The complaint alleges that Iran attacked the Al Asad base in "retaliation [for] the death of General Qassem Soleimani." The district court, however, dismissed Carter's 2013 complaint on first-to-file grounds, because it was brought while the Carter Action was still pending before the Supreme Court. 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. 1-1 at 5.39). Fisher v. Halliburton , 667 F.3d 602, 610 (5th Cir. The combatant-activities exception "preempt[s] state or foreign regulation of federal wartime conduct." My name is [indiscernible], I will be your moderator for today's call. First, courts identify the "uniquely federal interests" behind the exception. 1-5 at 6). In a qui tam action under the FCA, a relator files the complaint under seal, and serves a copy of the complaint and an evidentiary disclosure on the government. WebSERVICE EMPLOYEES INTERNATIONAL INC.; KBR, INC., Respondents. 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." KBR's motion to dismiss, (Docket Entry 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. 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. Finally, we note that KBR is not without policy arguments of its own. Accordingly, the Court proceeded to explore the potential application of the first-to-file rule. 4. 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. 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. Fisher , 667 F.3d at 610. 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. I work in Iraq for KBR and am paid by Service Employees Int"l in Dubai, UAE. civ. {Kbr In Iraq}: You highly value a work environment built on Oops! 2680(j) (emphasis added). 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. $ 16. Placing profits over the safety of these individuals and contractors, KBR failed to evacuate them. 2002). We do so in this case by holding that because the Carter Action violated the FCA's first-to-file rule in a manner not cured by subsequent developments, the action must be dismissed. Va. 2015). 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. at 5.2). 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?). 3730(b)(1). 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. A complaint must contain "enough facts to state a claim to relief that is plausible on its face." 959, 103 L.Ed.2d 99 (1989). Based on the pleadings, the record, and the applicable law, the court finds no basis to remand, and denies the motion to dismiss. 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. 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. The plaintiffs ask the court to remand to state court; the defendant asks the court to dismiss the claims. The Defense Base Act "includes a provision making an employer's liability under the workers compensation scheme exclusive." 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. 3730(b)(2). The Supreme Court granted certiorari, and then affirmed in part and reversed in part this Court's decision. 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. filed June 5, 2007) (the Maryland Action), and a sealed action filed in Texas in 2007 (the Texas Action). Research & Policy Director Service Employees International Union Local (Former Employee) - San Jose, CA - March 12, 2020. They allege that they were employed by Service Employees International, and that KBR supervises Service Employees International. 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. No publicly held corporation owns 10% or more of Halliburton Companys stock. While KBR did not directly employ the plaintiffs, it was a party to the LOGCAP IV contract. Hayes v. Allstate Ins. Franks v. Ross, 313 F.3d 184, 198 n.15 (4th Cir. Carter then petitioned for certiorari, and the Supreme Court granted that petition. at 6.3). They sustained significant injuries. We disagree for two reasons. See Smith v. Clark/Smoot/Russell, 796 F.3d 424, 430 (4th Cir. 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. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 2010) case opinion from the District of Oregon U.S. Federal District Court 2510. 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. 2002) (citing 28 U.S.C. 6. 2012) ; see also 42 U.S.C. The attack was allegedly in retaliation for the killing of General Qassem Soleimani. 1955 ). See Carter II, 710 F.3d at 183. 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. 1991). The company's corporate offices are in the KBR Tower in Downtown Houston. The company also has large offices in Arlington, Virginia, Birmingham, Alabama, and Newark, Delaware, in the United States and Leatherhead in the UK. 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.") 1955, 167 L.Ed.2d 929 (2007). WebService Employees International, Inc. (SEII) through KBR to work as an electrician in Afghanistan. The Carter Action was not Carter's first attempt to sue KBR under the FCA. 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. , 744 F.3d at 351 ("The district court therefore erred in resolving this issue before discovery took place."). 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. at 180. In 2013, while the Supreme Court was still considering Carter's petition for certiorari, Carter refiled his complaint in the Eastern District of Virginia. At the time the Carter Action was brought, two allegedly related actions were already pending: United States ex rel. Revenue of $1.7 billion, up 18% on an ex-OAW 1 year-over-year-basis. Rather than address any matters potentially relevant to the first-to-file rule, such as the dismissals of the Maryland and Texas Actions, the proposed amendment simply adds detail to Carter's damages theories.6 As such, we see no reason why that proposal would have cured the first-to-file defect in the Carter Action. 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. Id. Harm in these scenarios might be the product of U.S. military decisions. Another plaintiff, Andrade, submitted a Claim stating that she was a "Food Service Worker." If the contractor has significant discretion in the way it performs its duties, the military does not retain command authority. 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. Circuit approaches and instead following, as the more persuasive, the Third and Fourth Circuit reasoning. "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. In this case, the plaintiffs are suing the parent company of their employer; in Fisher , the plaintiffs sued their employer and other affiliated entities. Courts apply a three-step test, derived from Boyle v. United Technologies Corp. , 487 U.S. 500, 507, 108 S.Ct. Fisher , 667 F.3d at 610 (citing 42 U.S.C. WebKBR was created in 1998 when M.W. 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. 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. KBR is a signatory to the LOGCAP IV contract, (Docket Entry No. The threshold issues are whether the claims belong in federal court and whether there are viable claims at all. Halliburton Company is a publicly traded corporation and has no parent company. 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. 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. As such, the district court dismissed the Carter Action with prejudice. The FCA's liability scheme is enforced through civil actions filed by the government, 31 U.S.C. 1 5 at 4- 9). Carter timely noticed an appeal of the district court's rulings dismissing the Carter Action, denying Carter's motion for amendment, and denying Carter's motion for reconsideration. Koohi , 976 F.2d at 1337. Adjusted free cash flows1. WebHighly supportive work environment. 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. A defendant acts under a federal officer's directions when it acts under a contract with the federal government to perform "a job that, in the absence of a contract with a private firm, the Government itself would have had to perform." at 43940. & Prod. Thorough consideration should be given to limiting discovery initially to such defenses."). Stay up-to-date with how the law affects your life. at 5960. The record is similarly lacking in information needed for the court to examine and determine what KBR did to manage the work Service Employees International's employees, including the plaintiffs, did at the base. BENJAMIN CARTER, Plaintiff - Appellant, v. HALLIBURTON CO.; KELLOGG BROWN & ROOT SERVICES, INC.; SERVICE EMPLOYEES INTERNATIONAL INC.; KBR, INC., Defendants - Appellees. Click here to learn how to enable. , 744 F.3d at 348 ("We find the Third Circuit's analysis persuasive and adopt its formulation of the interest at play here."). (Id. at 620. We follow this text today, and decline to manufacture such flexibility, even if it may raise statute of limitations problems for certain FCA relators. 3730(b)(4). In ordinary parlance, one bring[s] an action by institut[ing] legal proceedings. Bring an Action, Black's Law Dictionary 231 (10th ed. 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. 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. One plaintiff, Witherspoon, submitted a Defense Base Act Claim for Compensation stating that she was a "Senior Security Officer." See United States ex rel. 1-5 at 613). Project, Inc. v. Lincoln Prop. 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.). 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. (citation omitted). (Docket Entry No. Circuit recognized this by limiting preemption to contractor actions over which "the military retains command authority." 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. , 744 F.3d at 348 ; Aiello , 751 F. Supp. 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. Off. WebKellogg does not maintain offices or other facilities in Indiana and does not have bank accounts in Indiana. Region Assigned: 12). v. ASARCO LLC, 135 S. Ct. 2158, 2169 (2015) (internal quotation marks omitted).

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