The plaintiffs allege that KBR was not a party to the LOGCAP IV contract. Feb. 8, 1999). 2510. Our reading respects the statutory text underlying the first-to-file rule. 1998) ([T]he phrase bring a civil action means to initiate a suit.). BENJAMIN CARTER, Plaintiff - Appellant, v. HALLIBURTON CO.; KELLOGG BROWN & ROOT SERVICES, INC.; SERVICE EMPLOYEES INTERNATIONAL INC.; KBR, INC., Defendants - Appellees. The purpose behind the combatant-activities exceptionpreventing courts from second-guessing military decisionsdoes not require preempting torts that stem from purely private actions. Owens v. First Kuwaiti Gen. Trading & Contracting Co., 612 F.3d 724, 728 (4th Cir. KBR has also been awarded 15 Logistics Civil Augmentation Program ( LOGCAP) task orders worth more than $216 million for work under Operation Enduring Freedom, the military name for operations in Afghanistan. These include establishing base camps at Kandahar and Bagram Air Base and training foreign troops from the Republic of Georgia. The combatant-activities exception "preempt[s] state or foreign regulation of federal wartime conduct." Total preemption might, for example, preclude claims based on "contractors contractual violations," even though "the conduct underlying these violations is [independent] of the military's battlefield conduct and decisions." Fisher v. Halliburton , 703 F. Supp. La. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. P. 12(b)(6). 3-1 at 1 n.1). 1955 ). at 1978. A court's lack of discretion when it comes to sanctioning first-to-file violations was underscored in a recent Supreme Court decision. The Defense Base Act is designed to "save the previous heavy expense of providing its contractors with insurance of such employees on the basis of tort liability and full accident insurance." The court added that, in any event, it found Gadbois unpersuasive. Co. , 920 F.3d 890, 900 (5th Cir. UNITED STATES ex rel. WebKBR holds all leaders and employees to the highest standards of business and personal integrity, abiding by the strictest ethical and legal standards. The plaintiffs do not allege that Iran attacked them out of "personal animosity" or for "purely personal reasons." Financial Highlights for the Quarter Ended March 31, 2023. The Supreme Court granted certiorari, and then affirmed in part and reversed in part this Court's decision. 1-1 at 5.39). (Docket Entry No. In his complaint, Carter alleged that KBR had violated the FCA by fraudulently billing the government in connection with its water purification services.2. The court will hear oral argument on the motion on October 27, 2021, at 10:00 a.m ., by Zoom. 8:07-cv-1487 (D. Md. 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. Courts apply a three-step test, derived from Boyle v. United Technologies Corp. , 487 U.S. 500, 507, 108 S.Ct. The Ninth Circuit also seemed to walk back its statement by suggesting that the combatant-activities exception would apply to plaintiffs who were not harmed by the direct use of force, such as "those who supply ammunition to fighting vessels in a combat area" and "those who supply a vessel's weapons." Co. , 149 F.3d 387, 398 (5th Cir. See Carter II, 710 F.3d at 183. Region Assigned: 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 plaintiffs allege that they were working for a military contractor at an overseas military base and were injured when a foreign country attacked the base with missiles. 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. Click here to learn how to enable. They sustained significant injuries. See Heavin v. Mobil Oil Expl. See United States ex rel. Koohi , 976 F.2d at 1337. Carter urges that the Supreme Court's decision to describe one of Carter's claims as live was a manner of signaling that that claim is unaffected by the first-to-file rule. 5. The insurgents attacked the plaintiffs willfully; the insurgents were third persons; the attacks were directed against the plaintiffs because of their employment as government contractors "driving trucks in support of the American coalition's rebuilding and security efforts in Iraq"; and the attack was the "direct cause" of the plaintiffs injuries. On remand, Carter objected to the applicability of the first-to-file rule. 3730(b)(1). We acknowledged, however, that the district court's judgment was not entirely error-free, because dismissal with prejudice of the one claim Carter brought within the limitations period was not called for under the first-to-file rule. 1955 ). 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. We cannot support Carter's reading. 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." 2012) ("We liberally construe this term."). 11-00685 ack-bmk order denying defendants motion to dismiss and transferring the case to the united states district court for the southern district of texas, houston division for the following reasons, the court: (1) denies The court authorizes limited discovery on KBR's Defense Base Act and combatant-activities defenses. At KBR, every action we take as a company is aligned with our mission, vision and values, which provides the framework for who we are and how we operate. Kevin CLOYD, et al., Plaintiffs, v. KBR, INC., Defendant. See 31 U.S.C. 959, 103 L.Ed.2d 99 (1989). no. "); Aiello , 751 F. Supp. The D.C. 1651(a)(4). 2010), rev'd on other grounds , 667 F.3d 602 (5th Cir. The plaintiffs claims are associated with acts taken under color of federal office. Carter (Carter III), 135 S. Ct. 1970 (2015) (No. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. II. Courts determine whether the U.S. military has command authority over a contractor by examining the contractor's discretion in performing its duties. Harris , 724 F.3d at 480. Grow. Army."). If an employee's injury is covered by the Act, the employee generally cannot pursue a tort claim against his employer for the same injury. WebBrown & Root provides engineering consulting services, including project management, operations and maintenance including: Industrial Small-Cap Construction; Installation; Maintenance; Repair; Turnaround services. Harris , 724 F.3d at 479 ; see also Burn Pit Litig. 1-5 at 4), and owns Service Employees International. (quoting Twombly , 550 U.S. at 556, 127 S.Ct. The subject matter underlying this case involves Appellees'Halliburton Company; KBR, Inc.; Kellogg Brown & Root Services, Inc.; and Service Employees International, Inc. (collectively KBR)alleged fraudulent billing of the United States for services provided to the military forces serving in Iraq. First, courts identify the "uniquely federal interests" behind the exception. The Federal Tort Claims Act waives sovereign immunity for certain tort claims against the federal government, but it contains several exceptions to that waiver. We have jurisdiction over this appeal pursuant to 28 U.S.C. 3. 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. WebOther than its ultimate parent (KBR, Inc.), Service Employees International, Inc. does not have any publicly traded affiliates. 2002) (citing 28 U.S.C. If the contractor has significant discretion in the way it performs its duties, the military does not retain command authority. 1948) ; Burn Pit Litig. 1657, 68 L.Ed.2d 58 (1981) ; Jefferson County v. Acker , 527 U.S. 423, 431, 119 S.Ct. The declaration, however, does not make clear whether the plaintiffs and Service Employees International performed the same functions as KBR. The Supreme Court in Carter III did not reject, or even comment on, this Court's holding that a court must look at the facts as they existed when the claim was brought to determine whether an action is barred by the first-to-file bar. Carter II, 710 F.3d at 183. We clarified, however, that once a case is no longer pending the first-to-file bar does not stop a relator from filing a related case. Id. $ 16. 1441(a) ). 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. Id. at 5.29, 5.34). WebSERVICE EMPLOYEES INTERNATIONAL INC.; KBR, INC., Respondents. ). Make your practice more effective and efficient with Casetexts legal research suite. Unfortunately, KBR decided to ignore the unambiguous threats of retaliation levied by Iran following the death of General Qassem Soleimani. 3730(b)(2). You will be notified when it is ready. 2014), which held that even when [a] District Court lacks jurisdiction over a claim at the time of its original filing, a supplemental complaint may cure the defect by alleging the subsequent fact which eliminates the jurisdictional bar. Rather than resolving those questions, the majority opinion simply holds that a proposed amendment or supplement to a complaint cannot cure a first-to-file defect when the amendment or supplement does not reference the dismissal of publicly disclosed, earlier-filed related actions. Welcome to KBR.com. 88, 98 L.Ed. Id. Latiolais v. Huntington Ingalls, Inc. , 951 F.3d 286, 29091 (5th Cir. Circuit approaches and instead following, as the more persuasive, the Third and Fourth Circuit reasoning. While Federal Tort Claims Act exceptions do not expressly apply to private actors, 28 U.S.C. Thus, we reversed the district court's holding that the claims in the Carter Action were time-barred. Beauchamp v. Academi Training Ctr., 816 F.3d 37, 39 (4th Cir. I received a letter listing my income Ask an Expert Tax Questions I work in Iraq for KBR and at 181. 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. The Supreme Court acknowledged, however, that Carter had raised additional arguments that, if successful, could render at least one claim of his timely on remand. An FCA violator may be held responsible for treble damages in addition to civil penalties. This Court fully supports the FCA's noble goal of protecting the government's funds and property against fraud. Ass'n Cas. 3-1 at 1, 25-1, 25-2); KBR has an insurance policy, as required under the Act, (Docket Entry No. The FCA contains a provision, known as the first-to-file rule, which bars these private individuals, known as relators, from bringing actions under the FCA while a related action is pending. The main Here, the court has few, if any, facts about the relationship between the plaintiffs and KBR. The Supreme Court, moreover, expressed agreement with this Court's rejection of dismissal with prejudice in this case, and it did not qualify this expression of agreement with the significant caveat that it disagreed with this Court's instruction of dismissal without prejudice. (Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. Halliburton Company is a publicly traded corporation and has no parent company. The first-to-file rule provides that [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. The basis for the above-described holding was the relevant statutory text, which imposes a restriction on the bring[ing] of an action. 31 U.S.C. The Federal Officer Removal Statute states: "Federal officers may remove cases to federal court that ordinary federal question removal would not reach." Project, Inc. v. Lincoln Prop. (Id. See Carter III, 135 S. Ct. 1970. The plaintiffs motion to remand, (Docket Entry No. , 744 F.3d at 351 ("We agree with the Johnson court's reasoning and adopt its test here."). The threshold issues are whether the claims belong in federal court and whether there are viable claims at all. 2014). 10). Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1188 (9th Cir. A relator who brings a meritorious qui tam action receives attorney's fees, court costs, and a percentage of recovered proceeds. Revenue of $1.7 billion, up 18% on an ex-OAW 1 year-over-year-basis. 1955, 167 L.Ed.2d 929 (2007). But see United States v. Medco Health Solutions, Inc., No. 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.). From January to April 2005, Appellant Benjamin Carter worked for KBR at a water purification unit employed to provide clean water to American troops serving in Iraq. Claimant began working for employer in Iraq as a heavy truck driver in January 2005 and later became a convoy commander. The district court dismissed relator Benjamin Carter's (Relator) False Claims Act complaint against Defendant Halliburton Co., and several of its subsidiaries, on grounds that at least two related actions were pending at the time Relator filed his original complaint. Finally, we note that KBR is not without policy arguments of its own. 1955 ). The reasons for these rulings are set out below. Put another way, [o]ne brings' an action by commencing suit. United States ex rel. "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." "); Vance v. CHF Int'l , 914 F. Supp. No publicly held corporation owns 10% or more of Halliburton Companys stock. The only court to apply this test in a Defense Base Act case did so on a summary judgment motion. Rule 12(b)(6) allows dismissal if a plaintiff fails "to state a claim upon which relief can be granted." at 180. 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." 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. Please try again. The Fifth Circuit held that the plaintiffs claims were barred under the Defense Base Act. WebLaw360, New York (October 31, 2011, 9:24 PM EDT) -- A former Service Employees International Inc. operations specialist on Friday sued Service Employees and defense Three employees of a contractor working on an American military base in Iraq have sued the contractor's parent company, alleging that it is responsible for the injuries they received when Iranian ballistic missiles struck the base in January 2020. "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." website until it is completed. at *812 & n.11. Programs , 461 U.S. 624, 636, 103 S.Ct. 3730(d). 2d at 710. (Docket Entry No. Contact us. Saleh , 580 F.3d at 9 ; see also Burn Pit Litig. This reasoning by the Supreme Court confirms that the only appropriate response for a first-to-file rule violation is dismissal. Id. 2015); 31 U.S.C. , 744 F.3d 326, 348 (4th Cir. See United States ex rel. (Lowes Aff. Oops! The court added that all of the Carter Action's claims would fall outside the limitations period if Carter were to refile his action. 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. Courts also agree that, "when state tort law touches the military's battlefield conduct and decisions, it inevitably conflicts with the combatant activity exception's goal of eliminating such regulation of the military during wartime." The attack was allegedly in retaliation for the killing of General Qassem Soleimani. See Carter II, 710 F.3d at 183. Carter v. Halliburton Co. (Carter II), 710 F.3d 171, 17476 (4th Cir. Branch , 924 F.3d 762, 765 (5th Cir. 3), is denied. 2014)). My name is [indiscernible], I will be your moderator for today's call. 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. Revenue of $1.7 billion, up 18% on an ex-OAW 1 year-over-year-basis. Branch Consultants v. Allstate Ins. Kevin Cloyd, Nickalandra Witherspoon, and Lucille Andrade were employed by Service Employees International and working at the Al Asad base when the attack occurred. Kellogg has no direct employees. WebService Employees International Inc. (SEII) did a fantastic job in moving people around in Iraq, where I was contracted to work. See Gabelli v. SEC, 133 S. Ct. 1216, 1221 (2013) (describing the interests of defendants that are advanced by statutes of limitations). The Fifth Circuit construes the statute in favor of remand and construes ambiguities against the removing party. Following dismissal of all earlier-filed, related actions, Relator sought leave to amend his complaint to avoid preclusion under the first-to-file bar. Because Carter commenced the Carter Action while the Maryland and Texas Actions were still pending, he clearly br[ought] an action while factually related litigation remained pending, 31 U.S.C. 1-5 at 6). The result of this welcoming mindset informs everything we do and accomplish, and has earned the respect of the worlds most renowned institutions. 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." The "); Ruppel , 701 F.3d at 1181 (" Acting under covers situations, like this one, where the federal government uses a private corporation to achieve an end it would have otherwise used its own agents to complete."). Good morning, ladies and gentlemen. See Carter II, 710 F.3d at 183. (Id. Schmit v. ITT F. Elec. at 4). United Bus. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION. We held that Carter did not properly preserve the issue of equitable tolling, and so we summarily affirmed the district court's refusal to equitably toll the statute of limitations. Id. 2017) ). This conclusion, we add, was consistent with the conclusions of widespread, pre-Carter III circuit case law. The district court rejected this argument, and consequently denied Carter's proposed amendment. In contrast, we cannot presume that the Supreme Court intended, with one ambiguous statement, to overrule this Court's conclusion as to the proper temporal reference point for a first-to-file inquiry.5 This conclusion was never contested in the parties' briefing, and the Supreme Court did not present it as an issue before it in its opinion. (citing McGee v. Arkel Int'l, LLC , 716 F.Supp.2d 572, 577 (S.D. Carter appealed the dismissal of the Carter Action to this Court. The fact that the Maryland Action had been dismissed prior to the district court's ruling on the Carter Action gave the court no pause, because it believed that whether a qui tam action is barred by [the first-to-file rule] is determined by looking at the facts as they existed when the action was brought. United States ex rel. Carson v. Manor Care, Inc., 851 F.3d 293, 303 (4th Cir. 3730(b)(5), and therefore violated the first-to-file rule. Id. 33 U.S.C. KBR's Vice President of Government Solutions submitted a declaration stating that KBR typically performs "operations and maintenance, laundry, water and ice production and delivery, firefighting, fuel delivery, and waste management" in Iraq. Notably, KBR's petition never questioned this Court's holding that the first-to-file analysis depends on the set of facts in existence at the time an FCA action is filed. Carter v. Halliburton Co. (Carter I), No. This lengthy test is highly fact dependent. "A complaint does not need detailed factual allegations, but the facts alleged must be enough to raise a right to relief above the speculative level. " Cicalese v. Univ. 2045, 76 L.Ed.2d 194 (1983) ); see Davila-Perez v. Lockheed Martin Corp. , 202 F.3d 464, 468 (1st Cir. 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. 2001) ("The LHWCA is a preemption defense. (Docket Entry Nos. Rule 59(e) motions can be successful in only three situations: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice. Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. The denial of the motion to dismiss is without prejudice to the defendant's ability to reurge the arguments, if appropriate, in a motion for summary judgment, after discovery targeted and limited to the Defense Base Act and combatant-activity defenses. Jan. 5, 2017) (arguing that Gadbois failed to give sufficient weight to the plain language of the first-to-file bar) (quoting Carter VI, 315 F.R.D. (Docket Entry No. Kellogg merged with Brown & Root Engineering and Construction creating one of the worlds premiere engineering, procurement, construction (EPC) and services companies. Relator's proposed amendment, however, did not reference, in any way, the first-to-file bar or the dismissal of the two earlier-filed, related actions. See id. 2017). Carter's proposed amendments, however, did not address the dismissals of the Maryland and Texas Actions, but instead centered on elucidating his damages theories with information that was available prior to the filing of the Carter Action. (Id. At the same time, we must adhere to the statutory provisions and limitations that Congress put into place in pursuit of that goal. , 744 F.3d at 351 ("[T]he extent to which [the defendant] was integrated into the military chain of command is unclear."). $ 83. Likewise, the majority opinion does not address whether the district court's rule categorically barring a relator from supplementing a complaint to cure a first-to-file defect is consistent with this Court's decision in Feldman v. Law Enforcemt Associates Corp., 752 F.3d 339, 347 (4th Cir. Rule 8 "does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." (Docket Entry No. The defendant may file a motion for summary judgment no later than September 17, 2021. Fisher , 667 F.3d at 610. See United States ex rel. SEI is an employment company that hires employees who perform work abroad under contracts awarded by various clients to KBR-related companies. Appellees Halliburton Company; Kellogg Brown & Root Services, Inc.; KBR, Inc.; and Service Employees International, Inc. (collectively, KBR), are a group of defense contractors and related entities that provided logistical services to the United States military during the armed conflict in Iraq. Without more information in the record, the court cannot reliably or accurately determine whether the plaintiffs were engaged in combatant activities. Harris , 724 F.3d at 482 ("The considerable discretion [the contractor] had in deciding how to complete the maintenance at issue here thus prevents the plaintiffs suit from being preempted because the military did not retain command authority over [the contractor's] actions. The Third and Fourth Circuits agree that the purpose of the combatant-activities exception is to "foreclose state regulation of the military's battlefield conduct and decisions." 3730(a), as well as through civil actionsknown as qui tam actionsthat are filed by private partiesknown as relatorsin the name of the Government, 31 U.S.C. Because the record supports federal jurisdiction, remand is denied. 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. In the course of reaching this holding, however, the Court contrasted the seal requirement with the first-to-file rule, which the Court described as one of a number of [FCA] provisions that do require, in express terms, the dismissal of a relator's action. Id. Carter's situation is different, because his proposed revision makes no mention of the related Maryland and Texas Actions. See La. The district court's judgments comport with this holding, and they are therefore. Carter resists this conclusion, based on unreasonable readings of certain statements from Carter III. 1998) ("We have previously held that corporate entities qualify as persons under 1442(a)(1)."). In particular, the majority opinion finds that the district court did not reversibly err in denying Relator leave to amend solely on grounds that his proposed amendment did not address any matters potentially relevant to the first-to-file rule, such as the dismissals of the [earlier-filed, related actions]. Ante at 20. Region 16, Fort Worth, Texas. 2d 698, 709 (S.D.N.Y. WebKellogg does not maintain offices or other facilities in Indiana and does not have bank accounts in Indiana. We conclude that it does. Circuit follow two different paths. Rigsby, 137 S. Ct. 436, 440 (2016); 31 U.S.C. 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. "); McGee , 716 F. Supp. Our innate curiosity about our surrounding world creates a work environment where all are encouraged to follow their inspiration, try new directions and work collaboratively whenever possible. KBR 1955 ). The Supreme Court concluded, [w]e therefore agree with the Fourth Circuit that the dismissal with prejudice of [Carter's] one live claim was error. Id. "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. With this understanding in mind, we reiterate the conclusion of our initial decision in this case. The plaintiffs do not describe the type of work they performed at the Al Asad base. Mesa v. California , 489 U.S. 121, 136, 109 S.Ct. , 744 F.3d at 348 ; Aiello , 751 F. Supp. While the district court's decision was reversed, the multiple-employer issue was not appealed. To that end, the majority opinion does not address, much less adopt, the district court's reasoning that an amendment or supplement to a complaint cannot, as a matter of law, cure a first-to-file defect, id. Id. Navy. 2d at 663. United States ex rel. Willingham v. Morgan , 395 U.S. 402, 407, 89 S.Ct. With respect to the third basis for reconsideration, Carter argues that the district court's decision to dismiss the Carter Action and to deny his proposed amendment was clearly erroneous and manifestly unjust. , 744 F.3d at 351 ; and supplied weapons to vessels fighting in a combat area, Koohi , 976 F.2d at 133637.