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." , 744 F.3d at 349. First, as an out-of-circuit decision, Gadbois cannot constitute controlling law in this Circuit. See Smith v. Clark/Smoot/Russell, 796 F.3d 424, 430 (4th Cir. , 744 F.3d at 351. Rule 8 "does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." KBR highlighted other decisions suggesting that parent companies qualify as employers under the Act, but these were decisions on summary judgment motions, not motions to dismiss. WebSERVICE EMPLOYEES INTERNATIONAL, INCORPORATED and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Employer/Carrier- Respondents Associates, Inc., 380 U.S. 359 (1965). 3730(b)(1). 12-1497), 2013 WL 4541112. APPLICATION OF PLAINTIFF FOR AN EXTENSION OF TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT CERTIFICATE OF SERVICE I, David S. Stone, counsel for Petitioner, certify that on this I 61h day of 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. 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 Ninth Circuit and D.C. One plaintiff, Witherspoon, submitted a Defense Base Act Claim for Compensation stating that she was a "Senior Security Officer." Click here to learn how to enable. 2009) ). Branch Consultants v. Allstate Ins. The court will allow limited discovery on KBR's Defense Base Act defense. 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 Fifth Circuit construes the statute in favor of remand and construes ambiguities against the removing party. at 5960. Transcript : KBR, Inc., Q1 2023 Earnings Call, May 01, 2023. Kevin Cloyd, Nickalandra Witherspoon, and Lucille Andrade were employed by Service Employees International and working at the Al Asad base when the attack occurred. 8:07-cv-1487 (D. Md. Reading the exception to cover actions against military contractors arising out of events involving U.S. military decisions and actions prevents "second-guessing [of] military judgment." 1-1 at 5.2, 5.39). Our precedent on this issue is clear: The first-to-file rule is designed to restrict the bringing of certain types of suits, so when a relator brings an FCA action to court in violation of the first-to-file rule, the court must dismiss the action. Carson, 851 F.3d at 302. Revenue of $1.7 billion, up 18% on an ex-OAW 1 year-over-year-basis. 3730(b)(2). 902(2). The Fisher plaintiffs were military-contractor employees providing logistics and support services in Iraq when insurgents attacked their convoys, injuring them. (Docket Entry No. at 1979. 2. Claimant began working for employer in Iraq as a heavy truck driver in January 2005 and later became a convoy commander. The subsequent dismissals of the Maryland and Texas Actions do not alter the fact that Carter brought the Carter Action while factually related litigation remained pending, and those dismissals therefore do not cure the Carter Action's first-to-file defect. Id. See Carter II, 710 F.3d at 183. But we all share one goal: to improve the world responsibly and safely. The plaintiffs motion to remand, (Docket Entry No. 1-5 at 4). KBR's corporate officers guide all operations, ensuring all activity is executed responsibly. 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." Accordingly, the Court proceeded to explore the potential application of the first-to-file rule. The record also shows that KBR's ability to control any civilian personnel, including the plaintiffs, was subject to the U.S. military's control over the Al Asad base, a forward operating base in Iraq. The Defense Base Act "includes a provision making an employer's liability under the workers compensation scheme exclusive." I write separately to emphasize the narrow scope of that conclusion. 97-CV-1408, 1999 WL 33290613, at *1 (W.D. See 31 U.S.C. 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." Around here, we define the future. We are a company of innovators, thinkers, creators, explorers, volunteers and dreamers. But we all share one goal: to improve the world responsibly and safely. Together, KBR employees are pushing industries and organizations forward, from our headquarters in Houston, Texas, to Earths orbit and beyond. 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. Contact us. Accordingly, the Supreme Court's decision in Carter III does not disturb our initial holding that the reference point for a first-to-file analysis is the set of facts in existence at the time that the action under review is commenced. (Docket Entry Nos. The court authorizes limited discovery on KBR's Defense Base Act and combatant-activities defenses. 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. 2014). 25-2). See id. 1-1 at 5.39). KBR, INC., KELLOGG, BROWN & ROOT SERVICE, INC., KBR TECHNICAL SERVICES, INC., OVERSEAS ADMINISTRATION SERVICES, LTD., and SERVICE EMPLOYEES INTERNATIONAL, INC., Defendants. WebBrown & Root provides engineering consulting services, including project management, operations and maintenance including: Industrial Small-Cap Construction; Installation; Maintenance; Repair; Turnaround services. 2000) ("The purpose of the Defense Base Act is to provide uniformity and certainty in availability of compensation for injured employees on military bases outside the United States."). KBR's petition challenged this Court's holding in connection with the WSLA, as well as its holding that a relator could bring an FCA action after the dismissal of a related action. 1442(a)(1), to remove an action, even if the plaintiff's complaint raises no federal question, so long as the officer asserts a "colorable federal defense," Latiolais , 951 F.3d at 291. 3. 2d at 663. Id. 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 allege that KBR was not a party to the LOGCAP IV contract. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. (Docket Entry No. $ 83. Simply put, Carter was ineligible for relief on a motion for reconsideration, and thus the district court did not err in denying him such relief. United Bus. 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. Harm in these scenarios might be the product of U.S. military decisions. 2013). Copyright 2023, Thomson Reuters. 2069, 144 L.Ed.2d 408 (1999). 3-1 at 1 n.1). 2510. 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. The plaintiffs were working under a predecessor to the LOGCAP IV contract at issue here. See S. Walk at Broadlands Homeowners Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. Good morning, ladies and gentlemen. Koohi , 976 F.2d at 1337. We have previously held otherwise, see Carson, 851 F.3d at 303, and we do not attempt to revisit this Circuit's rule here. at 877. 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. 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." O'Keeffe v. Pan Am. WebServices, Ltd., and Service Employees International, Inc. 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. 1. 1955 ). 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.). 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. 1813, 23 L.Ed.2d 396 (1969) ; Arizona v. Manypenny , 451 U.S. 232, 242, 101 S.Ct. Service Employees International performed services for the U.S. Army under the Logistics Civil Augmentation Program (LOGCAP) IV contract. 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. 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. 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. 2d at 702, 71213 ; maintained "electrical systems at a barracks in an active war," Harris , 724 F.3d at 481 ; performed waste-management and water treatment functions to aid military personnel in a combat area, Burn Pit Litig. We note briefly that two of our sister circuits have held that a first-to-file defect bears only on the merits of a relator's action, rather than on a district court's jurisdiction over it. Another plaintiff, Andrade, submitted a Claim stating that she was a "Food Service Worker." Carter v. Halliburton Co. (the Carter Action), No. Courts look to contract terms, Aiello , 751 F. Supp. Without more, the court cannot conclude, as a matter of law, that KBR does, or does not, qualify as the plaintiffs employer under the Defense Base Act. Learn more about FindLaws newsletters, including our terms of use and privacy policy. Id. application of plaintiff for an extension of time to file a petition for a "The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper." 1955 ). 2d at 714 ("Any renovation activities required approval from the [the military] before they could be performed."). Fisher , 703 F. Supp. For 100 years, KBR has been part of some of the worlds most influential achievements. Lee H. Rosenthal, Chief United States District Judge. 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." (Docket Entry No. 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. Placing profits over the safety of these individuals and contractors, KBR failed to evacuate them. My name is [indiscernible], I will be your moderator for today's call. Webkbr, inc. and services employees international, inc., defendants.))))) Wood v. Allergan, Inc., No. 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. 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. Make your practice more effective and efficient with Casetexts legal research suite. 1-5 at 4), and owns Service Employees International. The Supreme Court, therefore, agreed with this Court's conclusion that dismissal with prejudice of any timely aspect of the Carter Action was improper. 2680(j). Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. Servs., Inc. , No. 3730(d). We agreed with the district court that courts 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. Id. Fisher , 703 F. Supp. 2000). Kellogg merged with Brown & Root Engineering and Construction creating one of the worlds premiere engineering, procurement, construction (EPC) and services companies. at 183. 56, 59 (E.D. The basis for our decision to dismiss was our view that Carter had violated the first-to-file rule by bringing the Carter Action while related FCA actions were still pending; the basis for our decision to dismiss without prejudice was our view that Carter could refile his case following the dismissals of earlier-filed, related FCA actions. Fisher , 667 F.3d at 613. The complaint alleges that in January 2020, Iran launched ballistic missiles at the United States Army forward operating base in Al Asad, Iraq. We likewise review a denial of a motion for reconsideration under the deferential abuse of discretion standard. This Court fully supports the FCA's noble goal of protecting the government's funds and property against fraud. Programs , 461 U.S. 624, 636, 103 S.Ct. 1955 ). Bell Atl. Id. Watson v. Philip Morris Cos., Inc. , 551 U.S. 142, 154, 127 S.Ct. 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 3730(b)(5), and therefore violated the first-to-file rule. 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. 2012). (Docket Entry No. Willingham v. Morgan , 395 U.S. 402, 407, 89 S.Ct. 2020). 3730(b)(4). Liability under the FCA is no small matter. Mesa v. California , 489 U.S. 121, 136, 109 S.Ct. 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. 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. The plaintiffs argue that this is enough to distinguish Fisher . Grow. 2301, 168 L.Ed.2d 42 (2007) ; see also Latiolais , 951 F.3d at 291 ("[The contractor's] status as a person and its federal contract with the Navy satisfy the first and second conditions. 2010) case opinion from the District of Oregon U.S. Federal District Court 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. Co. v. Dir. Under the employment agreement, Rogers agreed to submit any claims to arbitration in accordance with the Halliburton Dispute Resolution Program Carter's appeal centered on first-to-file issues, as well as the possibility that the WSLA tolled the statute of limitations on his claims. 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. 3d 358, 37374 (E.D. 31 U.S.C. 31 U.S.C. 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. (citation omitted). 2d at 664. See Gadbois, 809 F.3d at 46. Va. filed June 2, 2011). WebService Employee International,Inc. The court added that all of the Carter Action's claims would fall outside the limitations period if Carter were to refile his action. In Rigsby, the Supreme Court considered whether a violation of the FCA provision mandating that relators file their complaints under seal could only be sanctioned with dismissal. The Supreme Court granted certiorari, and then affirmed in part and reversed in part this Court's decision. 3. Defendant Kellogg Brown & Root Services, Inc. ("KB&RS"), is a corporation organized under the laws of the State of Delaware with its principal place of business in Houston, Texas. 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. WebBixby et al v. KBR, Inc. et al, No. 2013) ; Aiello v. Kellogg, Brown & Root Servs., Inc. , 751 F. Supp. See United States ex rel. Here, the court has few, if any, facts about the relationship between the plaintiffs and KBR. 2d at 710. WebCareers at KBR | KBR job opportunities Belong. , 744 F.3d at 351 ("[T]he extent to which [the defendant] was integrated into the military chain of command is unclear."). Id. Welcome to the KBR First Quarter 2023 Earnings Conference Call. 2d at 714, and "the extent to which [the contractor] was integrated into the military chain of command," Burn Pit Litig. The result of this welcoming mindset informs everything we do and accomplish, and has earned the respect of the worlds most renowned institutions. You will be notified when it is ready. This contention does not withstand scrutiny. at 620. This Court rejected the district court's statute of limitations conclusion, reasoning that the WSLA applied to civil actions and suspended the time for filing the Carter Action. 2671, several courts have applied the combatant-activities exception to government contractors. Next, Carter tries to rely on the Supreme Court's statement that it agree[s] with the Fourth Circuit that the dismissal with prejudice of [Carter's] one live claim was error. Carter III, 135 S. Ct. at 1979. KBR removed to federal court under the federal-officer removal statute, the plaintiffs moved to remand, and KBR moved to dismiss. Courts have disagreed, however, about when state tort law has the potential to conflict with military decisions during wartime. The main Carter v. Halliburton Co. (Carter I), No. See Ross v. DynCorp , 362 F. Supp. 1, 3). 1948) ; Burn Pit Litig. See McBurney v. Young, 667 F.3d 454, 465 (4th Cir. 2010) ("Because the basis for many of these defenses is a respect for the interests of the Government in military matters, district courts should take care to develop and resolve such defenses at an early stage while avoiding, to the extent possible, any interference with military prerogatives. Saleh , 580 F.3d at 9 ; see also Burn Pit Litig. Marcus Raymond Spagnoletti, State Bar Information, Eric Jonathan Rhine, Spagnoletti Law Firm, Houston, TX, for Plaintiffs. But it is unclear what these defense procedures and force-protection postures were and how they applied to the plaintiffs, to Service Employees International, or to KBR. (Id. 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. As such, we conclude that Carter III left the above-described holding intact. Johnson v. United States , 170 F.2d 767, 770 (9th Cir. Saleh , 580 F.3d at 7. Kellogg has no direct employees. (Docket Entry No. at 50712, 108 S.Ct. 3729(a)(1). 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. Duprey, No. State tort law interferes with this purpose when the military exercised some level of control over the contractor's allegedly tortious actions, but not when "the federal government has little or no control over a contractor's conduct." Do not close your browser or leave the NLRB 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. 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." Were we to hold that a statutorily-barred action (i.e., an action brought while a related action is pending) could be revived by an event occurring outside the FCA's limitations period (i.e., dismissal of the related action), we would be undermining an FCA defendant's interest in repose and avoiding stale claims outside the limitations period. This policy argument offers no basis for disregarding the first-to-file rule's unambiguous statutory text. 11-cv-602 (E.D. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION. KBR also meets the second prong, which is liberally construed. 1-5 at 613). 2004); United States ex rel. (Docket Entry No. Tex. Carter asserts that these holdings would compel a court, sitting after the FCA's limitations period has run, to dismiss a relator's timely FCA action brought during the pendency of a then-pending, but since-dismissed, related action, and thereby expose the relator (if he or she sought to file a new complaint) to statute of limitations problems that the relator otherwise would not face. We disagree for two reasons. We affirm. They made an honest effort to make sure their employees 1980). Adjusted free cash flows1. at 7, 11). A federal defense is colorable "unless it is immaterial and made solely for the purpose of obtaining jurisdiction or wholly insubstantial and frivolous. " Latiolais , 951 F.3d at 296 (quoting Zeringue v. Crane Co. , 846 F.3d 785, 79394 (5th Cir. III purposes." Tex. R. CIV. Int'l , 986 F.2d 1103, 1104 (7th Cir. The court explained that Carter's proposed amendment could not change the fact that the Carter Action was brought in violation of the first-to-file rule. The False Claims Act (FCA) empowers private individuals acting on behalf of the government to bring civil actions against those that defraud the government. 25-3); and the plaintiffs have alleged that KBR had control over them, (Docket Entry No. WebService Employees International Inc. (SEII) did a fantastic job in moving people around in Iraq, where I was contracted to work. Fisher , 667 F.3d at 610 (quoting Morrison-Knudsen Constr. 2d at 710. The Act does not define "employer." See Heavin v. Mobil Oil Expl. WebService Employees International Union (SEIU) is a 501(c)(5) labor union representing over 2 million workers in about 100 occupations in the United States and Canada. Va. 2016). The third prong is also met. Welcome to the KBR First Quarter 2023 Earnings Conference Call. Co. , 920 F.3d 890, 900 (5th Cir. That text does not purport to restrict the continuation of an FCA action while a related action is pending; rather, it restricts the bring[ing] of an FCA action while a related action is pending. Because the Carter Action violated the first-to-file rule, and because the only remedy for such a violation is dismissal, the district court was correct to dismiss the Carter Action. United States ex rel. We have jurisdiction over this appeal pursuant to 28 U.S.C. Region Assigned: WebSERVICE EMPLOYEES INTERNATIONAL INC.; KBR, INC., Respondents. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. Tex. Circuit recognized this by limiting preemption to contractor actions over which "the military retains command authority." No publicly held corporation owns 10% or more of Halliburton Companys stock. The Fifth Circuit held that the plaintiffs claims were barred under the Defense Base Act. Fisher , 667 F.3d at 610 (citing 42 U.S.C. {Kbr In Iraq}: Deliver water in tractor tank at a military base in Iraq What they like about Service Employee International,Inc. Tex. Id. The court will hear oral argument on the motion on October 27, 2021, by Zoom. WebOther than its ultimate parent (KBR, Inc.), Service Employees International, Inc. does not have any publicly traded affiliates. UNITED STATES ex rel. Appellees Halliburton Company; Kellogg Brown & Root Services, Inc.; KBR, Inc.; and Service Employees International, Inc. (collectively, KBR), are a group of defense at 481 ("After all, if the contractors conduct did follow from the military's decisions or orders, then the conduct would presumably not be in violation of the contract."). "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." Section 1442(a) permits "any officer of the United States or person acting under [him or her]," 28 U.S.C.
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