On this record, the court cannot conclude as a matter of law that KBR and Service Employees International were, or were not, under military command authority. (quoting Twombly , 550 U.S. at 556, 127 S.Ct. Our reading respects the statutory text underlying the first-to-file rule. The answer to this question turned on how a court should read the first-to-file rule's prohibition on the bringing of an FCA action while a related action is pending. 31 U.S.C. To determine whether the combatant-activities exception preempts a state tort claim, courts apply the "command-authority" test. The declaration, however, does not make clear whether the plaintiffs and Service Employees International performed the same functions as KBR. 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. at 5.37, 5.38). See Carter III, 135 S. Ct. 1970. 3730(b)(4). The Defense Base Act extends workers compensation coverage under the Longshore and Harbor Workers Compensation Act to "employees of American contractors engaged in construction related to military bases in foreign countries, and to foreign projects related to the national defense whether or not the project is located on a military base." 3:2009cv00632 - Document 44 (D. Or. But we all share one goal: to improve the world responsibly and safely. ; and Service Employees International, Inc. (collectively, KBR), are a group of defense contractors and related entities that provided logistical services to the United States This conclusion, we add, was consistent with the conclusions of widespread, pre-Carter III circuit case law. Johnson v. United States , 170 F.2d 767, 770 (9th Cir. The plaintiffs allege that they worked at the Al Asad base under the LOGCAP IV contract between the U.S. Army and Service Employees International. Co., 853 F.3d 80, 8586 (2d Cir. 3-1 at 1, 25-1, 25-2); KBR has an insurance policy, as required under the Act, (Docket Entry No. The defendant may file a motion for summary judgment no later than September 17, 2021. Although the Carter Action was brought while related FCA actionsnamely the Maryland and Texas Actionswere still pending, Carter argues that the intervening dismissals of the latter actions dictate that the dismissal of the Carter Action on first-to-file grounds was unwarranted. Carter v. Halliburton Co. (Carter V), 144 F. Supp. KBR removed to federal court under the federal-officer removal statute, the plaintiffs moved to remand, and KBR moved to dismiss. , 744 F.3d at 349. Id. 56, 59 (E.D. This lengthy test is highly fact dependent. 2510, 101 L.Ed.2d 442 (1988), to determine whether a Federal Tort Claims Act exception preempts state law. KBR did not produce a copy of the LOGCAP IV contract, and no discovery has taken place. 2069, 144 L.Ed.2d 408 (1999). WebKellogg does not maintain offices or other facilities in Indiana and does not have bank accounts in Indiana. WebCajetan Okeh v. Service Employees International (2014) Jeremy Stokes v. Service Employees International, Inc. (2014) James Breashears v. Brown and Root 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. UNITED STATES BENJAMIN CARTER v. HALLIBURTON CO KELLOGG BROWN ROOT SERVICES INC SERVICE EMPLOYEES INTERNATIONAL INC KBR INC. Create an account and take our 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. Court:UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION. Courts apply a three-step test, derived from Boyle v. United Technologies Corp. , 487 U.S. 500, 507, 108 S.Ct. (citation omitted). at 181. We then addressed the first-to-file rule. See Carter III, 135 S. Ct. 1970. They made an honest effort to make sure their employees Fisher , 703 F. Supp. Revenue of $1.7 billion, up 18% on an ex-OAW 1 year-over-year-basis. 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. Without more information in the record, the court cannot reliably or accurately determine whether the plaintiffs were engaged in combatant activities. 483 (1951) ). 1955 ). at 4). 5 (1953) ; the plaintiffs filed a claim under the Act against KBR, alleging that KBR is its employer, (Docket Entry Nos. 1-5 at 12). WebService Employees International Inc. (SEII) did a fantastic job in moving people around in Iraq, where I was contracted to work. Latiolais , 951 F.3d at 292 (citation omitted). Second, Gadbois is factually distinguishable. Co. v. Dir. The Fisher plaintiffs were military-contractor employees providing logistics and support services in Iraq when insurgents attacked their convoys, injuring them. Under the Act, "[e]mployers relinquish[ ] their defenses to tort actions in exchange for limited and predictable liability," and "[e]mployees accept the limited recovery because they receive prompt relief without the expense, uncertainty, and delay that tort actions entail." 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. The court will hear oral argument on the motion on October 27, 2021, at 10:00 a.m ., by Zoom. The FCA's liability scheme is enforced through civil actions filed by the government, 31 U.S.C. Id. civ. Welcome to the KBR First Quarter 2023 Earnings Conference Call. 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. Burn Pit Litig. See, e.g., Walburn v. Lockheed Martin Corp., 431 F.3d 966, 972 n.5 (6th Cir. The main Thorough consideration should be given to limiting discovery initially to such defenses."). See Smith v. Clark/Smoot/Russell, 796 F.3d 424, 430 (4th Cir. No publicly held corporation owns 10% or more of Halliburton Companys stock. "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." at 883. Transcript : KBR, Inc., Q1 2023 Earnings Call, May 01, 2023. 25-1). 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. An FCA violator may be held responsible for treble damages in addition to civil penalties. I write separately to emphasize the narrow scope of that conclusion. Corporate Governance KBR's 1-1 at 5.1, 5.36). 1-1 at 5.39). 2680(j). For support, Carter cited United States ex rel. (quotation and citations omitted). 2002) (citing 28 U.S.C. 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. The district court denied Relator leave to amend on grounds of futility, holding as a matter of law that a relator cannot cure a first-to-file defect by amending or supplementing his complaint after dismissal of all earlier-filed, related actions. But see United States v. Medco Health Solutions, Inc., No. WebInc. The same reasoning applies here. To that end, the FCA contains strict limits on its qui tam provisions, including a statutory 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. The plaintiffs allege that KBR was not a party to the LOGCAP IV contract. Our job is to follow the text even if doing so will supposedly undercut a basic objective of the statute. Baker Botts LLP. (Id. Together, KBR employees are pushing industries and organizations forward, from our headquarters in Houston, Texas, to Earths orbit and beyond. The Court then remanded this case for further proceedings. Our first decision in this case held 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. Carter II, 710 F.3d at 183. Off. The complaint alleges that in January 2020, Iran launched ballistic missiles at the United States Army forward operating base in Al Asad, Iraq. Id. Heath v. AT&T, Inc., 791 F.3d 112, 11921 (D.C. Cir. This arrangement, Carter contends, conflicts with the Supreme Court's apparent policy preference for interpretations of the FCA that facilitate government recoveries. KBR also meets the second prong, which is liberally construed. 10). 11-684-RGA, 2017 WL 63006, at *12 (D. Del. 2002). See Carter II, 710 F.3d at 183. Id. 2012) ; see also 42 U.S.C. With respect to the first basis for reconsideration, Carter claims that the 2015 Gadbois decisionwhere the First Circuit held that an FCA action's first-to-file defect can be cured by a Rule 15(d) supplement clarifying that an earlier-filed, related action that gave rise to the defect has been dismissedconstitutes an intervening change in controlling law. 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." 8. 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. The plaintiffs claims are associated with acts taken under color of federal office. 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. 2017).1. Watson v. Philip Morris Cos., Inc. , 551 U.S. 142, 154, 127 S.Ct. (Docket Entry No. Co. , 920 F.3d 890, 900 (5th Cir. Research & Policy Director Service Employees International Union Local (Former Employee) - San Jose, CA - March 12, 2020. 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. P. 12(b)(6). In Fisher , the Fifth Circuit addressed similar claims. 3d 358, 37374 (E.D. 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. 1955 ). Without the contract or other information in the record, the court cannot reliably or accurately determine what kind of work Service Employees International performed at the Al Asad base, much less the level of discretion KBR had over that work. KBR may file a motion for summary judgment on the Defense Base Act and combatant-activities exceptions no later than September 17, 2021. Halliburton Company is a publicly traded corporation and has no parent company. We therefore remanded this case to the district court for further proceedings. Fisher , 703 F. Supp. Your download is being prepared. Paul Papak OPINION AND Liability under the FCA is no small matter. The D.C. We disagree for two reasons. 2016). 1955, 167 L.Ed.2d 929 (2007). Va. filed June 2, 2011). 470, 95 L.Ed. The Ninth Circuit and D.C. The plaintiffs do not allege that Iran attacked them out of "personal animosity" or for "purely personal reasons." The court has jurisdiction under 28 U.S.C. Id. Please try again. 2009). This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Carter contends that the first and third bases for reconsideration are implicated in this case. 2d at 709 (citing O'Leary v. Brown-Pacific-Maxon, Inc. , 340 U.S. 504, 507, 71 S.Ct. (Docket Entry No. Under the employment agreement, Rogers agreed to submit any claims to arbitration in accordance with the Halliburton Dispute Resolution Program (Docket Entry No. 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."). 4. 2019). 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. Click here to learn how to enable. 2d at 710 ; Saleh , 580 F.3d at 7. 1651(c) ); see also Flying Tiger Lines, Inc. v. Landy , 370 F.2d 46, 52 (9th Cir. 3. WebWe are the Service Employees International Union (SEIU), a union of about 2 million diverse members in healthcare, the public sector and property services who believe in and fight for Tex. 2. 2011) (citation omitted); Saleh , 580 F.3d at 6. 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." 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. SEII and KBR were affiliated companies that were bothsubsidiariesofHalliburton,Inc. The present record does not make clear what work the plaintiffs did or what services they provided at the Al Asad base. 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. 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. This site requires JavaScript to be enabled in your browser. {Kbr In Iraq}: Deliver water in tractor tank at a military base in Iraq What they like about Service Employee International,Inc. See Gadbois, 809 F.3d at 46. at 197578. The plaintiffs motion to remand, (Docket Entry No. The plaintiffs position is that the Defense Base Act does not apply because they did not have a direct employment relationship with KBR. Id. Latiolais v. Huntington Ingalls, Inc. , 951 F.3d 286, 29091 (5th Cir. 2005) ; Carr v. Lockheed Martin Tech. See Martin v. Halliburton , 618 F.3d 476, 488 (5th Cir. Carter v. Halliburton Co. (Carter II), 710 F.3d 171, 17476 (4th Cir. Se., Inc. , 913 F.2d 178 (5th Cir. This test states that "[d]uring wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor's engagement in such activities shall be preempted." Therefore, Carter's proposed amendment was properly denied.7. Adjusted free cash flows1. Contact us. 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. United States v. Holland, 214 F.3d 523, 527 (4th Cir. 2017) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. The D.C. I agree with the majority opinion's conclusion that the dismissal of all earlier-filed, related actions does not, by operation of law, lift the first-to-file bar on a later-filed action. 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. (Docket Entry No. WebSERVICE EMPLOYEES INTERNATIONAL INC.; KBR, INC., Respondents. 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. 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. 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. Transcript : KBR, Inc., Q1 2023 Earnings Call, May 01, 2023. 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. KBR Technical KBR Technical is a payroll company that provides payroll services to the majority of KBR-related company employees in the United States. The record reveals little other information about the work the plaintiffs performed at the Al Asad base, or about what level of discretion Service Employees International had over that work. "A party may remove an action from state court to federal court if the action is one over which the federal court possesses subject matter jurisdiction." The allegations are that there was missile attack that was willful, carried out by third parties, the direct cause of the plaintiffs injuries, and related to the U.S. military's operations in Iraq. Ins. 3730(b)(5). For 100 years, KBR has been part of some of the worlds most influential achievements. (Docket Entry Nos. 2014)). FED. 2013) (It is well-established that parties cannot amend their complaint through briefing or oral advocacy.). , 744 F.3d at 351 ("[T]he extent to which [the defendant] was integrated into the military chain of command is unclear."). Finally, KBR meets the fourth prong, showing that the plaintiffs claims are "alternatively connected or associated" with "acts under color of federal office." (Docket Entry No. With this understanding in mind, we reiterate the conclusion of our initial decision in this case. (Docket Entry No. See State Farm Fire & Cas. See 31 U.S.C. Although the present record is insufficient for the court to determine whether either or both defenses apply, KBR has asserted a colorable basis to infer that one or both may preempt the plaintiffs claims. 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 Chovanec v. Apria Healthcare Group, Inc., 606 F.3d 361, 362 (7th Cir. 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. Flanagan's declaration, submitted by KBR, states that the Army was responsible for establishing the "defense procedures and force protection postures" that applied to military and civilian personnel at the Al Asad base. 2014) ; Harris v. Kellogg Brown & Root Servs., Inc. , 724 F.3d 458, 479 (3d Cir. The FCA imposes liability for knowingly presenting false or fraudulent claims to the government of the United States for payment or approval. We may affirm on any ground apparent from the record before us. 1:11-cv-602, 2011 WL 6178878, at *8 (E.D. 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. Id. UNITED STATES ex rel. 2d 669, 683 (D. Md. Financial Highlights for the Quarter Ended March 31, 2023. Id. Servs., Inc. , No. 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. 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. at 5960. Army."). II. Harris , 724 F.3d at 479 ; see also Burn Pit Litig. Daniel L. Russell, Jr., Pro Hac Vice, Raymond B. Biagini, Pro Hac Vice, Covington & Burling LLP, Washington, DC, Susan D. Noe Wilson, Schouest, Bamdas, Soshea & BenMaier, PLLC, Houston, TX, for Defendant. For a discussion of unsuccessful, pre-Carter Action suits brought by Carter against KBR, see United States ex rel. As such, we conclude that Carter III left the above-described holding intact. (Docket Entry 1-1 at 5.39). See Carter II, 710 F.3d at 17781. World Airways, Inc. , 338 F.2d 319, 322 (5th Cir. Although Carter and his counsel referenced the dismissals of the Maryland and Texas Actions in their briefing and during oral arguments, these references do not rise to the level of proposed revisions to a complaint. at 1979 (quoting Pending, Black's Law Dictionary 1314 (10th ed. 1955 ). 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." 33 U.S.C. Learn more about FindLaws newsletters, including our terms of use and privacy policy. The district court denied Carter's motion for reconsideration, explaining that Gadbois did not constitute new controlling law justifying reconsideration because it was decided outside this Circuit. 2007) (internal quotation marks omitted). Carter then petitioned for certiorari, and the Supreme Court granted that petition. In this case, back before this Court for a third time, we consider whether the first-to-file rule mandates dismissal of a relator's action that was brought while related actions were pending, even after the related actions have been dismissed and the relator's complaint has been amended, albeit without mention of the related actions. On the present record, the court is also unable to determine whether, and to what extent, KBR and Service Employees International were integrated into the military chain of command. 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." WebKBR holds all leaders and employees to the highest standards of business and personal integrity, abiding by the strictest ethical and legal standards. at 1979. Saleh , 580 F.3d at 9 ; see also Burn Pit Litig. At the time the Carter Action was brought, two allegedly related actions were already pending: United States ex rel. R. CIV. at 197879; rather, the rule only keeps later actions out of court if their earlier-filed counterparts are pending, which the Court defined to mean [r]emaining undecided, id. KBR did not clarify the relationship among KBR, Service Employees International, and the LOGCAP IV contract. (Docket Entry No. The Defense Base Act is "liberally construed," Voris v. Eikel , 346 U.S. 328, 333, 74 S.Ct. Id. See Ruppel v. CBS Corp. , 701 F.3d 1176, 1181 (7th Cir. Carter opposed certiorari, insisting that this Court correctly decided that the district court's jurisdictional dismissal of the case should have been without prejudice. Brief in Opposition at 17, Carter III, 135 S. Ct. 1970 (No. 2015) ("We observe that sufficient federal direction has also been found under 1442(a) when a private contractor performed maintenance on generators at an Army encampment, based on the fact that this work was done under Army supervision and that the contractor could not expand the scope of its work without authorization.") Good morning, ladies and gentlemen. (Docket Entry No. 2d at 664. 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."). 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. 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." 2510. The court will allow limited discovery on KBR's Defense Base Act defense. Third, courts determine whether the "private service contractor [was] integrated into combatant activities over which the military retains command authority." WebServices, Ltd., and Service Employees International, Inc. The lead-up to Carter's second-quoted statement confirms that the Court was only using the description live to mean not time-barred. See id. Co. v. J & J Maint., Inc. , 133 F. Supp. Id. Marcus Raymond Spagnoletti, State Bar Information, Eric Jonathan Rhine, Spagnoletti Law Firm, Houston, TX, for Plaintiffs. Latiolais , 951 F.3d at 292. 1441(a) ). The court added that all of the Carter Action's claims would fall outside the limitations period if Carter were to refile his action.