A story by Ariane de Vogue of ABC News and a blog post by Steve Vladeck at Lawfare provide additional reporting and analysis of last week’s en banc Fourth Circuit oral argument in the Al-Quraishi and Al Shimari cases (links are to the now-vacated panel opinions). It is clear from the commentary that the federal government’s position is almost certainly understood differently inside the court than outside of it–perhaps deliberately so. If the Fourth Circuit does conclude that it lacks appellate jurisdiction, I would expect that the cases make their way back to the Fourth Circuit before they make substantial forward progress in the district court.
For those who have not been following these cases: The merits revolve around the potential tort liability of military contractors that assisted the United States military at Abu Ghraib. But the primary focus of the en banc court’s consideration was on appellate jurisdiction.
The appeals came to the Fourth Circuit based on the collateral order doctrine, which is an interpretation/implied exception to the finality requirement of 28 U.S.C. 1291. An alternative route to the Fourth Circuit’s reaching the merits of the appeal would be a remand for lack of jurisdiction (perhaps accompanied by a stay), followed by certification of a controlling question of law pursuant to 28 U.S.C. 1292(b). In a deft tactical retreat, counsel for defendant L-3 Services at oral argument suggested such a path as an alternative to straight-up dismissal of the appeal.