2010) case opinion from the District of Oregon U.S. Federal District Court In this case, the plaintiffs are suing the parent company of their employer; in Fisher , the plaintiffs sued their employer and other affiliated entities. To determine if an employee has multiple employers, the Fifth Circuit applies the "relative nature of the work test": Oilfield Safety , 625 F.2d at 1253 ; see also Fisher , 703 F. Supp. Marcus Raymond Spagnoletti, State Bar Information, Eric Jonathan Rhine, Spagnoletti Law Firm, Houston, TX, for Plaintiffs. Mar. Burn Pit Litig. 2004); United States ex rel. , 744 F.3d at 351. FED. "); Aiello , 751 F. Supp. (Lowes Aff. WebServices, Ltd., and Service Employees International, Inc. The present record does not make clear what work the plaintiffs did or what services they provided at the Al Asad base. 2014)). This conclusion, we add, was consistent with the conclusions of widespread, pre-Carter III circuit case law. The plaintiffs claims arise from the work they performed under their employer's contract with the military and involve actions that took place on a military base. 3729(a)(1). The plaintiffs ask the court to remand to state court; the defendant asks the court to dismiss the claims. The Fifth Circuit construes the statute in favor of remand and construes ambiguities against the removing party. Carter did not, however, contest the district court's decision to assess the first-to-file rule based on the facts as they existed at the time that the Carter Action was brought. WebDue to an expansion in the scope of the contract, KBR provided support for up to 187,900 troops across 80 sites, the company said. "Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement. " Iqbal , 556 U.S. at 678, 129 S.Ct. 1651(a)(4). 11-684-RGA, 2017 WL 63006, at *12 (D. Del. (Docket Entry No. Together, KBR employees are pushing industries and organizations forward, from our headquarters in Houston, Texas, to Earths orbit and beyond. 2d at 664. KBR holds all leaders and employees to the highest standards of business and personal integrity, abiding by the strictest ethical and legal standards. Because the record supports federal jurisdiction, remand is denied. With this understanding in mind, we reiterate the conclusion of our initial decision in this case. 2017). 902(2). 2d 639, 663 (S.D. KBR Technical KBR Technical is a payroll company that provides payroll services to the majority of KBR-related company employees in the United States. Saleh v. Titan Corp. , 580 F.3d 1, 7 (D.C. Cir. no. Net The Court then remanded this case for further proceedings. Carter v. Halliburton Co. (Carter V), 144 F. Supp. Harris , 724 F.3d at 481. (Id. While Federal Tort Claims Act exceptions do not expressly apply to private actors, 28 U.S.C. at 1978. Presumably, the Supreme Court was aware of this textual detail in making the pronouncements that it did in Carter III. Harris , 724 F.3d at 479 ; see also Burn Pit Litig. 2010), rev'd on other grounds , 667 F.3d 602 (5th Cir. 2017) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. (Id. at *812 & n.11. UNITED STATES BENJAMIN CARTER v. HALLIBURTON CO KELLOGG BROWN ROOT SERVICES INC SERVICE EMPLOYEES INTERNATIONAL INC KBR INC. Claimant began working for employer in Iraq as a heavy truck driver in January 2005 and later became a convoy commander. Make your practice more effective and efficient with Casetexts legal research suite. The combatant-activities exception is part of the Federal Tort Claims Act, which does not "provide immunity to nongovernmental actors." The Defense Base Act is "liberally construed," Voris v. Eikel , 346 U.S. 328, 333, 74 S.Ct. Defendant Service Employees International, Inc. ("SEI"), is a corporation organized under the laws of the Cayman Islands with its principal place of business in Dubai, United Arab Emirates. 2014) ; Harris v. Kellogg Brown & Root Servs., Inc. , 724 F.3d 458, 479 (3d Cir. See United States ex rel. The D.C. Courts determine whether the U.S. military has command authority over a contractor by examining the contractor's discretion in performing its duties. The KBR is a signatory to the LOGCAP IV contract, (Docket Entry No. The plaintiffs allege that KBR negligently failed to "evacuate contractors" or "provide security measures," such as "communication of safety information and status updates, a means of evacuating Iraq when conditions became unreasonably dangerous, and protection from violent attacks." The court will allow limited discovery on KBR's Defense Base Act defense. 2013) ; Aiello v. Kellogg, Brown & Root Servs., Inc. , 751 F. Supp. at 877. 2000). The plaintiffs sued KBR in Texas state court for negligence and gross negligence, alleging that KBR was "aware of the heightened risk of a strike in the face of escalating regional violence," but "left [the] Plaintiffs and the other employees of Service Employees International at the base, in direct risk of substantial harm." A court reviewing a motion to dismiss under Rule 12(b)(6) may consider "(1) the facts set forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial notice may be taken under Federal Rule of Evidence 201." 1-5 at 4), and owns Service Employees International. Stay up-to-date with how the law affects your life. 483 (1951) ). Unfortunately, KBR decided to ignore the unambiguous threats of retaliation levied by Iran following the death of General Qassem Soleimani. Circuit approaches and instead following, as the more persuasive, the Third and Fourth Circuit reasoning. Carter then petitioned for certiorari, and the Supreme Court granted that petition. In November 2011, the district court ruled that the Maryland Action was related to the later-filed Carter Action, and that therefore the latter action was precluded by the first-to-file rule. United States v. Dozier, 848 F.3d 180, 188 (4th Cir. See Latiolais , 951 F.3d at 296 ("[The government contractor] performed the refurbishment and, allegedly, the installation of asbestos pursuant to directions of the U.S. Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The plaintiffs argue that this is enough to distinguish Fisher . $ 83. at 183. Welcome to the KBR First Quarter 2023 Earnings Conference Call. Following dismissal of all earlier-filed, related actions, Relator sought leave to amend his complaint to avoid preclusion under the first-to-file bar. See United States ex rel. For a discussion of unsuccessful, pre-Carter Action suits brought by Carter against KBR, see United States ex rel. Carter asserts that our prior holding that a first-to-file analysis turns on the set of facts existing at the time an FCA action was commenced has been undermined by the Supreme Court's intervening decision in this case. See United States ex rel. The plaintiffs allege that KBR supervised the Service Employees International employees working under the LOGCAP IV contract. at 5.29, 5.34). The email address cannot be subscribed. Heath v. AT&T, Inc., 791 F.3d 112, 11921 (D.C. Cir. For 100 years, KBR has been part of some of the worlds most influential achievements. 31, 2017) (collecting cases). Oops! The complaint alleges that in January 2020, Iran launched ballistic missiles at the United States Army forward operating base in Al Asad, Iraq. Applying this logic, and finding no statute of limitations issue, we ruled that the district court's dismissal of the Carter Action should have been without prejudice instead of with prejudice. $ 83. "Conversely, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court." But we all share one goal: to improve the world responsibly and safely. Grow. , 744 F.3d at 351 ; and supplied weapons to vessels fighting in a combat area, Koohi , 976 F.2d at 133637. The court reiterated its view that the date that an action is brought is dispositive in a first-to-file analysis, and concluded that the fact that the Maryland and Texas Actions were both still pending on the date the complaint in the Carter Action was filed rendered the Carter Action precluded by the first-to-file rule. Other courts have rejected this test as excessively narrow because it limits the combatant-activities exception to "claims stemming directly from the use of force," excluding indirect wartime harms. Each step is examined below. He, too, did not question this Court's decision to conduct its first-to-file analysis based on the facts in existence at the time that the Carter Action was brought.4. 2015), an intervening First Circuit decision holding that an FCA relator could cure a first-to-file defect by supplementing his or her complaintpursuant to Federal Rule of Civil Procedure 15(d)with an allegation that the earlier-filed, related actions that gave rise to the first-to-file defect had been dismissed. (quoting Twombly , 550 U.S. at 556, 127 S.Ct. A court's lack of discretion when it comes to sanctioning first-to-file violations was underscored in a recent Supreme Court decision. I write separately to emphasize the narrow scope of that conclusion. Despite Carter's objections, the district court on remand invoked the first-to-file rule and dismissed the Carter Action without prejudice. Carter v. Halliburton Co. (Carter IV), 612 F. App'x 180 (4th Cir. Beauchamp v. Academi Training Ctr., 816 F.3d 37, 39 (4th Cir. We cannot support Carter's reading. Courts have offered three main views. The Act does not define "employer." In 2006, the company separated from Halliburton and completed a successful initial public offering on the New York Stock Exchange. The Third, Fourth, and D.C. , 744 F.3d at 348 ; Aiello , 751 F. Supp. The declaration, however, does not make clear whether the plaintiffs and Service Employees International performed the same functions as KBR. Marcus Raymond Spagnoletti, State Bar Information, Eric Jonathan Rhine, Spagnoletti Law Firm, Houston, TX, for Plaintiffs. Fisher , 703 F. Supp. KBR did not clarify the relationship among KBR, Service Employees International, and the LOGCAP IV contract. See Carson, 851 F.3d at 30203 (A belated relator who merely adds details to a previously exposed fraud does not help reduce fraud or return funds to the federal fisc, because once the government knows the essential facts of a fraudulent scheme, it has enough information to discover related frauds. (quoting United States ex rel. To determine whether the combatant-activities exception preempts a state tort claim, courts apply the "command-authority" test. On remand, this Court addressed an argument pressed by Carter that he could rely on the principle of equitable tolling to render the Carter Action timely. The Supreme Court held that, in accordance with the ordinary meaning of the term pending, a qui tam suit under the FCA ceases to be pending once it is dismissed. Carter III, 135 S. Ct. at 197879. Gadbois only addressed a situation where the relator sought to revise an FCA complaint with information pertaining to the related action that gave rise to the first-to-file defect. Such notice is already principally provided by first-filed actions. Tex. R. CIV. My name is [indiscernible], I will be your moderator for today's call. Service Employees International/KBR Technical Services Inc. E-File Follow Case Number: 16-CA-024700 Date Filed: 12/09/2005 Status: Closed Location: Fisher , 667 F.3d at 610 (citing 42 U.S.C. Workers Comp. Learn more about FindLaws newsletters, including our terms of use and privacy policy. Because, on the current record, the court cannot reliably determine whether either defense is preemptive as KBR argues, the motion to dismiss is also denied. Owens v. First Kuwaiti Gen. Trading & Contracting Co., 612 F.3d 724, 728 (4th Cir. Ins. See, e.g., Walburn v. Lockheed Martin Corp., 431 F.3d 966, 972 n.5 (6th Cir. In a 29-page ruling, the federal district court in Oregon considered the motion by KBR and co-defendants Overseas Administration Services, Ltd. and Service Employees International, Inc. to dismiss the suit for lack of subject-matter jurisdiction and rejected it. The first-to-file rule's statutory text, as explained above, plainly bars the bringing of actions while related actions are pending, and affords courts no flexibility to accommodate an improperly-filed action when its earlier-filed counterpart ceases to be pending. Id. Appellees Halliburton Company; Kellogg Brown & Root Services, Inc.; KBR, Inc.; and Service Employees International, Inc. (collectively, KBR), are a group of defense One exception is for "[a]ny claim arising out of combatant activities of the military or naval forces, or the Coast Guard, during time of war." The purpose behind the combatant-activities exceptionpreventing courts from second-guessing military decisionsdoes not require preempting torts that stem from purely private actions. Franks v. Ross, 313 F.3d 184, 198 n.15 (4th Cir. Thus, assuming for the sake of argument that Gadbois was correctly decided,8 it provides Carter no support. See McBurney v. Young, 667 F.3d 454, 465 (4th Cir. KBR's maintenance work in Iraq has been criticized after reports of soldiers electrocuted from faulty wiring. Specifically, KBR has been charged by the Army for improper installation of electrical units in bathrooms throughout U.S. bases. 2d 698, 709 (S.D.N.Y. Rule 8 "does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." 1991). Discovery on these defenses will close on August 27, 2021. Do not close your browser or leave the NLRB Without more, the court cannot conclude, as a Accordingly, the Court proceeded to explore the potential application of the first-to-file rule. , 744 F.3d at 347 (applying the Saleh test); Harris , 724 F.3d at 479 (same). The plaintiffs motion to remand, (Docket Entry No. Med. The plaintiffs allege that KBR was not a party to the LOGCAP IV contract. Courts have had little trouble concluding that the federal government has a unique federal interest in "the management of wars." at 1979. KBR US48242W1062 KBR, INC. (KBR) Add to my list Report Summary Quotes Charts Ratings Company Financials Consensus Revisions Funds Transcript : KBR, Inc., Q1 2023 Earnings Call, May 01, 2023 05/01/2023 | 08:30am EDT Good morning, ladies and gentlemen. An employer under the Defense Base Act is "someone whose employees are covered by the [Act]." KBR owns Service Employees International. , 744 F.3d at 351 ("We agree with the Johnson court's reasoning and adopt its test here."). The Fifth Circuit has held that this definition has four elements: "[t]here must be (1) be a willful act; (2) by a third person; (3) directed against the employee because of his employment; (4) that causes the employee's injury." (Id. Inclusive Cmtys. It is also unclear how much discretion KBR and Service Employees International had as to whether, when, and how to evacuate contractors working under the LOGCAP IV contract. Carter first relies on the Supreme Court's statement that an earlier suit bars a later suit while the earlier suit remains undecided but ceases to bar that suit once it is dismissed. Carter III, 135 S. Ct. at 1978. KBR submitted a declaration by Michael Flanagan, the Vice President of Government Solutions at KBR, stating that the U.S. Army had "awarded" the LOGCAP IV contract to KBR. Id. The majority opinion further concludes that the district court did not abuse its discretion in denying Relator leave to amend. 2d at 710 ; Saleh , 580 F.3d at 7. Facts that may arise after the commencement of a relator's action, such as the dismissals of earlier-filed, related actions pending at the time the relator brought his or her action, do not factor into this analysis. Id. The Fifth Circuit has held that, under the Longshore and Harbor Workers Compensation Act, an employee can have multiple "employers," each of which is entitled to immunity. At the time the Carter Action was brought, two allegedly related actions were already pending: United States ex rel. 3729(a)(1). 7. Aiello , 751 F. Supp. (Docket Entry No. Section 1442(a) permits "any officer of the United States or person acting under [him or her]," 28 U.S.C. Congress could certainly have enacted a revival mechanism in the first-to-file rule statute notwithstanding repose and staleness concerns, but it has not done so, and we are not at liberty to create one. As such, we concluded that the Carter Action must be dismissed under the first-to-file rule, because the Maryland and Texas Actions were pending at the time the related Carter Action was brought. In Fisher , the Fifth Circuit addressed similar claims. United Bus. Revenue of $1.7 billion, up 18% on an ex-OAW 1 year-over-year-basis. Burn Pit Litig. civ. Carter argues that even if the dismissals of the Maryland and Texas Actions did not automatically cure the Carter Action's first-to-file defect, his subsequent, Rule 15(a)-based proposed amendment to his Carter Action complaint would have done so. Army."). 1:11-cv-602, 2011 WL 6178878, at *8 (E.D. Web) ) ) ) 2:09-cv-1241 ) ) ) ) memorandum opinion and order of court pending before the court are the motion of kbr, inc., overseas administration services, ltd., and service employees international, inc. to dismiss amended complaint for lack of personal jurisdiction (document no. Carter appealed the dismissal of the Carter Action to this Court. The Court held that the first-to-file rule does not keep later actions out of court in perpetuity, id. (Id. Region 16, Fort Worth, Texas. Carter, in effect, reads the Court's statement to mean that an earlier suit bars the continuation of a later suit while the earlier suit remains undecided but ceases to bar the continuation of that suit once it is dismissed. This reading would empower courts conducting a first-to-file analysis to take into account the dismissals of an action giving rise to a relator's first-to-file problems. 1441(a) ). The D.C. 2d at 577 ("[T]he actions at issue were taken under the direct and detailed control of federal officers because [the contractor's] maintenance and power generation services at [a military base] were performed [under a contract] with the U.S. The Ninth Circuit suggests that state tort law conflicts with the military regulation of wartime only when claims are brought by "those against whom force is directed as a result of authorized military action." Harris , 724 F.3d at 480. WebDue to an expansion in the scope of the contract, KBR provided support for up to 187,900 troops across 80 sites, the company said. We disagree. See 31 U.S.C. United States ex rel. 15), is denied. Courts apply a three-step test, derived from Boyle v. United Technologies Corp. , 487 U.S. 500, 507, 108 S.Ct. 2009). III purposes." at 883. 12-1497), 2013 WL 3225969. Bell Atl. , 744 F.3d at 348. 1651(c) ); see also Flying Tiger Lines, Inc. v. Landy , 370 F.2d 46, 52 (9th Cir. 2017) ). , 744 F.3d at 348 ("We find the Third Circuit's analysis persuasive and adopt its formulation of the interest at play here."). Your download is being prepared. 2010); see also Goldenberg v. Murphy, 108 U.S. 162, 163 (1883) (A suit is brought when in law it is commenced.); Harris v. Garner, 216 F.3d 970, 974 (11th Cir. Carter v. Halliburton Co. (the Carter Action), No. 8:07-cv-1487 (D. Md. Finally, KBR meets the fourth prong, showing that the plaintiffs claims are "alternatively connected or associated" with "acts under color of federal office." We hasten to add that although our holding may reduce the number of duplicative actions that can survive the FCA's limitations, this reduction should have no material effect on the Act's objective of ensuring that the government is put on notice of fraud. "To determine whether jurisdiction is present for removal," the court considers "the claims in the state court petition as they existed at the time of removal." Satellite, Ground Systems & Space Communications, Scientific Research & Laboratory Services, Earth, Environment & Space Science Monitoring, Noise, Vibration & Fluid Dynamics Engineering, Floating Production, Storage & Offloading (FPSO) Facilities, Commercial Cloud & Mission Service Platform, Artificial Intelligence & Machine Learning. This arrangement, Carter contends, conflicts with the Supreme Court's apparent policy preference for interpretations of the FCA that facilitate government recoveries. We may affirm on any ground apparent from the record before us. Va. filed June 2, 2011). 3730(b)(5), and therefore violated the first-to-file rule. 1-1 at 5.39). Having concluded that the above-described decision was correct, we cannot agree with Carter's argument. To define "employer" under the Act, courts have turned to the Longshore and Harbor Workers Compensation Act's definition: "an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States." However, the Maryland Action was dismissed in October 2011, and the Texas Action was dismissed in March 2012. Revenue of $1.7 billion, up 18% on an ex-OAW 1 year-over-year-basis. Circuits have adopted this test, breaking it into two prongs: (1) "whether the contractor is integrated into the military's combatant activities" and (2) "whether the contractor's actions were the result of the military's retention of command authority." This Court reviews a dismissal for lack of subject matter jurisdiction and questions of statutory interpretation de novo. Carson, 851 F.3d at 302. The FCA's liability scheme is enforced through civil actions filed by the government, 31 U.S.C. We disagree. at 197578. At the same time, we must adhere to the statutory provisions and limitations that Congress put into place in pursuit of that goal. 1. 2510. The court added that all of the Carter Action's claims would fall outside the limitations period if Carter were to refile his action. , 744 F.3d at 348. Int'l , 986 F.2d 1103, 1104 (7th Cir. filed June 5, 2007) (the Maryland Action), and a sealed action filed in Texas in 2007 (the Texas Action). The False Claims Act's first-to-file bar provides that [w]hen a person brings an action under [the False Claims Act], no person other than the Government may intervene or bring a related action based on the facts underlying the pending action. 31 U.S.C. v. ASARCO LLC, 135 S. Ct. 2158, 2169 (2015) (internal quotation marks omitted). We follow this text today, and decline to manufacture such flexibility, even if it may raise statute of limitations problems for certain FCA relators. (citing McGee v. Arkel Int'l, LLC , 716 F.Supp.2d 572, 577 (S.D. See Carter III, 135 S. Ct. at 1979 (The False Claims Act's qui tam provisions present many interpretive challenges, and it is beyond our ability in this case to make them operate together smoothly like a finely tuned machine.). , 744 F.3d at 348 ; Aiello , 751 F. Supp. In ordinary parlance, one bring[s] an action by institut[ing] legal proceedings. Bring an Action, Black's Law Dictionary 231 (10th ed. Halliburton Company is a publicly traded corporation and has no parent company. 1966) ("[T]he coverage provisions of the Defense Base Act clearly evidence the intent that the act shall afford the sole remedy for injuries or death suffered by employees in the course of employments which fall within its scope."). at 5.38, 5.39). WebKBR was created in 1998 when M.W. Under that rule, [w]hen a person brings an action under [the FCA], no person other than the Government may intervene or bring a related action based on the facts underlying the pending action. 31 U.S.C. Rigsby, 137 S. Ct. 436, 440 (2016); 31 U.S.C. at 21 n.8a question that has divided district courts in this circuit and around the country, see United States ex rel. Harm in these scenarios might be the product of U.S. military decisions. Welcome to the KBR First Quarter 2023 Earnings Conference Call. WebDaily Duties at Service Employee International,Inc. 1993) ("The Defense Base Act generally entitles employees at overseas military bases to benefits of the Longshore and Harbor Workers Compensation Act[.]"). Programs , 461 U.S. 624, 636, 103 S.Ct. SEII and KBR were affiliated companies that were bothsubsidiariesofHalliburton,Inc. 2510, 101 L.Ed.2d 442 (1988), to determine whether a Federal Tort Claims Act exception preempts state law. 1955 ). Fisher v. Halliburton , 703 F. Supp. Co., 560 F.3d 371, 378 (5th Cir 2009))). 1 5 at 4- 9). 1442. 2012) ; see also 42 U.S.C. Carter III, 135 S. Ct. at 1979 (asking rhetorically, Why would Congress want the abandonment of an earlier suit to bar a later potentially successful suit that might result in a large recovery for the Government?). Instead, we read the above-described statement as simply providing that an earlier suit bars the bringing of a later suit while the earlier suit remains undecided but ceases to bar the bringing of that suit once it is dismissed. When read in this manner, this Court's holding regarding the temporal dynamics of the first-to-file rule is left undisturbed. One plaintiff, Witherspoon, submitted a Defense Base Act Claim for Compensation stating that she was a "Senior Security Officer." The Carter Action was not Carter's first attempt to sue KBR under the FCA. The plaintiffs do not describe the type of work they performed at the Al Asad base. at 50712, 108 S.Ct. Under the employment agreement, Rogers agreed to submit any claims to arbitration in accordance with the Halliburton Dispute Resolution Program
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