Harris v. Kellogg Brown & Root Serv. Inc, 09-2325.

Decision Date17 August 2010
Docket NumberNo. 09-2325.,09-2325.
Citation618 F.3d 398
PartiesCheryl HARRIS, Co-administratrix of the Estate of Ryan D. Maseth, deceased; Douglas Maseth, Co-Administrator of the Estate of Ryan D. Maseth, deceased,v.KELLOGG BROWN & ROOT SERVICES, INC., Appellant.
CourtU.S. Court of Appeals — Third Circuit

Patrick K. Cavanaugh, (argued), Stephen J. Del Sole, William S. Stickman, IV, Del Sole Cavanaugh Stroyd LLC, Pittsburgh, PA, for Appellee.

Raymond B. Biagini, Kurt J. Hamrock, Michelle L. Hylton, Daniel L. Russell, Jr., McKenna, Long & Aldridge, Washington, DC, for Appellant.

John R. Dingess, Joseph L. Luciana, III, (argued), Dingess, Foster, Luciana, Davidson & Chleboski LLP, Pittsburgh, PA, for Appellant.

William D. Wickard, K & L Gates, Pittsburgh, PA, for Appellant.

Before SMITH, FISHER, and COWEN, Circuit Judges.


SMITH, Circuit Judge.

This case raises interesting and important questions about the scope of the political question doctrine and the Federal Tort Claims Act's “combatant activities” exception. We do not reach those questions now, however, because they are not properly before us. We must dismiss this premature appeal for lack of jurisdiction.


This appeal arises from the accidental death of Staff Sergeant Ryan Maseth, an active duty Army Ranger and Green Beret serving in Iraq. On January 2, 2008, Sergeant Maseth was showering in his quarters when the electric water pump servicing the building short-circuited. Because the building's electrical system was not properly grounded, a charge flowed through the pipes and water, shocking Sergeant Maseth and inducing cardiac arrest.

His parents, Cheryl Harris and Douglas Maseth (collectively, Plaintiffs) filed a wrongful death and survival action against Kellogg Brown & Root Services, Inc. (KBRSI) in Pennsylvania state court. KBRSI is a government contractor that performs various services for the United States military in combat zones, including Iraq. Pursuant to a contract with the Army, KBRSI was responsible for electrical maintenance in the building in which Sergeant Maseth was electrocuted. Plaintiffs allege that the electrical problems in Sergeant Maseth's building were well-known; that KBRSI negligently failed to repair them; and that this negligence caused the death of their son.

After properly removing the suit to the United States District Court for the Western District of Pennsylvania,1 KBRSI moved to dismiss under Rule 12 of the Federal Rules of Civil Procedure. KBRSI identified two grounds for dismissal. First, it argued that the case presented non-justiciable political questions. See Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Second, it argued that it was immune from suit under the “combatant activities” exception to the Federal Tort Claims Act's waiver of sovereign immunity. See 28 U.S.C. § 2680(j) (preserving immunity to [a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war”). The parties conducted several months of discovery related to this motion.

On March 31, 2009, the District Court denied the motion to dismiss without prejudice. On the political question issue, it concluded:

Upon consideration of the present record ... the Court finds that Plaintiffs' claims do not present non-justiciable political questions.... The principles of separation of powers will not be violated by the Court resolving the merits of Plaintiffs' claims. Accordingly, [KBRSI's] motion to dismiss Plaintiffs' claims based on the political question doctrine is denied, without prejudice. If further factual development illuminates the presence of political questions in this action, [KBRSI] may renew its motion at that time.

The Court also held that KBRSI was not entitled to immunity under the combatant activities exception “at this time” but emphasized that its decision was informed by the fact that only “limited discovery” had been conducted to date.

KBRSI sought certification for an interlocutory appeal under 28 U.S.C. § 1292(b). That too was denied. The District Court concluded first that its March 31 order did not involve a “controlling” question of law. See 28 U.S.C. § 1292(b). It also held that there was no substantial basis for difference of opinion, and that allowing an interlocutory appeal would not materially advance the ultimate termination of the litigation. Id. The District Judge again noted that the case was in the early stages of discovery, and that KBRSI's motion to dismiss was denied without prejudice. She reiterated that she would entertain a renewed motion, if one was warranted in light of the facts obtained through further discovery. In the interim, however, she thought Plaintiffs should have the opportunity to conduct merits discovery-of which there had been virtually none, nearly a year and a half after Sergeant Maseth's death-without the delay that an appeal would inevitably cause.

Instead of proceeding in the District Court, KBRSI immediately filed a Notice of Appeal. It argues that the District Court erred by rejecting its political question and § 2680(j) defenses. On May 7, 2009, we ordered the parties to provide briefing as to whether we have jurisdiction. KBRSI insists that we do; Plaintiffs disagree.


28 U.S.C. § 1291 gives us jurisdiction over the “final decisions” of the district courts. “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). KBRSI concedes that the order denying its motion to dismiss does not fit this description. It argues, however, that the order is immediately reviewable under the collateral order doctrine set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). This doctrine “is best understood not as an exception to the ‘final decision’ rule laid down by Congress in § 1291, but as a ‘practical construction’ of it,” Digital Equip. Corp. v. Desktop Direct, 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (quoting Cohen, 337 U.S. at 546, 69 S.Ct. 1221), which recognizes that [w]hile a final judgment always is a final decision, there are instances in which a final decision is not a final judgment.” Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (quoting Stack v. Boyle, 342 U.S. 1, 12, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (Jackson, J., concurring in part)).

To establish collateral order jurisdiction, KBRSI must show that the District Court's order (1) conclusively determined (2) “an important issue completely separate from the merits of the action” and (3) “would be effectively unreviewable on appeal from a final judgment.” Will v. Hallock, 546 U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006). We conclude that the order appealed did not “conclusively determine” whether KBRSI could successfully invoke the political question doctrine or the combatant activities exception. Therefore, the Cohen test is not satisfied, and we need not address the other two prongs of the test. Jones v. Lilly, 37 F.3d 964, 966 (3d Cir.1994) (noting that all three prongs of the Cohen test must be satisfied before collateral order review is appropriate).

The Supreme Court has used varying language to implement the “conclusively determined” prong of Cohen, but we perceive no change in the governing standard. The Court has described Cohen as requiring a “fully consummated decision” and “a complete, formal, and ... final” resolution of the disputed issue. Abney, 431 U.S. at 659, 97 S.Ct. 2034. It has allowed collateral order review where there was “no basis to suppose that the District Judge contemplated any reconsideration of his decision,” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12-13, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), and prohibited it where the relevant order was left “subject to revision.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). More recently, the Court has explained that the district court's ruling must be “the final word on the subject addressed.” Digital Equip. Corp., 511 U.S. at 868, 114 S.Ct. 1992. “Tentative” rulings can never satisfy the “conclusively determined” requirement. See, e.g., id. at 869 n. 2, 114 S.Ct. 1992; Coopers & Lybrand, 437 U.S. at 469 n. 11, 98 S.Ct. 2454; Cohen, 337 U.S. at 546, 69 S.Ct. 1221.

Consistent with this authority, we have long held that collateral order review requires “a final rather than a provisional disposition of an issue.” Rodgers v. U.S. Steel Corp., 508 F.2d 152, 159 (3d Cir.1975). An illustrative case is Metex Corp. v. ACS Industries, Inc., 748 F.2d 150 (3d Cir.1984). There, plaintiff Metex sued a competitor for unfair trade practices. In furtherance of that claim, it sought certain records from the Department of Justice under the Freedom of Information Act (FOIA). When the DOJ resisted, Metex joined it as a defendant in its unfair trade practices claim, then moved for summary judgment on the FOIA issue. The district court denied the motion. Metex immediately appealed. We dismissed for lack of appellate jurisdiction, because the district court did not treat its ruling on the summary judgment motion as final; rather, it indicated that it was prepared to reconsider the motion at a later time.” Id. at 153. We held that [b]ecause the district court explicitly left open renewed consideration of the FOIA claim, the order was not ‘conclusively determined’ within the meaning of Cohen. Id. That decision echoed our holding in Lusardi v. Xerox Corp., 747 F.2d 174 (3d Cir.1984). In that case, plaintiffs filed a purported class action against Xerox, alleging unlawful age discrimination. After a hearing, the district court conditionally certified the class. It ordered Xerox to provide plaintiffs with a list of all potential claimants, and plaintiffs to provide...

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