WebKBR Technical Services, Inc., Overseas Administration Services, Ltd., and Service Employees International, Inc. (collectively, the "KBR defendants"), on June 8, 2009. One plaintiff, Witherspoon, submitted a Defense Base Act Claim for Compensation stating that she was a "Senior Security Officer." WebService Employees International performed services for the U.S. Army under the Logistics Civil Augmentation Program (LOGCAP) IV contract. See United States ex rel. 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. Tex. at 620. Saleh v. Titan Corp. , 580 F.3d 1, 7 (D.C. Cir. 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. 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." This Court reviews a dismissal for lack of subject matter jurisdiction and questions of statutory interpretation de novo. Carson, 851 F.3d at 302. 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. 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. The email address cannot be subscribed. 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. Paul Papak OPINION AND 1955 ). 97-CV-1408, 1999 WL 33290613, at *1 (W.D. 1-5 at 6). 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. R. CIV. Programs , 461 U.S. 624, 636, 103 S.Ct. 3730(b)(5). Workers Comp. Region Assigned: 3730(b)(2). The main FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. Chovanec v. Apria Healthcare Group, Inc., 606 F.3d 361, 362 (7th Cir. KBR subsequently petitioned the Supreme Court for certiorari. 2020). See Gabelli v. SEC, 133 S. Ct. 1216, 1221 (2013) (describing the interests of defendants that are advanced by statutes of limitations). See S. Walk at Broadlands Homeowners Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. "); 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."). Because the record supports federal jurisdiction, remand is denied. , 744 F.3d at 348. See id. 25-1). 902(4) ; see also Fisher , 703 F. Supp. , 744 F.3d at 351 ("The district court therefore erred in resolving this issue before discovery took place."). 3729(a)(1). Unfortunately, KBR decided to ignore the unambiguous threats of retaliation levied by Iran following the death of General Qassem Soleimani. 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. Because we need not do so, we decline to comment on the other reasons the district court identified as justifying its rejection of Carter's effort to circumvent dismissal through amendment. The statement itself belies the notion that live means not in violation of the first-to-file rule: The statement expresses unqualified agreement with this Court, which had just issued a decision that both applied the first-to-file rule to the Carter Action and called for dismissal without prejudice in lieu of dismissal with prejudice. Burn Pit Litig. See Carson, 851 F.3d at 30203 (A belated relator who merely adds details to a previously exposed fraud does not help reduce fraud or return funds to the federal fisc, because once the government knows the essential facts of a fraudulent scheme, it has enough information to discover related frauds. (quoting United States ex rel. 2015). Bell Atl. Change the World! Second, courts determine whether refusing to apply the exception to government contractors would produce a "significant conflict" between unique federal interests and state law. Kellogg has no direct employees. Courts have disagreed, however, about when state tort law has the potential to conflict with military decisions during wartime. The D.C. KBR's motion to dismiss, (Docket Entry No. The plaintiffs claims are associated with acts taken under color of federal office. 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. Franks v. Ross, 313 F.3d 184, 198 n.15 (4th Cir. Carter first relies on the Supreme Court's statement that an earlier suit bars a later suit while the earlier suit remains undecided but ceases to bar that suit once it is dismissed. Carter III, 135 S. Ct. at 1978. In his complaint, Carter alleged that KBR had violated the FCA by fraudulently billing the government in connection with its water purification services.2. , 744 F.3d at 351. Another plaintiff, Andrade, submitted a Claim stating that she was a "Food Service Worker." Id. 88, 98 L.Ed. 1998) ("We have previously held that corporate entities qualify as persons under 1442(a)(1)."). 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. AFIA/CIGNA Worldwide v. Felkner , 930 F.2d 1111, 1112 (5th Cir. Halliburton Company is a publicly traded corporation and has no parent company. Co. v. J & J Maint., Inc. , 133 F. Supp. 470, 95 L.Ed. 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. Circuit suggested that the combatant-activities exception eliminates "tort from the battlefield." We reaffirm this holding today. ). The Court held that the first-to-file rule does not keep later actions out of court in perpetuity, id. Co., 853 F.3d 80, 8586 (2d Cir. 3d 358, 37374 (E.D. Carter v. Halliburton Co. (Carter V), 144 F. Supp. 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. Additionally, the district court held that all but one of the Carter Action's claims fell outside the applicable six-year statute of limitations on civil actions. The district court also rejected Carter's efforts to sidestep the first-to-file rule through amendment. 2d at 709 (citing O'Leary v. Brown-Pacific-Maxon, Inc. , 340 U.S. 504, 507, 71 S.Ct. 1442. 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. (Docket Entry No. Facts that may arise after the commencement of a relator's action, such as the dismissals of earlier-filed, related actions pending at the time the relator brought his or her action, do not factor into this analysis. "The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper." The plaintiffs do not describe the type of work they performed at the Al Asad base. Hayes v. Allstate Ins. KBR did not clarify the relationship among KBR, Service Employees International, and the LOGCAP IV contract. The This Court fully supports the FCA's noble goal of protecting the government's funds and property against fraud. 2007) (internal quotation marks omitted). This arrangement, Carter contends, conflicts with the Supreme Court's apparent policy preference for interpretations of the FCA that facilitate government recoveries. Ins. WebDaily Duties at Service Employee International,Inc. 1, 3). 33 U.S.C. 3730(b)(5), and therefore violated the first-to-file rule. 1955 ). , 744 F.3d at 351 ; and supplied weapons to vessels fighting in a combat area, Koohi , 976 F.2d at 133637. Courts determine whether the U.S. military has command authority over a contractor by examining the contractor's discretion in performing its duties. (Id. 959, 103 L.Ed.2d 99 (1989). Burn Pit Litig. 2d at 710. 3730(b)(1). 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. Carter v. Halliburton Co. (the Carter Action), No. 2017); United States ex rel. See Smith v. Clark/Smoot/Russell, 796 F.3d 424, 430 (4th Cir. WebSERVICE EMPLOYEES INTERNATIONAL INC.; KBR, INC., Respondents. SEI is an employment company that hires employees who perform work abroad under contracts awarded by various clients to KBR-related companies. 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. Here, the court has few, if any, facts about the relationship between the plaintiffs and KBR. Mar. 2017).1. 3730(d). KBR had the authority to supervise and evacuate the Service Employees International, Inc. employees. 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. KBR holds all leaders and employees to the highest standards of business and personal integrity, abiding by the strictest ethical and legal standards. The combatant-activities exception "preempt[s] state or foreign regulation of federal wartime conduct." We may affirm on any ground apparent from the record before us. 3. 15), is denied. To remove under 1442(a), KBR must show that "(1) it is a person within the meaning of the statute, (2) it acted pursuant to a federal officer's directions, (3) it asserts a colorable federal defense, " and (4) there is " a causal nexus between the defendant's acts under color of federal office and the plaintiff's claims." Rigsby, 137 S. Ct. 436, 440 (2016); 31 U.S.C. 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. 2014). Financial Highlights for the Quarter Ended March 31, 2023. The court will hear oral argument on the motion on October 27, 2021, by Zoom. Fisher v. Halliburton , 667 F.3d 602, 610 (5th Cir. The limited record shows that the military had control over the safety and defense protocols at the Al Asad base. The declaration, however, does not make clear whether the plaintiffs and Service Employees International performed the same functions as KBR. Id. The False Claims Act's first-to-file bar provides that [w]hen a person brings an action under [the False Claims Act], no person other than the Government may intervene or bring a related action based on the facts underlying the pending action. 31 U.S.C. FED. 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. (quotation and citations omitted). 28 U.S.C. See Carter II, 710 F.3d at 183. Because it did not have to reach the issue, the district court reserved judgment on whether the Texas Action also precluded the Carter Action. (Id. The court added that all of the Carter Action's claims would fall outside the limitations period if Carter were to refile his action. Contact us. Corporate Governance KBR's 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. Courts look to contract terms, Aiello , 751 F. Supp. 1998) ([T]he phrase bring a civil action means to initiate a suit.). 3730(b)(4). Welcome to KBR.com. at 5.2). Finding no error in the district court's denial, we affirm. Your download is being prepared. Appellees Halliburton Company; Kellogg Brown & Root Services, Inc.; KBR, Inc.; and Service Employees International, Inc. (collectively, KBR), are a group of defense 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. Financial Highlights for the Quarter Ended March 31, 2023. 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. On remand, Carter objected to the applicability of the first-to-file rule. (Id. (Docket Entry No. 2680(j) (emphasis added). Finally, the court explained that neither the Wartime Suspension and Limitations Act (WSLA) nor the principle of equitable tolling could toll the statute of limitations on the Carter Action's claims. Id. The plaintiffs ask the court to remand to state court; the defendant asks the court to dismiss the claims. See In re KBR, Inc., Burn Pit Litig. Koohi , 976 F.2d at 1337. 1-1 at 5.39). Va. 2015). KBR also meets the second prong, which is liberally construed. (Docket Entry No. In adopting the FCA, the objective of Congress was broadly to protect the funds and property of the government. United States ex rel. 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. 1980). 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. Courts have had little trouble concluding that the federal government has a unique federal interest in "the management of wars." Servs., Inc. , No. at 442444. The Supreme Court began by reversing this Court's conclusion that the WSLA's tolling provisions apply to civil actions like the Carter Action. 12-1497), 2013 WL 4541112. My name is [indiscernible], I will be your moderator for today's call. WebService Employee International,Inc. Carter appealed the dismissal of the Carter Action to this Court. We disagree for two reasons. See United States ex rel. 2015) (per curiam). Without more information in the record, the court cannot reliably or accurately determine whether the plaintiffs were engaged in combatant activities. But see United States v. Medco Health Solutions, Inc., No. This site requires JavaScript to be enabled in your browser. As explained above, in our original decision in this case, we reversed the district court's dismissal of the Carter Action with prejudice, and remanded with instructions to have the Carter Action dismissed without prejudice. To that end, the FCA contains strict limits on its qui tam provisions, including a statutory first-to-file rule. KBR, INC., KELLOGG, BROWN & ROOT SERVICE, INC., KBR TECHNICAL SERVICES, INC., OVERSEAS ADMINISTRATION SERVICES, LTD., and SERVICE EMPLOYEES INTERNATIONAL, INC., Defendants. The court will allow limited discovery on KBR's Defense Base Act defense. Lee H. Rosenthal, Chief United States District Judge. Find your next opportunity: Search for Job Title We are All In All In brings together our Inclusion and Cuvillier v. Taylor , 503 F.3d 397, 401 (5th Cir. Applying this logic, and finding no statute of limitations issue, we ruled that the district court's dismissal of the Carter Action should have been without prejudice instead of with prejudice. 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. This procedure enables the government to investigate the matter, so that it may decide whether to take over the relator's action or to instead allow the relator to litigate the action in the government's place. at 883. See United States ex rel. 2013) ; Aiello v. Kellogg, Brown & Root Servs., Inc. , 751 F. Supp. 2017) ). 1-1 at 5.2). For example, the Ninth Circuit's view would exclude claims stemming from "friendly fire," Harris , 724 F.3d at 480, and claims by "bystanders and allies, even in actual live-fire combat events," Aiello , 751 F. Supp. at 44243 (citing 31 U.S.C. KBR did not clarify the relationship among KBR, Service Employees International, and the LOGCAP IV contract. at *812 & n.11. 1955 ). We conclude that it does. 56, 59 (E.D. 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. This contention does not withstand scrutiny. 483 (1951) ). 2045, 76 L.Ed.2d 194 (1983) ); see Davila-Perez v. Lockheed Martin Corp. , 202 F.3d 464, 468 (1st Cir. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION. Carter (Carter III), 135 S. Ct. 1970 (2015) (No. Carter v. Halliburton Co. (Carter IV), 612 F. App'x 180 (4th Cir. Latiolais , 951 F.3d at 292 (citation omitted). 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." A complaint must contain "enough facts to state a claim to relief that is plausible on its face." At the time the Carter Action was brought, two allegedly related actions were already pending: United States ex rel. We cannot support Carter's reading. Carter v. Halliburton Co. (Carter II), 710 F.3d 171, 17476 (4th Cir. 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. 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. SEII and KBR were affiliated companies that were bothsubsidiariesofHalliburton,Inc. Duprey, No. at 1978 (explaining that because at least one claim [may be] timely on remand, the Court must consider whether [Carter's] claims must be dismissed with prejudice under the first-to-file rule). United States v. Dozier, 848 F.3d 180, 188 (4th Cir. 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." 2005); Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279 (10th Cir. Fisher , 667 F.3d at 610 (quoting Morrison-Knudsen Constr. WebKBR holds all leaders and employees to the highest standards of business and personal integrity, abiding by the strictest ethical and legal standards. 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. 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. WebBixby et al v. KBR, Inc. et al, No. 2012) ("We liberally construe this term."). BENJAMIN CARTER, Plaintiff - Appellant, v. HALLIBURTON CO.; KELLOGG BROWN & ROOT SERVICES, INC.; SERVICE EMPLOYEES INTERNATIONAL INC.; KBR, INC., Defendants - Appellees. The result of this welcoming mindset informs everything we do and accomplish, and has earned the respect of the worlds most renowned institutions. Gadbois v. PharMerica Corp., 809 F.3d 1 (1st Cir. 2510, 101 L.Ed.2d 442 (1988), to determine whether a Federal Tort Claims Act exception preempts state law. Placing profits over the safety of these individuals and contractors, KBR failed to evacuate them. 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. 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. 2. Claimant began working for employer in Iraq as a heavy truck driver in January 2005 and later became a convoy commander. 2012) ("[The plaintiffs claim for intentional infliction of emotional distress] will be dismissed because it can only be viewed as a negligence claim for which the exclusive remedy for the Plaintiffs is under the [Defense Base Act].").
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