Fisher v. Halliburton

33 IER Cases 621

667 F.3d 602

Ingrid FISHER, Individually and as Successor in Interest to Decedent Steven Fisher; Kristen Fisher, Individually and as Successor in Interest to Decedent Steven Fisher; S. F., Jr., a Minor, Individually and as Successor in Interest to Decedent Steven Fisher by and through Next Friend Ingrid Fisher; K. F., a Minor Individually and as Successor 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; et al., Plaintiffs–Appellees,

v.HALLIBURTON, a Corporation; Kellogg Brown & Root, Incorporated, a Corporation and Wholly Owned Subsidiary of Halliburton and KBR Holdings Limited Liability Company; Service Employees International, Incorporated, a Foreign Corporation and Wholly Owned Subsidiary of Halliburton and Kellogg Brown & Root International Incorporated; Brown & Root Services, a Division of Kellogg Brown & Root, Incorporated, a Corporation; Kellogg Brown & Root Services, Incorporated, Defendants–Appellants.Reginald Cecil Lane, an individual, by and through Linda Marlene Lane, as the duly appointed Conservator/Guardian of Reginald Cecil Lane; et al., Plaintiffs,

v.Halliburton, a Corporation; et al., Defendants.Ingrid Fisher, Individually and as Successor in Interest to Decedent Steven Fisher; Kristen Fisher, Individually and as Successor in Interest to Decedent Steven Fisher; S. F., Jr., Individually and as Successor in Interest to Decedent Steven Fisher; K. F., Individually and as Successor in Interest to Decedent Steven Fisher; Marjorie Bell–Smith, Individually and as Successor in Interest to Decedent Steven Fisher; et al., Individually and as Successor in Interest to Decedent Steven Fisher, Plaintiffs–Appellees Cross–Appellants,

v.Halliburton, a Corporation; Kellogg Brown & Root, Inc., a Corporation; Service Employees International, Inc., a Corporation; Kellogg Brown & Root Services, Inc., a Corporation; Brown & Root Services Corp., a Corporation, Defendants–Appellants Cross–Appellees.Reginald Cecil Lane, an Individual, by and through Linda Marlene Lane, as the duly appointed Conservator/Guardian of Reginald Cecil Lane; et al., Plaintiffs,

v.Halliburton, a Corporation; et al., Defendants.

Nos. 10–20202

10–20371.

United States Court of Appeals, Fifth Circuit.

Jan. 12, 2012.

David Michael Gunn (argued), Joe W. Redden, Jr., Beck, Redden & Secrest, L.L.P., Thomas Scott Allen, Jr. (argued), Law Offices of T. Scott Allen, P.C., Tobias Anthony Cole, Midani, Hinkle & Cole, L.L.P., Sara J. Fendia, Kenneth Thomas Fibich, Joseph Carter Melugin, Fibich, Hampton & Leebron, L.L.P., Samuel A. Houston, Shepherd, Scott, Clawater & Houston, L.L.P., Houston, TX, Christina Anne Fountain, Ramon Rossi Lopez, Lopez McHugh, L.L.P., Newport Beach, CA, for Plaintiffs–Appellees.

Raymond B. Biagini, Lawrence Steven Ebner (argued), Herbert L. Fenster, David Kasanow, Megan Anne Kinsey–Smith, McKenna, Long & Aldridge, L.L.P., Washington, DC, Christie Lynne Cardon, Kevin Michael Clark, Robert Bruce Hurley, Craig Joseph Ledet, Robert E. Meadows, King & Spalding, L.L.P., Houston, TX, Reagan William Simpson, Yetter Coleman, L.L.P., Austin, TX, for Defendants–Appellants.

Charles Wylie Scarborough (argued), U.S. Dept. of Justice, Civ. Div., Appellate Staff, Washington, DC, for United States of America, Amicus Curiae.Frederick W. Claybrook, Jr., Crowell & Moring, L.L.P., Washington, DC, for National Defense Indus. Ass'n, Amicus Curiae.Appeals from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, OWEN and HAYNES, Circuit Judges.

OWEN, Circuit Judge:

This interlocutory appeal arises out of the deaths of Steven Fisher and Timothy Bell, who were civilian drivers in a United States military supply-truck convoy in Iraq when insurgents attacked in April 2004. State tort claims were brought by or on behalf of spouses and family members of the decedents (collectively Plaintiffs) against Halliburton, Kellogg Brown & Root, Inc., and various subsidiaries or affiliates (collectively KBR), who employed the decedents. In this appeal, KBR contends that the district court erred in denying KBR's motion to dismiss and motion for summary judgment in which it argued that the Defense Base Act (the DBA or Act)¹ provides Plaintiffs' exclusive remedy and preempts all state tort claims that have been asserted. The district court certified its order regarding the DBA for immediate appeal under 28 U.S.C. § 1292(b). KBR also seeks review of interlocutory orders denying motions to dismiss that had asserted that this case concerns a political question and is nonjusticiable and had asserted the government contractor defense and combatant activities exception. We conclude that the DBA preempts Plaintiffs' claims, and we therefore do not consider whether we have jurisdiction to entertain the alternative grounds on which KBR seeks dismissal.

I

In the district court, this case was considered with another case, Lane v. Halliburton, which arose out of injuries sustained by another KBR employee, Reginald Cecil Lane, who was attacked the same day in Iraq while driving a truck in a supply convoy. Lane was joined in his suit against KBR by his guardian and conservator and the representative of the estate of a family member. The district court's order ruling that the DBA did not apply was entered in both cases, and this interlocutory appeal originally included the Fisher as well as the Lane plaintiffs. The plaintiffs in Lane reached a settlement agreement with KBR while this appeal was pending, and the appeal has been dismissed as to all the Lane plaintiffs. The Fisher claims remain pending.

We have previously considered an appeal in this case, Lane v. Halliburton. ² We again recount the pertinent facts.

In December 2001, the United States Army awarded KBR a contract pursuant to its Logistics Civil Augmentation Program (LOGCAP). As we explained in the prior appeal before this court: “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).”³ Contracts under LOGCAP “allow the Army to ‘achieve the maximum combat potential ... by capitalizing on the civilian sector....’ Id. at 2–1(a).” ⁴ Under its contract with the Army, known as the LOGCAP III contract, and task orders issued subsequent to the contract, KBR was responsible for providing logistical support and transportation services to the Army as it conducted operations in Iraq.

Pursuant to its responsibilities under the contract, KBR and its employees conducted supply convoy missions in Iraq under the supervision of the Army. Both the LOGCAP III contract and the task orders that defined KBR's responsibilities in Iraq provided that the Army would maintain responsibility for the safety of KBR convoys by providing adequate force protection for the convoys and ensuring the security of the routes on which the convoys would travel. In fulfilling its duties under the contract, the Army determined where commodities were needed, when and from where a convoy would deploy, the route the convoy would travel, the necessary force protection, and whether a specific route was too dangerous to travel. Despite the Army's significant role in the planning and operation of KBR convoys, KBR retained the authority to halt convoy operations unilaterally due to safety concerns.

The events giving rise to this litigation occurred primarily on April 9, 2004, in Iraq. The record includes evidence that KBR was on notice that April 9 was a day that would present an increased risk of insurgent violence and that KBR employees were concerned about the levels of violence that their convoys were facing. For example, KBR security calendars noted April 9, 2004, marked the first anniversary of the United States' presence in Baghdad, and the weekend of April 9 through April 11 coincided with a Shia commemorative event. On April 7, a KBR security manager e-mailed KBR's theater project manager and expressed his concern that convoys could face serious security risks on April 9 and 10. On April 8, several KBR convoys were attacked by insurgents, and internal KBR e-mails suggest KBR employees were aware the security situation with respect to their convoys had deteriorated. Some of the e-mails expressed doubt the military could adequately protect KBR convoys under current conditions, and KBR management, on the evening of April 8, debated the merits of sending out convoys on April 9. KBR ultimately resolved to continue convoy operations.

The suit below focused on the drivers of fuel tankers in two separate supply convoys on April 9—the Hamill convoy and the Longstreet convoy. Both convoys were traveling between Camp Anaconda and Baghdad International Airport (BIAP) when they were attacked by Iraqi insurgents. Plaintiffs' convoys were not the only KBR convoys to suffer insurgent attacks that day. There is evidence in the record, for example, that, before the Hamill convoy had even departed Camp Anaconda on its mission to supply BIAP, other KBR convoys in the vicinity of the intersection of two supply routes—MSR Sword and MSR Tampa—were receiving small arms fire from insurgents. Internal KBR e-mails suggest that KBR executives who had authority to halt convoy operations were aware of these attacks before the Hamill convoy left Camp Anaconda.

The Hamill convoy ultimately proceeded from Camp Anaconda toward BIAP via MSR Sword. As the Hamill convoy was traveling down MSR Sword toward its intersection with MSR Tampa, insurgents attacked the convoy with improvised-explosive devices, rocket-propelled grenades, and machine-gun fire. The Longstreet convoy was en route from BIAP to Camp Anaconda on MSR Tampa when it, too, fell under attack by insurgents wielding rocket-propelled grenades, small arms, and rocks. The attacks killed seven KBR drivers and injured at least ten...