Law360 quoted Covington Government Contracts lawyer Daniel L. Russell Jr. in an article examining how government contractors could face longer and more frequent litigation after the U.S. Supreme Court unanimously ruled that the contractor defense established in Yearsley v. W.A. Ross Construction is a defense to liability — not an immunity from suit — and therefore cannot be immediately appealed if denied by a trial court.
Dan told Law360 that the decision still leaves contractors with options, noting they can seek a permissive appeal of a district court order denying their Yearsley defense under 28 U.S.C. § 1292(b). He also emphasized that the ruling does not change the scope of the defense itself. “Although the justices interpreted the nature of Yearsley as a defense to liability, rather than an immunity, how a contractor gains entitlement to that defense remains the same,” he said.
Daniel also pointed to Justice Alito’s concurrence as potentially significant for contractors, noting that “in addition to contractors still being able to assert Yearsley, you may see contractors evaluating whether they can assert a qualified immunity defense in circumstances that might be similar to those, where it might be that Yearsley and qualified immunity are available, but given this ruling, there may be benefits, if you have the requisite facts, to pursuing a qualified immunity defense.”
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