529 F.3d 548 (5th Cir. 2008), 06-20874, Lane v. Halliburton

Docket Nº:06-20874, 06-20905 and 06-20915.
Citation:529 F.3d 548
Party Name:Reginald Cecil LANE, an individual, by and through Linda Marlene Lane, as the duly appointed Conservator/Guardian of Reginald Cecil Lane; Linda Marlene Lane, an individual, Plaintiffs-Appellants, v. HALLIBURTON, a Corporation; Kellogg Brown and Root Holdings, LLC; Kellogg Brown & Root, Inc., a Corporation and Wholly Owned Subsidiary of Halliburton
Case Date:May 28, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 548

529 F.3d 548 (5th Cir. 2008)

Reginald Cecil LANE, an individual, by and through Linda Marlene Lane, as the duly appointed Conservator/Guardian of Reginald Cecil Lane; Linda Marlene Lane, an individual, Plaintiffs-Appellants,

v.

HALLIBURTON, a Corporation; Kellogg Brown and Root Holdings, LLC; Kellogg Brown & Root, Inc., a Corporation and Wholly Owned Subsidiary of Halliburton and Kellogg Brown and Root Holdings, LLC; Service Employees International, Inc., a Foreign Corporation and Wholly Owned Subsidiary of Halliburton and Kellogg Brown and Root International, Inc.; DII Industries, LLC, a Wholly Owned Subsidiary of Halliburton Energy Services, Inc., a Corporation; Halliburton Energy Services, Inc., a Corporation; Brown & Root Services, a Division of Kellogg Brown and Root, Inc., a Corporation; Kellogg Brown & Root Services, Inc., a Corporation and Wholly Owned Subsidiary of Kellogg Brown and Root, Inc.; Kellogg Brown and Root International, Inc., a Corporation and a Wholly Owned Subsidiary of Kellogg Brown and Root, Inc., a Corporation; Strategic Ecomm, Inc.; Doe Defendants 1 through 10, Defendants-Appellees.

Kevin Smith-Idol, Individually Plaintiff-Appellant,

v.

Halliburton, a Corporation; Kellogg Brown & Root, Inc., a Corporation and Wholly Owned Subsidiary of Haliburton; Service Employees International, Inc., a Foreign Corporation and Wholly Owned Subsidiary of Halliburton; Kellogg Brown & Root Services, Inc., a Subsidiary of Kellogg Brown & Root; DII Industries, LLC, the Parent Company of Kellogg Brown & Root; Kellogg Brown and Root International, Inc., the Parent Company of Service Employees International, Inc., Defendants-Appellees.

Ingrid Fisher, individually and as successor in interest to decedent Steven Fisher; Kristen Fisher, individually and as successor in interest to decedent Steven Fisher; Steven Fisher, Jr., a minor, individually and as successors in interest to decedent Steven Fisher by and through next friend Ingrid Fisher; Kathleen Fisher, a minor individually and as successors in interest to decedent, Steven Fisher, by and through next friend Ingrid Fisher; Marjorie Bell-Smith, individually and as successor in interest to decedent Timothy Bell; Cha Sadie Tunstall, a minor, individually and as successor in interest to decedent Timothy Bell by and through her next friend Jacqueline Tunstall; Andrew Jackson Bradley, individually and as successor in interest to decedent William Bradley; Hollie Hulett, individually and as successor in interest to decedent Steven Hulett; Alexandria Slingerland, individually and as successor in interest to decedent Steven Hulett; Jack Slingerland, individually and as successor in interest to decedent Steven Hulett; Lois Parker, individually and as successor in interest to decedent Jeffrey Parker; Michael Brezovay; Nelson Howell; Betsy Montegue, individually and as successor in interest to decedent Jack Montegue; Jacquelyne Montegue, a minor inividually and as successor in interest to decedent Jack Montegue, by and through her next friend, Betsy Montegue; Donna Howell; Jackie Lester; Naomi Lester; William J. Peterson; Edward Sanchez, Jr.; Dana Sanchez; Calvin Keith Stanley; Raymond T. Stannard; Ricky L. Tollison; Danny R. Wood; Lisa Hulett, individually and as successor in interest to decedent Steven Hulett; April Johnson, individually and as successor in interest to decedent Tony Johnson; James Blackwood; Joann Blackwood; Nicholas T. Caffey; a minor, individually and as successor in interest to decedent Timothy Bell, by and through his next friend Karen Caffey; Timothy E. Caffey, Individually and as successor in interest to decedent Timothy Bell, Plaintiffs-Appellants,

v.

Halliburton, a Corporation; Kellogg Brown & Root, Inc., a Corporation and Wholly Owned Subsidiary of Halliburton and Kellogg Brown & Root Holdings, LLC; Service Employees International, Inc., a Foreign Corporation and Wholly Owned Subsidiary of Halliburton and Kellogg Brown & Root International, Inc.; Kellogg Brown & Root Services, Inc., a Corporation and a Wholly Owned Subsidiary of Kellogg Brown & Root, Inc.; DII Industries, LLC, a Wholly Owned Subsidiary of Halliburton Energy Services, Inc., a Corporation; Kellogg Brown and Root International, Inc., a Corporation and a Wholly Owned Subsidiary of Kellogg Brown & Root, Inc., a Corporation, Defendants-Appellees.

Nos. 06-20874, 06-20905 and 06-20915.

United States Court of Appeals, Fifth Circuit.

May 28, 2008

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Kenneth T. Fibich , Fibich, Hampton & Leebron, David J. Beck , David Michael Gunn (argued), Russell Stanley Post , Matthew Paul Whitley , Beck, Redden & Secrest, Houston, TX, Christina Anne Fountain , Lopez, Hodes, Restaino, Milman & Skilkos, Newport Beach, CA, for Plaintiffs-Appellants.

Tobias Anthony Cole (argued), Midani, Hinkle & Cole, LLP, Houston, TX, for Smith-Idol.

Raymond B. Biagini , Herbert L. Fenster (argued), Lawrence Steven Ebner , David Kasanow , McKenna, Long & Aldridge, Washington, DC, Katie Jean Colopy , Michael L. Rice , Jones Day , Dallas, TX, James H. Hall, Jones Day, Houston, TX, for Defendants-Appellees.

Daniel Farris Crowder , Beck & Crowder, Houston, TX, for Strategic Ecomm, Inc.

Michael S. Raab , U.S. Dept. of Justice, Civ. Div., Washington, DC, for U.S., Amicus Curiae.

Katharine Ruth Latimer , Eric Gordon Lasker , Joe Gregory Hollingsworth , Spriggs & Hollingsworth, Washington, DC, for Nat. Defense Indus. Ass'n, Amicus Curiae.

Appeals from the United States District Court for the Southern District of Texas.

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Before KING , DeMOSS and SOUTHWICK , Circuit Judges.

SOUTHWICK , Circuit Judge:

This appeal consolidates three cases brought by civilian truck drivers, or their spouses and dependents (collectively “Plaintiffs" ), against Halliburton, Kellogg Brown & Root, Inc., and various subsidiaries (collectively “KBR" ), for injuries sustained while working for KBR in Iraq. The district court dismissed all of the Plaintiffs' claims with prejudice, holding that their cases were nonjusticiable under the political question doctrine. On appeal, the Plaintiffs argue that KBR has not shown that resolving their tort claims will require the district court to answer a political question. We agree to the extent of concluding that the case needs further factual development before it can be known whether that doctrine is actually an impediment. We therefore reverse and remand.

I. FACTS AND PROCEEDINGS

A. Factual Background

Following the terrorist attacks of September 11, 2001, the United States led a military invasion of Afghanistan and, later, Iraq. In order to support its military mission, the United States Army awarded KBR a contract under the authority of its Logistics Civil Augmentation Program (“LOGCAP" ). Pursuant to the LOGCAP contract, KBR provided logistical support services to the military forces operating in Iraq.

Under LOGCAP, the Army is authorized to employ “civilian contractors to perform selected services in wartime to augment Army forces." U.S. Army Reg. 700-137, at 1-1 (Dec. 16, 1985). LOGCAP contracts allow the Army to “achieve the maximum combat potential ... by capitalizing on the civilian sector ...." Id. at 2-1(a). The record contains ample evidence that the military finds the use of civilian contractors in support roles to be an essential component of a successful war-time mission. Army Regulations provide that contractors employed pursuant to LOGCAP are not under the direct supervision of the military. U.S. Army Reg. 700-137, at 3-2(d). However, the regulations also establish that the military must assess the risk of any mission and determine whether contractor support is suitable in certain situations and locations. Id. at 2-4(b), 3-1(a). This assessment must consider “the safety of contractor personnel." Id. at 3-1(a).

The Army Field Manual makes clear that the military is responsible for providing adequate force protection and a safe workplace for contractors and their employees who are performing support services overseas. FM 3-100.21, at 6-4 to 6-6; see also Army Reg. 715-9, at 1-5(k)(2)-(3) (Oct. 29, 1999). The provisions of the LOGCAP contract and the relevant implementing Task Orders make the responsibility of the military explicit to provide security-related intelligence gathering and force protection for KBR convoys in Iraq.

To fulfill its obligations under the LOGCAP contract, KBR recruited civilian truck drivers in the United States to work in Iraq. Plaintiffs assert that KBR's recruitment materials misrepresented the risks that prospective employees would face in Iraq. Plaintiffs allege that KBR portrayed the work that the Plaintiffs would be performing as rebuilding activity and told recruits that they would not be sent to work in a “war zone or combat area." To support their claims, Plaintiffs point to information such as a web site that assured applicants that “[f]ull 24 hour a day U.S. military protection will be in place to insure safety. With new heightened security you'll be 100% safe." In addition, KBR circulated a memorandum

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to its employees asserting that while their work would be performed in a “hostile environment ... [t]his does not mean your safety will be compromised." The Plaintiffs allege that these and other misrepresentations by KBR regarding the nature of the work and the level of safety the Plaintiffs could expect in Iraq induced Plaintiffs to enter into and remain in the employment of KBR.

Plaintiffs allege that KBR's promises of a safe work environment were proven false in April 2004. On April 8, 2004, Plaintiff Kevin Smith-Idol...

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