Our posting of 20 August 2010, discussing OSS Nokalva, Inc. v. European Space Agency (ESS), Nos. 09-3602, 3640 (3d Cir. 8/16/10)(link to decision), observed that the Third Circuit has expressly felt the need to invoke – and did invoke — the Collateral Order Doctrine to support its jurisdiction to review a district court’s rejection of a sovereign immunity defense based on the Foreign Sovereign Immunity Act’s commercial activity exception. In Harris v. Kellogg Brown & Root Services, Inc.(KBRSI), No. 09-2325 (3d Cir. 8/17/10) (link to decision), the Third Circuit met another attempt to invoke the Collateral Order Doctrine’s avenue to appellate review. The case arose out of the estate of U.S. serviceman bringing wrongful death and survival action against KBRSI, who, pursuant to a contract with the U.S. Army, was responsible for the electrical maintenance of the building in which the serviceman was electrocuted.
The Collateral Order Doctrine is available when a district court order (i) conclusive determines, (ii) an important issue completely separate from the merits of the action, and (iii) would be effectively unreviewable on appeal from a final judgment. E.g., Will v. Hallock, 546 U.S. 345, 349 (2006). At issue in Harris was the district court’s denial of a motion to dismiss raising the defenses of non-justiciability based on the political question doctrine and immunity from suit under the “combatant activities” exception to the Federal Tort Claims Act’s waiver of sovereign immunity. 28 U.S.C. sec. 2380(j).
In recent years, the political question doctrine and variant arguments such as the Act of State Doctrine have been invoked by litigants in international litigation cases to avoid U.S. jurisdiction. In Harris, the Third Circuit rejected the avenue of getting appellate review of a district court denial of a motion based on the political question defense, principally on the ground that the determination that no political question existed was not conclusively determined at the motion to dismiss stage. The risk of piecemeal litigation was high, and the benefits of an early review of the jurisdictional question was low. The Third Circuit therefore dismissed the appeal without considering the merits. The matter will therefore continue to discovery and subsequent stages of the litigation despite the existence of defenses that could terminate the litigation at the outset.
It is noteworthy that in both OSS Nokalva and in Harris, the result of the Court of Appeal’s decisions were that litigation proceeded in federal court.