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Harris v. Kellogg

April 30, 2009

CHERYL A. HARRIS, CO-ADMINISTRATIX OF THE ESTATE OF RYAN D. MASETH, DECEASED, AND DOUGLAS MASETH, CO-ADMINISTRATOR OF THE ESTATE OF RYAN D. MASETH, DECEASED, PLAINTIFFS,
v.
KELLOGG, BROWN & ROOT SERVICES, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM ORDER

I. BACKGROUND

This matter is before the Court on Defendant Kellogg, Brown & Root Services, Inc.'s ("KBR") Motion for Certification and Amendment of Order Pursuant to 28 U.S.C. § 1292(b) filed on April 21, 2009. (Docket No. 161). In said motion, KBR seeks leave to file an interlocutory appeal of this Court's Memorandum Opinion and Order issued on March 31, 2009, which denied KBR's motion to dismiss, without prejudice. (Docket No. 162). Plaintiffs Cheryl A. Harris and Douglas Maseth, Co-Administratrix and Co-Administrator of the Estate of Staff Sergeant Ryan D. Maseth ("Plaintiffs") filed a response on April 23, 2009, arguing that certification pursuant to section 1292(b) is not warranted. (Docket No. 163). Upon consideration of the parties' arguments, and based on the following, KBR's motion [161] is DENIED.

II. DISCUSSION

28 U.S.C. § 1292, entitled "Interlocutory decisions," provides: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference in opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

28 U.S.C. § 1292(b). Section 1292(b) grants the Court of Appeals jurisdiction to review the District Court's interlocutory order. "Certification pursuant to § 1292(b) should be granted 'sparingly' and only when three conditions are met: (1) where immediate appeal may avoid protracted and expensive litigation, (2) the request involves a controlling question of law, and (3) where there is a substantial basis for differing opinion." J.L. v. Ambridge Area School District, Civ. A. No. 06-1652, 2008 WL 906534, at *2 (W.D.Pa. Apr. 1, 2008)(citing Milbert v. Bison Laboratories, Inc., 260 F.2d 431, 433 (3d Cir. 1958); Orson, Inc., v. Miramax Corp., 867 F.Supp. 319, 321 (E.D. Pa. 1994)). The party seeking the interlocutory appeal has the burden to establish that all three conditions are met. In re Norvergence, Inc., Civ. A. No. 08-1910, 2008 WL 5136706, at *2 (D.N.J. Dec. 5, 2008). However, this Court has discretion to deny an interlocutory appeal even if that party meets its burden. See Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976)("The certification procedure is not mandatory; indeed, permission to appeal is wholly within the discretion of the courts, even if the criteria are present."). The Court now turns to each of the stated factors.

A. Controlling Question of Law

"An order involves a controlling question of law if either (1) an incorrect disposition would constitute reversible error if presented on final appeal or (2) the question is 'serious to the conduct of the litigation either practically or legally.'" In re Chocolate Confectionary Antitrust Litigation, 2009 WL 931530, at *2 (M.D.Pa. Apr. 8, 2009)(quoting Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir.1974)). KBR argues that the "controlling question of law at issue is whether the political question doctrine and/or the combatant activities exception to the Federal Tort Claims Act, 28 U.S.C. 2680(j) apply to Plaintiffs' claims and/or KBRSI's defenses under the facts as accepted by the Court for purposes of considering KBRSI's Motion to Dismiss." (Docket No. 162 at 1-2). KBR further contends that an appeal is warranted because had the Court reached a contrary conclusion, Plaintiffs' claims would have been dismissed and this litigation would have been terminated. (Id. at 3). In response, Plaintiffs maintain that an interlocutory appeal should not be permitted as KBR has failed to identify a reviewable controlling issue of law and that KBR merely disagrees with the Court's analysis and/or application of the law to the facts of this case. (Docket No. 163).

While the Court agrees with KBR that an incorrect disposition of its motion to dismiss could potentially be reversed on appeal, as could any ruling made by this Court, KBR ignores that its motion to dismiss was denied, without prejudice, and this Court explicitly held that "[i]f further factual development illuminates the presence of political questions in this action, KBR may renew its motion at that time." Harris v. Kellogg, Brown & Root Services, Inc., Civ. A. No. 08-563, 2009 WL 904695, at *27 (W.D.Pa. Mar. 31, 2009). In addition, KBR asserts generally that the application of the political question doctrine and the combatant activities exception to the facts of this case warrant appellate review at this juncture, but it does not challenge the legal standard employed by the Court in conducting its analysis, e.g., Baker v. Carr, 369 U.S. 186 (1962) and its progeny, or the line of cases discussing the "combatant activities" exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2680(j). Accordingly, in this Court's estimation, KBR has not identified a controlling question of law warranting an interlocutory appeal.

B. Substantial Basis for Differing Opinion

Even if the Court were to find that KBR has appropriately requested certification of a controlling question of law, it has failed to demonstrate that there is a substantial basis for differing opinion as to either the political question doctrine or the "combatant activities" exception to the FTCA within the Third Circuit. "A substantial ground for difference of opinion may be demonstrated by offering conflicting and contradictory opinions of courts which have ruled on the issue," J.L., 2008 WL 906534, at *2, or by "the absence of controlling law on a particular issue," Knipe v. SmithKline Beecham, 583 F.Supp.2d 553, 600 (E.D.Pa. 2008). For certification to be warranted, "[a] genuine doubt must exist about the legal standard governing a particular case." In re Chocolate Confectionary Antitrust Litigation, --- F.Supp.2d ---, Civ. A. No. 1:08-MDL-1935, 2009 WL 931530, at *3 (M.D.Pa. Apr. 8, 2009)(citing Knipe, 583 F.Supp.2d at 600).

KBR cites three decisions which have dismissed tort claims against private military contractors in support of its contention that there is a substantial ground for difference of opinion regarding its political question doctrine defense, Carmichael v. Kellogg Brown & Root Services, Inc., 564 F. Supp. 2d 1363 (N.D. Ga. 2008), appeal pending, Smith v. Halliburton Co., No. H-06-0462, 2006 WL 2521326 (S.D. Tex. Aug 30, 2006), and Whitaker v. Kellogg Brown & Root, Inc., 444 F. Supp. 2d 1277 (M.D. Ga. 2006). These district court decisions from outside of the Third Circuit are not binding and, as discussed in the Memorandum Opinion, are factually distinguishable from the instant matter. Harris, 2009 WL 904695, at *20. While this Court recognized that the "United States Court of Appeals for the Third Circuit has not addressed the application of the political question doctrine to claims against a private military contractor providing services to the military during wartime," id. at *15, the applicable legal standard for the political question doctrine is well-settled within the Third Circuit, where courts apply the six factors set forth by the Supreme Court in Baker to determine if a case or controversy is non-justiciable. See Gross v. German Foundation Indus. Initiative, 456 F.3d 363, 377 (3d Cir.2006)(applying Baker factors); Khouzam v. Attorney General of United States, 549 F.3d 235, 250 (3d Cir. 2008)(same). This Court applied the Baker factors in its analysis of Plaintiffs' claims and KBR's argument that its LOGCAP III contract and accompanying Task Order 139 were a viable defense to potential liability. Harris, 2009 WL 904695, at *15-27. Therefore, KBR has not established that a substantial difference of opinion exists regarding the application of the political question doctrine as there is no genuine doubt as to the applicable legal standard, and this Court "should not certify questions of relatively clear law merely because the losing party disagrees with the court's analysis." In re Chocolate Confectionary Antitrust Litigation, 2009 WL 931530, at *3 (citing Elec. Mobility Corp. v. Bourns Sensors/Controls, 87 F.Supp.2d 394, 398 (D.N.J.2000)).

With respect to the "combatant activities" exception to the Federal Tort Claims Act, KBR also argues that a substantial basis for differing opinion exists because there is a lack of precedent within the Third Circuit regarding the same. (Docket No. 162 at 5 (citing Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992), Bentzlin v. Hughes Aircraft, 833 F. Supp. 1486 (C.D. Cal. 1993); Ibrahim v. Titan Corp., Nos. 04-1248, 05-1165, 2007 WL 3274784 (D.D.C. Nov. 6, 2007)). This Court has recognized that the "combatant activities" exception is limited and aside from the cases cited by KBR, is aware of only one other decision that has applied the doctrine to bar tort claims against a private military contractor, Flanigan v. Westwind Technologies, Civ. A. No. 07-1124, 2008 U.S.Dist.LEXIS 82203 (W.D.Tenn. Sept. 15, 2008). In its Memorandum Opinion, this Court discussed all of these decisions, factually distinguished each of them from the instant matter, and found that Plaintiffs' claims did not arise out of the combatant activities of the military. Harris, 2009 WL 904695, at *28-30. The Court is not aware of any decisions addressing this issue within the Third Circuit. However, given the limited nature of the "combatant activities" exception and the fact that there are no conflicting decisions from district courts within this Circuit which would establish a need for our Court of Appeals to resolve the same immediately, an interlocutory appeal is not warranted as a substantial basis for differing opinion is not present.

Accordingly, the Court finds that KBR has failed to demonstrate that a substantial basis for differing opinion exists regarding the application of the political question doctrine or the "combatant activities" exception to the FTCA. This result is further supported by the fact that KBR's motion was denied, ...


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