Earlier this week in Adkisson et al. v. Jacobs Eng’g Grp., Inc., the Sixth Circuit joined the Fifth Circuit [link] in holding that government-contractor immunity is not jurisdictional like sovereign immunity. The Sixth Circuit was interpreting Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), which held that government contractors are immune from suit when they act as agents of the federal government, pursuant to authority “validly conferred” by Congress.  The Supreme Court’s opinion in Yearsley was quite brief, and did not address the question of whether the immunity was a jurisdictional bar or an affirmative defense on the merits.

The Fourth Circuit has held that government-contractor immunity derives from sovereign immunity, making it jurisdictional.  In Adkisson, however, the Sixth Circuit sided with the Fifth Circuit, holding that government-contractor immunity under Yearsley is “an issue to be reviewed on the merits,” similar to “qualified immunity for private individuals under government contract.”

Although the court’s decision does not alter the substance of the Yearsley analysis, it makes it more challenging for government contractors to seek dismissal on the basis of government-contractor immunity. A jurisdictional bar may be asserted in a Rule 12(b)(1) motion, and the court has “broad discretion over what evidence to consider,” including evidence outside the pleadings.  As a defense on the merits, however, government-contractor immunity must now—in the Sixth Circuit—be asserted in a Rule 12(b)(6) motion for failure to state a claim. It will be interesting to see how often this makes a difference in the outcome of a motion to dismiss.