Kristen Martin, et al v. Halliburton, et al

Filing 501081858

Case: 09-20441

Document: 00511081858

Page: 1

Date Filed: 04/15/2010

REVISED April 15, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals F i f t h Circuit

FILED
N o . 09-20441 March 23, 2010 Charles R. Fulbruge III Clerk

K R IS T E N MARTIN; DONALD TOLFREE, deceased,

P la in t iffs - Appellees v. H A L L I B U R T O N ; KBR INC; KELLOGG BROWN & ROOT INC; KELLOGG B R O W N & ROOT SERVICES INC; SERVICE EMPLOYEES IN T E R N A T IO N A L INC, D e fe n d a n t s - Appellants

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e KING, JOLLY, and STEWART, Circuit Judges. K I N G , Circuit Judge: D e fe n d a n t s ­ a p p e lla n ts , affiliated governmental contractors providing lo g is tic a l support to the United States Army in Iraq, appeal the denial of their R u l e 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. P la in t iffs ­ a p p e l le e s move to dismiss the appeal for lack of subject matter ju r is d ic tio n . We lack subject matter jurisdiction and must dismiss the appeal.

Case: 09-20441

Document: 00511081858

Page: 2

Date Filed: 04/15/2010

No. 09-20441 I . BACKGROUND A. F a c t u a l Background T h is case reaches us still in its infancy, and the record is accordingly u n d e r d e v e lo p e d . The facts that follow are drawn primarily from the complaint b e l o w and from attachments to motions filed in the district court. D e fe n d a n t s 1 are affiliated governmental contractors providing logistical s u p p o r t to the United States military in Iraq. Plaintiff­appellee Kristen Martin is the adult daughter of Donald Tolfree, a civilian employed by Defendants. T o lfr e e was recruited by Defendants in December 2006 to drive trucks in convoys in Iraq. Martin alleges that Tolfree relied on Defendants' assurances that he w o u ld be 100% safe and protected by the United States military during his e m p lo y m e n t in Iraq. Tolfree arrived in Iraq in January 2007, where he was a s s ig n e d to Logistics Support Area (LSA) Anaconda. In February 2007, he was a s k e d if he would volunteer to drive a "chase truck" in an upcoming convoy.2 T o lfr e e agreed to do so. M a rt in 's complaint alleges that Defendants acted negligently in executing t h e convoy operation. According to Martin's complaint, there was no written p o l ic y regarding the use of chase trucks, and Tolfree--who had been onsite for le s s than one month--was not told of any unwritten policies. Tolfree believed t h a t his duty was to follow the convoy from its departure point within LSA A n a c o n d a to the base's north gate, a distance of about ten miles. He believed t h a t he would be contacted by radio and instructed to turn around at the

Specifically, they are Halliburton; KBR, Inc.; Kellogg Brown & Root, Inc.; Kellogg Brown & Root Services, Inc.; and Service Employees International, Inc. The complaint filed also listed ten individual defendants as "John Doe." John Doe 1 is alleged to have been the "convoy commander," "an employee of Defendants acting in a supervisory/command capacity" over the decedent during the convoy operation at issue in this case. John Doe 1 is not a party to this appeal. For simplicity, we refer to appellants collectively as "Defendants." A "chase truck" is a semi-truck without an attached trailer that acts as a backup in the event that a truck with an attached trailer becomes disabled during the convoy.
2

1

2

Case: 09-20441

Document: 00511081858

Page: 3

Date Filed: 04/15/2010

No. 09-20441 a p p r o p r ia t e time. Tolfree's chase truck was equipped with a non-military radio, a n d a radio dead zone prevents non-military radio communications around the p e r im e t e r of LSA Anaconda. As a result, Tolfree followed the convoy past the n o r t h gate, at which point Defendants radioed for "the extras" to turn around. T o lfr e e did so, passing at least two vehicles at the rear of the convoy. The d r iv e r s of those vehicles confirmed with the convoy commander that the extra t r u c k s were no longer to be part of the convoy. The convoy commander did not c o n ta ct the sentry posted at the north gate about Tolfree's return. M ilit a r y protocol requires trucks such as the one Tolfree was driving to be a cc o m p a n ie d by gun trucks during a return to camp. The sentry posted at the n o r t h gate of LSA Anaconda saw Tolfree's chase truck returning and, noting that n o n e of Defendants' trucks was scheduled to enter the camp, applied protocol for d e a lin g with unscheduled and unescorted vehicles attempting to enter LSA A n a c o n d a . Tolfree died instantly when a gunner fired one hundred .50-caliber r o u n d s into the chase truck. M a r t in alleges that a representative of Defendants falsely informed her t h a t Tolfree had been killed by an insurgent's roadside bomb rather than by fr ie n d ly fire. Her complaint alleges that Defendants continued to misrepresent t h e circumstances of Tolfree's death as late as a year after the fact. B. T h e Logistics Civil Augmentation Program D e fe n d a n t s ' involvement in convoy operations in Iraq occurs under the a u sp ic e s of the Logistics Civil Augmentation Program (LOGCAP). In 1985, the U n it e d States Army issued Army Regulation 700­137, which initiated L O G C A P. Army Reg. 700­137, at 1­1 (Dec. 16, 1985). The LOGCAP

r e g u la tio n s describe LOGCAP's purpose as "to preplan for the use of civilian c o n t r a c to r s to perform selected services in wartime to augment Army forces. U t iliz a t io n of civilian contractors in a theater of operation will release military u n it s for other missions or fill shortfalls." 3 Id. The LOGCAP regulations

Case: 09-20441

Document: 00511081858

Page: 4

Date Filed: 04/15/2010

No. 09-20441 e x p r e s s ly state that "[c]ontractors will not be used to perform inherently g o v e r n m e n t a l functions." Id. at 3­2(d)(8). The term "governmental function" is d e fin e d as "[a] function which is so intimately related to the public interest as t o mandate performance by Government employees. These functions include t h o s e activities which require either the exercise of discretion in applying G o v e r n m e n t authority or the use of value judgements in making decisions for t h e Government." Id. at Glossary § I. O n December 14, 2001, under the authority of the LOGCAP Program, the A r m y awarded Contract No. DAAA09-02-D-0007 (the "LOGCAP III Contract") t o Brown & Root Services, Inc., a division of Kellogg Brown & Root.3 The

L O G C A P III Contract was designated a "rated order" contract, making its p e r fo r m a n c e mandatory under the Defense Production Act of 1950 (DPA), 50 U .S .C . app. §§ 2061­2171. The willful failure to perform a rated order contract c a r r ie s a criminal penalty. See id. §§ 2071(a) & 2073. Defendants aver that the lo g is tic s and transportation services in which Tolfree was engaged were p e r fo r m e d pursuant to Task Order 139, issued by the Army in August 2006. O n ly the first two pages of the LOGCAP III Contract are in the record, and Task O r d e r 139 is completely absent. Martin alleges (and Defendants admit in their a n sw e r) that there was a novation of the LOGCAP III Contract in 2003 that t r a n sfe r r e d contractual duties from Kellogg Brown & Root to Kellogg Brown & R o o t Services. The two pages from the LOGCAP III Contract that are in the r e c o r d bear a date stamp of December 14, 2001, which precedes the novation by a minimum of one year.

Some of Martin's allegations and the parties' arguments rely on the relationship of Defendants to each other and to the Government. Our resolution here does not require us to unravel those relationships, a task that would be challenging given the state of the record before us.

3

4

Case: 09-20441

Document: 00511081858

Page: 5

Date Filed: 04/15/2010

No. 09-20441 C. P r o c e d u r a l History M a rt in filed a diversity suit in district court on February 5, 2009, asserting s ta t e law tort claims against Defendants for their actions in recruiting Tolfree, e x e c u t in g the convoy operation, and misrepresenting the cause of his death.4 On A p r il 3, 2009, Defendants moved to dismiss for lack of subject matter jurisdiction u n d e r Rule 12(b)(1) of the Federal Rules of Civil Procedure, urging several d is tin c t theories: (1) official immunity; (2) derivative sovereign immunity; (3) im m u n it y under the DPA; and (4) preemption of state law under the combatant a c t iv i t ie s exception to the Federal Tort Claims Act (FTCA). Several exhibits w e r e attached to their motion, including two Army regulations, an Army field m a n u a l, and two pages of the LOGCAP III Contract.5 The district court denied t h e motion without opinion or explanation on June 8, 2009.6 Defendants then file d an answer and appealed the district court's order. The record does not r e f le c t that Defendants requested that the district court either explain its

The claims are for negligence, wrongful death, fraud and fraud in the inducement, intentional infliction of emotional distress, survivorship, and civil conspiracy to commit fraud. Martin also seeks punitive damages for fraud, malice, and gross negligence. We confess to being somewhat perplexed by Defendants' decision to move for dismissal under Rule 12(b)(1) without at least alternatively arguing that the case should be dismissed on the same grounds under Rule 12(b)(6) for failure to state a claim on which relief can be granted. The proper characterization of a motion to dismiss is not without legal consequences. "[T]he standard of Rule 12(b)(1) . . . while similar to the standard of Rule 12(b)(6), permits the court to consider a broader range of materials in resolving the motion." Williams v. Wynne, 533 F.3d 360, 365 n.2 (5th Cir. 2008) (citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986)). However, in our analysis of this appeal, we need not determine the proper characterization of the motion or the propriety of many of the attached documents. This is because our consideration of the LOGCAP III Contract excerpt is permitted by the stricter standard of Rule 12(b)(6), see Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498­99 (5th Cir. 2000), as is our discussion of the LOGCAP regulations, see Poindexter v. United States, 777 F.2d 231, 236 (5th Cir. 1985); see also Lane v. Halliburton, 529 F.3d 548, 554 (5th Cir. 2008) (describing the LOGCAP regulations). The remaining attached documents are unnecessary to our disposition, and we accordingly do not address whether they are properly considered. As a rule, "[d]istrict courts should state for the record the reasons for denying immunity." Morin v. Caire, 77 F.3d 116, 119 n.3 (5th Cir. 1996).
6 5

4

5

Case: 09-20441

Document: 00511081858

Page: 6

Date Filed: 04/15/2010

No. 09-20441 d e c is io n or certify the decision for interlocutory appeal under 28 U.S.C. § 1292(b).7 Before any briefs had been filed, Martin filed a motion before this c o u r t to dismiss the appeal as interlocutory; that motion was carried with the c a s e . The district court ordered further proceedings stayed pending the outcome o f this appeal. I I . DISCUSSION B e fo r e we can proceed to the merits of this appeal, we must examine w h e t h e r we have jurisdiction to do so. We have jurisdiction to determine our o w n jurisdiction. Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 169 (5 th Cir. 2009) (citing Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., I n c ., 481 F.3d 265, 268 (5th Cir. 2007)). As the appellants, Defendants bear the b u r d e n of establishing our appellate jurisdiction. Acoustic Sys., Inc. v. Wenger C o r p ., 207 F.3d 287, 289 (5th Cir. 2000). O u r appellate jurisdiction is ordinarily limited to "final decisions of the d is tr ic t courts of the United States." 28 U.S.C. § 1291. "For purposes of § 1291, a final judgment is normally deemed not to have occurred until there has been a decision by the District Court that ends the litigation on the merits and leaves n o t h in g for the court to do but execute the judgment." Henry, 566 F.3d at 171 (a lt e r a tio n s and internal quotation marks omitted) (quoting Midland Asphalt C o r p . v. United States, 489 U.S. 794, 798 (1989)). In addition to our jurisdiction

Section 1292(b) provides: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order . . . . 28 U.S.C. § 1292(b).

7

6

Case: 09-20441

Document: 00511081858

Page: 7

Date Filed: 04/15/2010

No. 09-20441 o v e r appeals from final decisions, we have statutory jurisdiction over appeals f r o m certain interlocutory orders and decrees under § 1292(a), but neither party u r g e s the application of that provision. Prospective appellants who seek to a p p e a l interlocutory orders that do not qualify under § 1292(a) are ordinarily lim it e d to the certification procedure of § 1292(b); as noted above, that procedure w a s not followed here. Thus, our jurisdiction must exist, if at all, under § 1291. D e fe n d a n t s urge that the collateral order doctrine recognized in Cohen v. B e n e fic ia l Industrial Loan Corp., 337 U.S. 541 (1949), supports jurisdiction.8 " T h e collateral order doctrine is best understood not as an exception to the `final d e c is io n ' rule laid down by Congress in § 1291, but as a `practical construction' o f it." Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (q u o tin g Cohen, 337 U.S. at 546). "[T]he collateral order doctrine accommodates a `small class' of rulings, not concluding the litigation, but conclusively resolving `c la im s of right separable from, and collateral to, rights asserted in the action.'" W ill v. Hallock, 546 U.S. 345, 349 (2006) (quoting Behrens v. Pelletier, 516 U.S 2 9 9 , 305 (1996)). "The claims are `too important to be denied review and too in d e p e n d e n t of the cause itself to require that appellate consideration be d e f e r r e d until the whole case is adjudicated.'" Id. (quoting Cohen, 337 U.S. at 5 4 6 ). The Supreme Court, in describing the requirements of the collateral order d o c t r in e , has emphasized the doctrine's limited application: T h e requirements for collateral order appeal have been d is tille d down to three conditions: that an order [1] conclusively d e t e r m in e the disputed question, [2] resolve an important issue c o m p le te ly separate from the merits of the action, and [3] be e ffe c t i v e l y unreviewable on appeal from a final judgment. The c o n d it io n s are stringent, and unless they are kept so, the underlying d o c tr in e will overpower the substantial finality interests § 1291 is m e a n t to further: judicial efficiency, for example, and the sensible

Indeed, Defendants' notice of appeal states that it "is based upon the collateral order doctrine" and does not refer to any other basis for appellate jurisdiction.

8

7

Case: 09-20441

Document: 00511081858

Page: 8

Date Filed: 04/15/2010

No. 09-20441 p o lic y of avoid[ing] the obstruction to just claims that would come f r o m permitting the harassment and cost of a succession of separate a p p e a ls from the various rulings to which a litigation may give rise. A c c o r d in g ly , we have not mentioned applying the collateral o r d e r doctrine recently without emphasizing its modest scope. And w e have meant what we have said; although the Court has been a s k e d many times to expand the small class of collaterally a p p e a la b le orders, we have instead kept it narrow and selective in it s membership. W ill, 546 U.S. at 349­50 (citations and internal quotation marks omitted; a lte r a tio n s in original); see also Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 6 0 5 (2009) ("In applying Cohen's collateral order doctrine, we have stressed that it must `never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered.'" (quoting D ig ita l Equip., 511 U.S. at 868)). T h e universe of orders from which collateral order review may be taken is r e la tiv e ly limited.9 The Supreme Court has identified a handful of orders that a r e collaterally reviewable,1 0 and we have allowed such review for others.1 1
9

We note that the denial of a motion to dismiss under Rule 12 may be immediately appealable under the collateral order doctrine in appropriate cases. See Behrens, 516 U.S. at 307 ("Mitchell [v. Forsyth, 472 U.S. 511 (1985),] clearly establishes that an order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a `final' judgment subject to immediate appeal."). These are orders denying: absolute immunity, Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982), qualified immunity under 42 U.S.C. § 1983, Mitchell, 472 U.S. at 530, a state's claim of Eleventh Amendment immunity, P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144­45 (1993), a claim of Speech or Debate Clause immunity, Helstoski v. Meanor, 442 U.S. 500, 508 (1979), and a criminal defendant's claim of double jeopardy, Abney v. United States, 431 U.S. 651, 660 (1977). Our cases have extended collateral order review to denials of: a defamation defendant's invocation of an anti-SLAPP statute, Henry, 566 F.3d at 181, immunity under Texas law for communications made during judicial, quasi-judicial, or legislative proceedings, Shanks v. AlliedSignal, Inc., 169 F.3d 988, 992 (5th Cir. 1999), Foreign Sovereign Immunities Act immunity, Stena Rederi AB v. Comision de Contratos del Comite Ejecutivo Gen., 923 F.2d 380, 385 (5th Cir. 1991), and qualified immunity under Title VII, Brown v. Tex. A & M Univ., 804 F.2d 327, 332 (5th Cir. 1986).
11 10

8

Case: 09-20441

Document: 00511081858

Page: 9

Date Filed: 04/15/2010

No. 09-20441 D e fe n d a n ts have seized upon the fact that such orders typically involve "denials o f various forms of immunity." Henry, 566 F.3d at 177. However, the forms of im m u n i t y that may be vindicated on appeal at an early stage through collateral o r d e r review are those that involve "not simply a right to prevail, but a right not t o be tried." Id. Thus, the relevant inquiry in determining whether an

" im m u n it y " is subject to immediate appeal under the collateral order doctrine is whether the asserted immunity is from suit or merely from liability. Van C a u w e n b e r g h e v. Biard, 486 U.S. 517, 524 (1988) ("The critical question . . . is w h e t h e r `the essence' of the claimed right is a right not to stand trial." (quoting M itch ell , 472 U.S. at 525)); Henry, 566 F.3d at 178 ("`There is a crucial d is t in c t io n between a right not to be tried and a right whose remedy requires the d i s m is s a l of charges. A right not to be tried in the sense relevant to the Cohen e x ce p tio n rests upon an explicit statutory or constitutional guarantee that trial w ill not occur.'" (quoting Midland Asphalt, 489 U.S. at 801)). Accordingly, the S u p r e m e Court has warned against generalizing from orders that are recognized a s immediately appealable under the collateral order doctrine because almost a n y right can be characterized as a right not to be confronted with the burdens o f trial. Will, 546 U.S. at 350­51; Swint v. Chambers County Comm'n, 514 U.S. 3 5 , 43 (1995). Instead, we proceed on a categorical basis, looking only at

w h e t h e r "the class of claims, taken as a whole, can be vindicated by other m e a n s " than immediate appeal. Mohawk Indus., 130 S. Ct. at 605. W e must therefore examine each of the rights Defendants asserted before t h e district court and now seek to appeal to determine whether the district c o u r t 's denial of that claimed right is a collateral order that Defendants may im m e d i a t e ly appeal. In undertaking this jurisdictional analysis, we do not e x p lo r e the underlying merits of any of the claims Defendants press on appeal.

9

Case: 09-20441

Document: 00511081858

Page: 10

Date Filed: 04/15/2010

No. 09-20441 A. O f f ic i a l Immunity D e fe n d a n t s first claim that we have jurisdiction to review the denial of t h e ir official immunity defense under Westfall v. Erwin, 484 U.S. 292 (1988). In H o u s to n Community Hospital, we considered whether such a denial constituted a collateral order. We concluded that "[w]hile a denial of official immunity is an a p p e a la b le order, the claim of immunity must be `substantial' to justify an a p p e l la t e court's collateral order review." Houston Cmty. Hosp., 481 F.3d at 2 6 8 ­ 6 9 (footnote omitted). To be "substantial," such a claim must be more than " m e r e ly `colorable.'" Id. at 269 n.11. A s originally articulated, the Westfall defense provided that "absolute im m u n it y from state-law tort actions should be available only when the conduct o f federal officials is within the scope of their official duties and the conduct is d is c r e t io n a r y in nature." Westfall, 484 U.S. at 297­98. Shortly after the

W es tfa ll decision, Congress enacted the Federal Employees Liability Reform and T o rt Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563 (1988), one e ffe c t of which was to eliminate the requirement that the acts of federal officials b e discretionary. See 28 U.S.C. § 2679(d)(1); Houston Cmty. Hosp., 481 F.3d at 2 6 9 . However, non-governmental entities--such as Defendants--that seek the p r o t e ct io n afforded by the Westfall defense remain subject to the requirement th a t their acts be discretionary. Houston Cmty. Hosp., 481 F.3d at 269. "[B]y `d i s c re t io n a r y ,' it is evident in context that the [Supreme] Court meant activities t h a t involve `policy-making work for the United States Government.'" NF

I n d u s., Inc. v. Exp.­Imp. Bank of U.S., 846 F.2d 998, 1001 (5th Cir. 1988) (per c u r ia m ) (quoting Westfall, 484 U.S. at 299). Therefore, to establish our appellate ju r is d ic t io n over the denial of their asserted Westfall defense, Defendants must m a k e a substantial showing that their allegedly tortious conduct was within the s c o p e of their official duties and was discretionary in the sense that it involved g o v e r n m e n t a l policy-making activities. 10

Case: 09-20441

Document: 00511081858

Page: 11

Date Filed: 04/15/2010

No. 09-20441 W e cannot conclude, based on the limited record before us, that D e f e n d a n t s have made a substantial showing of entitlement to official immunity u n d e r Westfall. As discussed above, the LOGCAP regulations expressly provide t h a t "[c]ontractors will not be used to perform inherently governmental fu n c t io n s ." Army Reg. 700­137, at 3­2(d)(8). The term "governmental function" is defined as "[a] function which is so intimately related to the public interest as t o mandate performance by Government employees. These functions include t h o s e activities which require either the exercise of discretion in applying G o v e r n m e n t authority or the use of value judgements in making decisions for t h e Government." Id. at Glossary § I (emphases added). This language

e x p r e s s ly precludes Defendants from engaging in discretionary conduct, a p r e r e q u is it e for entitlement to the Westfall defense.1 2 Defendants cite several a ction s that they performed--allowing Tolfree's truck to return to LSA Anaconda w it h o u t coordinating its return and training and supervising employees--but t h e s e do not rise to the level of being "activities that involve `policy-making work f o r the United States Government.'" NF Indus., 846 F.2d at 1001 (quoting W es tfa ll, 484 U.S. at 299). We therefore conclude that we lack jurisdiction over th e district court's denial of Westfall immunity.1 3 B. D e r i v a t i v e Sovereign Immunity D e fe n d a n t s also claim that the denial of their claim of derivative sovereign

In light of our conclusion that, for determining our appellate jurisdiction, Defendants have failed to set forth a substantial claim of official immunity under the discretion prong of Westfall, we do not address the other prong--whether Defendants were acting within the scope of their official duties. Our analysis is necessarily hampered by the absence from the record of the substantive portions of the LOGCAP III Contract and Task Order 139, as well as any other documents that might prove relevant. Accordingly, we limit our holding on this aspect of the appeal to a determination that Defendants have failed to make the requisite showing on the record before us, and we do not foreclose the possibility that Defendants may ultimately demonstrate that they acted with the requisite discretion to warrant application of the Westfall defense.
13

12

11

Case: 09-20441

Document: 00511081858

Page: 12

Date Filed: 04/15/2010

No. 09-20441 i m m u n it y "under theories of agency and state action" is an immediately a p p e a la b le collateral order.1 4 In Houston Community Hospital, a private

in s u r a n c e carrier under contract with the Government to provide health benefit p la n s to federal employees sought to appeal the denial of its claim of derivative s o v e r e ig n immunity. 481 F.3d at 267­68. We held that "a denial of [derivative] s o v e r e ig n immunity is not subject to immediate review under the collateral order d o c t r i n e . " Id. at 280. We are bound by this precedent. See United States v. R o s e , 587 F.3d 695, 705 (2009) (per curiam). Accordingly, we lack jurisdiction t o review the district court's denial of Defendants' claim of derivative sovereign im m u n i ty . C. D e f e n s e Production Act T h e district court's order also denied Defendants' claim of immunity under § 707 of the DPA, 50 U.S.C. app. § 2157. The DPA authorizes the executive to r e q u ir e the acceptance and priority performance of designated contracts, id. § 2071(a), under threat of criminal penalties, id. § 2073. Section 707 provides: N o person shall be held liable for damages or penalties for any act o r failure to act resulting directly or indirectly from compliance with a rule, regulation, or order issued pursuant to [the DPA], n o tw ith s ta n d in g that any such rule, regulation, or order shall t h e r e a ft e r be declared by judicial or other competent authority to be in v a lid . . . .

Defendants' agency theory is based primarily on Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940). That case held that landowners on the Missouri River whose land was injured by a dam project could not seek damages from a governmental contractor engaged to build the dam where the contractor did not exceed its validly conferred authority. Id. at 21. Defendants' state action theory seeks to combine Dobyns v. E-Systems, Inc., 667 F.2d 1219 (5th Cir. 1982), and McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (11th Cir. 2007). In Dobyns, we concluded that a governmental contractor operating an early warning surveillance station in the Sinai Peninsula was a state actor subject to constitutional limitations on its behavior. 667 F.2d at 1221­22. In McMahon, the Eleventh Circuit considered the possibility that "private contractor agents may be entitled to some form of immunity that protects their making or executing sensitive military judgments . . . ." 502 F.3d at 1351. The McMahon court ultimately declined to determine whether such an immunity existed. Id. at 1355­56.

14

12

Case: 09-20441

Document: 00511081858

Page: 13

Date Filed: 04/15/2010

No. 09-20441 I d . § 2157. The Supreme Court has noted that § 707 "plainly provides immunity . . . [b]y expressly providing a defense to liability . . . ." Hercules, Inc. v. United S ta t e s , 516 U.S. 417, 429 (1996). However, an immunity that merely provides a defense to liability cannot justify collateral order review. See Van

C a u w e n b e r g h e , 486 U.S. at 524 ("The critical question . . . is whether `the e s s e n c e ' of the claimed right is a right not to stand trial." (quoting Mitchell, 472 U .S . at 525)); Henry, 566 F.3d at 178.1 5 Defendants' claim of immunity under § 707 thus fails Cohen's unreviewability prong and "can be adequately v i n d ic a t e d ," Mohawk Indus., 130 S. Ct. at 605, on review from a final judgment u n d e r § 1291 or using the certification procedure for interlocutory appeal a v a ila b le under § 1292(b). D. C o m b a t a n t Activities Exception F i n a lly , Defendants argue that we have jurisdiction to review the denial o f their claim that Martin's causes of action are preempted by the combatant a ctiv itie s exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(j). T h e FTCA abrogates the Government's sovereign immunity for torts committed b y its employees in circumstances where, if the Government were a private p e r s o n , the Government would be liable under state law. 28 U.S.C. §§ 1346(b)(1) & 2674; Villafranca v. United States, 587 F.3d 257, 260 (5th Cir. 2009). The G o v e r n m e n t has not, however, abrogated its sovereign immunity for torts c o m m it t e d by governmental contractors and their employees. 28 U.S.C. § 2671.

As we stated in Henry: The Supreme Court has warned, however, that one must be careful not to play word games with the concept of a right not to be tried, for virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a right not to stand trial. There is a crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges. A right not to be tried in the sense relevant to the Cohen exception rests upon an explicit statutory or constitutional guarantee that trial will not occur. 566 F.3d at 178 (citations, alterations, and internal quotation marks omitted).

15

13

Case: 09-20441

Document: 00511081858

Page: 14

Date Filed: 04/15/2010

No. 09-20441 T h e combatant activities exception withdraws, in the case of a suit against the G o v e r n m e n t, both the jurisdictional grant and the abrogation of sovereign im m u n it y for "[a]ny claim arising out of the combatant activities of the military o r naval forces, or the Coast Guard, during time of war." Id. § 2680(j). D e fe n d a n t s argue that the combatant activities exception, which they a c k n o w le d g e "does not apply directly to government contractors," should be read a s preempting Martin's state law claims. They cite the decisions in Saleh v. T i ta n Corp., 580 F.3d 1 (D.C. Cir. 2009), Koohi v. United States, 976 F.2d 1328 (9 th Cir. 1992), and Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486 (C.D. Cal 1 9 9 3 ), as establishing both that state law causes of action against governmental c o n tr a c t o r s may be preempted by the combatant activities exception and that M a r t in 's state law causes of action should be preempted here. As with

D e fe n d a n t s ' other defenses, the claim of preemption was denied by the district c o u r t , and Defendants seek immediate appeal of that denial under the collateral o r d e r doctrine. W h ile the denial of a claim of preemption by the combatant activities e x c e p tio n may be reviewed on appeal from a final judgment under § 1291 or, in a n appropriate case, on interlocutory appeal under § 1292(b), it may not be im m e d ia te ly appealed under the collateral order doctrine. We have previously d e te r m in e d that the denial of a claim that state law is preempted by federal law is not an order that may be immediately appealed under the collateral order d o c tr in e . See Houston Cmty. Hosp., 481 F.3d at 268, 280 (finding no appellate ju r is d ic tio n over an uncertified denial of a governmental contractor's summary ju d g m e n t motion that asserted preemption of a hospital's action by the Federal E m p lo y e e Health Benefits Act).1 6 This approach is reflected in the Eleventh

We are not alone in treating denials of claims of preemption as not subject to immediate review under the collateral order doctrine. See, e.g., Joy Global, Inc. v. Wis. Dep't of Workforce Dev. (In re Joy Global, Inc.), 257 F. App'x 539, 541 (3d Cir. 2007) (holding that

16

14

Case: 09-20441

Document: 00511081858

Page: 15

Date Filed: 04/15/2010

No. 09-20441 C i r c u it 's McMahon decision, which held that the denial of a contractor's claim o f preemption under the combatant activities exception is not an immediately a p p e a la b le collateral order. McMahon, 502 F.3d at 1366 (holding that the court la c k e d appellate jurisdiction over an uncertified denial of a Rule 12(b)(6) motion to dismiss that asserted preemption by the combatant activities exception). W e conclude, like the Eleventh Circuit in McMahon, that the combatant a c t iv it ie s exception is not subject to a sui generis exemption from the ordinary ju r is d ic tio n a l requirements for denials of preemption claims. This conclusion fo llo w s from Saleh, on which Defendants rely heavily in pressing their p r e e m p tio n argument. In Saleh, Iraqi nationals who had been imprisoned at the A b u Ghraib military prison during the war in Iraq brought claims against two p r iv a t e military contractors providing interrogation and translation services, r e s p e c t iv e ly , asserting that they had been abused by employees of the c o n tr a c to r s . Id. at 1­2. The district court in that case initially denied the c o n t r a c to r s ' Rule 12 motion to dismiss based on combatant activities preemption b e ca u se the contractors "ha[d] not produced sufficient factual support to justify [ th e doctrine's] application." Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 17 (D .D .C . 2005) ("Ibrahim I"). The district court ordered limited discovery

the denial of a claim that state law claims were preempted by the Employee Retirement Income Security Act (ERISA) was not a collateral order); Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338 F.3d 1353, 1359 (Fed. Cir. 2003) (stating that "Section 1292(b) more appropriately addresses the appeal of" claims that state law is preempted by the federal patent laws (citing Taylor v. PPG Indus., Inc., 256 F.3d 1315 (Fed. Cir. 2001))); Mathis v. Henderson, 243 F.3d 446, 448­49 (8th Cir. 2001) (noting that a claim that Title VII preempted FTCA claims does not provide jurisdiction but accepting pendent appellate jurisdiction where the district court's refusal to accept an FTCA certification provided independent jurisdiction and turned on the same issues); Jordan v. Avco Fin. Servs. of Ga., Inc., 117 F.3d 1254, 1257 (11th Cir. 1997) (dismissing an interlocutory appeal of denial of a motion to dismiss after concluding that "the [McCarran­Ferguson] Act is a statute of preemption rather than one granting immunity"); Wood v. United States, 995 F.2d 1122, 1130 (1st Cir. 1993) (en banc) (holding that "interlocutory appeal did not lie from the district court's decision" on "whether or not federal law preempted certain of Wood's state law claims"), abrogated on other grounds by Osborn v. Haley, 549 U.S. 225 (2007).

15

Case: 09-20441

Document: 00511081858

Page: 16

Date Filed: 04/15/2010

No. 09-20441 a d d r e s s in g a number of questions: O t h e r than Titan's Statement of Work, defendants[ ] have produced n o t h in g beyond limited assertions to meet their factual burden of s h o w in g that they are entitled to [preemption]. More information is needed on what exactly defendants' employees were doing in Iraq. W h a t were their contractual responsibilities? To whom did they r e p o r t? How were they supervised? What were the structures of c o m m a n d and control? I d . at 19. Following a year of discovery, the contractors moved for summary ju d g m e n t, again asserting preemption. Ibrahim v. Titan Corp., 556 F. Supp. 2d 1 (D.D.C. 2007) ("Ibrahim II"), aff'd in part, rev'd in part, Saleh, 580 F.3d 1. The d i s tr ic t court undertook a fact-intensive analysis and found that the translators h a d proven that they were entitled to preemption as a matter of law, id. at 10, b u t that the interrogators had not conclusively demonstrated such an e n t it le m e n t , id. at 11. On appeal, the Court of Appeals for the District of C o l u m b ia Circuit reversed in part, holding that the claims against both c o n tr a c to r s were preempted by the combatant activities exception. Saleh, 580 F .3 d at 7. However, the court's analysis was--like the district court's--reliant u p o n the facts obtained through the discovery process. See id. at 4 ("We think t h e district judge properly focused on the chain of command and the degree of in t e g r a t io n that, in fact, existed between the military and both contractors' e m p lo y e e s . . . ."); id. at 10 (considering as significant the military's retention of "co m m a n d authority [and] operational control over contractors").1 7 H e r e , by contrast, we are confronted with circumstances comparable to t h o s e present in Ibrahim I--a record too scant to permit an informed decision a b o u t the applicability of preemption under the combatant activities

In discussing Koohi, Bentzlin, Ibrahim I, Ibrahim II, and Saleh, we express neither agreement nor disagreement with the tests or facts found significant by the respective courts that decided those cases, as our holding renders it unnecessary for us to decide what must be shown to support preemption under the combatant activities exception.

17

16

Case: 09-20441

Document: 00511081858

Page: 17

Date Filed: 04/15/2010

No. 09-20441 e x c e p t io n -- t h a t prompted the district court in that case to order limited d is c o v e r y and development of the factual record. Instructively, the two appeals in Saleh reached the D.C. Circuit using the normal machinery of §§ 1291 and 1 2 9 2 (b )-- t h e plaintiffs whose claims were dismissed on summary judgment a g a in s t one defendant appealed from a final judgment under § 1291, while the c o n t r a c to r whose summary judgment motion was denied obtained certification fo r interlocutory appeal under § 1292(b). Id. We agree that an appeal from an a p p r o p r ia t e ly developed and supported interlocutory order denying a claim of p r e e m p tio n under the combatant activities exception may be handled using the c e r tific a tio n procedure available under § 1292(b). See id. at 4 (accepting

ju r is d ic t io n of certified § 1292(b) appeal of order denying claim of combatant a c tiv itie s preemption); see also McMahon, 502 F.3d at 1366; E.I. DuPont de N e m o u r s & Co. v. Sawyer, 517 F.3d 785, 792 (5th Cir. 2008) (accepting in t e r lo c u t o r y appeal, under § 1292(b), over denial of claims of preemption under th e doctrine of San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1 9 5 9 ) , and by provisions of ERISA). That certification procedure was not

fo llo w e d in multiple respects, and we lack jurisdiction to review Defendants' c la im that Martin's state law causes of action are preempted. E. P e n d e n t Appellate Jurisdiction D e fe n d a n t s claim that because they have "established that the District C o u rt' s denial of at least one of its asserted defenses is a collateral order, [we] h a [v e ] jurisdiction to review all of [Defendant's] asserted defenses" under the p e n d e n t appellate jurisdiction doctrine. We disagree that Defendants have e s ta b lis h e d jurisdiction over at least one asserted defense, and we consequently d o not assess the propriety of exercising pendent appellate jurisdiction here. I n a similar vein, Martin asserts that only Kellogg Brown & Root is a s ig n a t o r y to the LOGCAP III Contract and that the remaining Defendants are n o t entitled to immunity or collateral order review of the denial of that 17

Case: 09-20441

Document: 00511081858

Page: 18

Date Filed: 04/15/2010

No. 09-20441 im m u n it y . In light of our determination that we lack jurisdiction over any of the c la im s , we need not address this contention further. I I I . CONCLUSION D e fe n d a n t s have failed to carry their burden of establishing our j u r i s d i c t io n over any aspect of this interlocutory appeal. Accordingly, we

G R A N T Martin's motion to dismiss and DISMISS the appeal for lack of subject m a t te r jurisdiction. D e fe n d a n t s ' claims. T h e motion to dismiss is GRANTED; the appeal is DISMISSED. Costs s h a ll be borne by Defendants. In doing so, we express no opinion on the merits of

18