving human rights issues add a layer of seriousness in determining allocation of risk.

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