Martin v. Halliburton

• Decision Date: 23 March 2010
• Docket Number: No. 09-20441.,09-20441.
• Citation: 601 F.3d 381
• Parties: Kristen MARTIN; Donald Tolfree, deceased, Plaintiffs-Appellees, v. HALLIBURTON; KBR, Inc.; Kellogg Brown & Root, Inc.; Kellogg Brown & Root Services, Inc.; Service Employees International, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

601 F.3d 381

Kristen MARTIN; Donald Tolfree, deceased, Plaintiffs-Appellees, v. HALLIBURTON; KBR, Inc.; Kellogg Brown & Root, Inc.; Kellogg Brown & Root Services, Inc.; Service Employees International, Inc., Defendants-Appellants.

No. 09-20441.

United States Court of Appeals, Fifth Circuit.

March 23, 2010.

COPYRIGHT MATERIAL OMITTED

Guy L. Watts, II, Christopher V. Goodpastor (argued), Watts Guerra Craft, L.L.P., Austin, TX, for Plaintiffs-Appellees.

Margaret T. Brenner, Mark Anthony Font, Bracewell & Giuliani, L.L.P., Houston, TX, Raymond B. Biagini, Lisa Michaele Norrett, McKenna, Long & Aldridge, L.L.P., Washington, DC, Herbert L. Fenster (argued), McKenna, Long & Aldridge, L.L.P., Denver, CO, for Defendants-Appellants.

Before KING, JOLLY and STEWART, Circuit Judges.

KING, Circuit Judge:

Defendants-appellants, affiliated governmental contractors providing logistical support to the United States Army in Iraq, appeal the denial of their Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Plaintiffs-appellees move to dismiss the appeal for lack of subject matter jurisdiction. We lack subject matter jurisdiction and must dismiss the appeal.

I. BACKGROUND

A. Factual Background

This case reaches us still in its infancy, and the record is accordingly underdeveloped. The facts that follow are drawn primarily from the complaint below and from attachments to motions filed in the district court.

Defendants¹ are affiliated governmental contractors providing logistical support to the United States military in Iraq. Plaintiff-appellee Kristen Martin is the adult daughter of Donald Tolfree, a civilian employed by Defendants. Tolfree was recruited by Defendants in December 2006 to drive trucks in convoys in Iraq. Martin alleges that Tolfree relied on Defendants' assurances that he would be 100% safe and protected by the United States military during his employment in Iraq. Tolfree arrived in Iraq in January 2007, where he was assigned to Logistics Support Area (LSA) Anaconda. In February 2007, he was asked if he would volunteer to drive a "chase truck" in an upcoming convoy.² Tolfree agreed to do so.

Martin's complaint alleges that Defendants acted negligently in executing the convoy operation. According to Martin's complaint, there was no written policy regarding the use of chase trucks, and Tolfree—who had been onsite for less than one month—was not told of any unwritten policies. Tolfree believed that his duty was to follow the convoy from its departure point within LSA Anaconda to the base's north gate, a distance of about ten miles. He believed that he would be contacted by radio and instructed to turn around at the appropriate time. Tolfree's chase truck was equipped with a non-military radio, and a radio dead zone prevents non-military radio communications around the perimeter of LSA Anaconda. As a result, Tolfree followed the convoy past the north gate, at which point Defendants radioed for "the extras" to turn around. Tolfree did so, passing at least two vehicles at the rear of the convoy. The drivers of those vehicles confirmed with the convoy commander that the extra trucks were no longer to be part of the convoy. The convoy commander did not contact the sentry posted at the north gate about Tolfree's return.

Military protocol requires trucks such as the one Tolfree was driving to be accompanied by gun trucks during a return to camp. The sentry posted at the north gate of LSA Anaconda saw Tolfree's chase truck returning and, noting that none of Defendants' trucks was scheduled to enter the camp, applied protocol for dealing with unscheduled and unescorted vehicles attempting to enter LSA Anaconda. Tolfree died instantly when a gunner fired one hundred .50-caliber rounds into the chase truck.

Martin alleges that a representative of Defendants falsely informed her that Tolfree had been killed by an insurgent's roadside bomb rather than by friendly fire. Her complaint alleges that Defendants continued to misrepresent the circumstances of Tolfree's death as late as a year after the fact.

B. The Logistics Civil Augmentation Program

Defendants' involvement in convoy operations in Iraq occurs under the auspices of the Logistics Civil Augmentation Program (LOGCAP). In 1985, the United States Army issued Army Regulation 700-137, which initiated LOGCAP. Army Reg. 700-137, at 1-1 (Dec. 16, 1985). The LOGCAP regulations describe LOGCAP's purpose as "to preplan for the use of civilian contractors to perform selected services in wartime to augment Army forces. Utilization of civilian contractors in a theater of operation will release military units for other missions or fill shortfalls." Id. The LOGCAP regulations expressly state that "contractors will not be used to perform inherently governmental functions." Id. at 3-2(d)(8). The term "governmental function" is defined as "a function which is so intimately related to the public interest as to mandate performance by Government employees. These functions include those activities which require either the exercise of discretion in applying Government authority or the use of value judgements in making decisions for the Government." Id. at Glossary § I.

On December 14, 2001, under the authority of the LOGCAP Program, the Army awarded Contract No. DAAA09-02-D-0007 (the "LOGCAP III Contract") to Brown & Root Services, Inc., a division of Kellogg Brown & Root.³ The LOGCAP III Contract was designated a "rated order" contract, making its performance mandatory under the Defense Production Act of 1950 (DPA), 50 U.S.C. app. §§ 2061-2171. The willful failure to perform a rated order contract carries a criminal penalty. See id. §§ 2071(a) & 2073. Defendants aver that the logistics and transportation services in which Tolfree was engaged were performed pursuant to Task Order 139, issued by the Army in August 2006. Only the first two pages of the LOGCAP III Contract are in the record, and Task Order 139 is completely absent. Martin alleges (and Defendants admit in their answer) that there was a novation of the LOGCAP III Contract in 2003 that transferred contractual duties from Kellogg Brown & Root to Kellogg Brown & Root Services. The two pages from the LOGCAP III Contract that are in the record bear a date stamp of December 14, 2001, which precedes the novation by a minimum of one year.

C. Procedural History

Martin filed a diversity suit in district court on February 5, 2009, asserting state law tort claims against Defendants for their actions in recruiting Tolfree, executing the convoy operation, and misrepresenting the cause of his death.⁴ On April 3, 2009, Defendants moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, urging several distinct theories: (1) official immunity; (2) derivative sovereign immunity; (3) immunity under the DPA; and (4) preemption of state law under the combatant activities exception to the Federal Tort Claims Act (FTCA). Several exhibits were attached to their motion, including two Army regulations, an Army field manual, and two pages of the LOGCAP III Contract.⁵ The district court denied the motion without opinion or explanation on June 8, 2009.⁶ Defendants then filed an answer and appealed the district court's order. The record does not reflect that Defendants requested that the district court either explain its decision 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 court to dismiss the appeal as interlocutory; that motion was carried with the case. The district court ordered further proceedings stayed pending the outcome of this appeal.

II. DISCUSSION

Before we can proceed to the merits of this appeal, we must examine whether we have jurisdiction to do so. We have jurisdiction to determine our own jurisdiction. Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 169 (5th Cir. 2009) (citing Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc., 481 F.3d 265, 268 (5th Cir.2007)). As the appellants, Defendants bear the burden of establishing our appellate jurisdiction. Acoustic Sys., Inc. v. Wenger Corp., 207 F.3d 287, 289 (5th Cir.2000).

Our appellate jurisdiction is ordinarily limited to "final decisions of the district 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 nothing for the court to do but execute the judgment." Henry, 566 F.3d at 171 (alterations and internal quotation marks omitted) (quoting Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989)). In addition to our jurisdiction over appeals from final decisions, we have statutory jurisdiction over appeals from certain interlocutory orders and decrees under § 1292(a), but neither party urges the application of that provision. Prospective appellants who seek to appeal interlocutory orders that do not qualify under § 1292(a) are ordinarily limited to the certification procedure of § 1292(b); as noted above, that procedure was not followed here. Thus, our jurisdiction must exist, if at all, under § 1291.

Defendants urge that the collateral order doctrine recognized in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), supports jurisdiction.⁸ "The collateral order 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, Inc., 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). "The collateral order doctrine accommodates a `small class' of rulings, not concluding the litigation, but conclusively resolving `claims of right...