’ Supr_eme Court, U.S.

FILED

No. 06- 8 5 7 WzC ~0 2006

OFFICE OF THE CLERK

3n tier ~upr~m~ ~urt ~f tier t~lnit~i~ ~tat~

BLACKWATER SECURITY CONSULTING, LLC, et al.,

Petitioners,

RICHARD P. NORDAN,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL P. SOCARRAS

M. MILLER BAKER

MICHAEL S. NADEL

MCDERMOTT WILL ~ EMERY LLP

600 Thirteenth Street, N.W.

Washington, DC 20005

(202) 756-8000

KENNETH W. STARR

Counsel of Record

RICK RICHMOND

K1RKLAND ~¢ ELLIS LLP

777 South Figueroa Street

Los Angeles, CA 90017

(213) 680-8400

JOSEPH E. SCHMITZ

THE PRINCEGROUP

1650 Tysons Boulevard, Suite 800

McLean, VA 22102

(703) 663-6997

Attorneys for Petitioners Blaekwater Security Consulting LLC,

and Blaekwater Lodge and Training Center, Inc.

Additional Counsel Listed on Inside Front Cover

December 20, 2006

WILSON-EPES PRINTING Co., INC. - (202) 789-0096 - WASHINGTON, D.C. 20001

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 1 of 44

BLACKWATER SECURITY CONSULTING, LLC et al v. WESTCHESTER SURPLUS LINES INSURANCE COMPANY et al Doc. 55 Att. 19

Dockets.Justia.com
KIRK G. WARNER

SMITH, ANDERSON, BLOUNT,

DORSETT, MITCHELL & JERN1GAN

P.O. Box 2611

Raleigh, NC 27602

(919) 821-1220

SUSAN E. ENGEL

JENNIFER S. ATKINS

KIRKLAND & ELLIS LLP

655 Fifteenth Street, N.W.

Washington, DC 20005

(202) 879-5000

Attorneys for Petitioners Blackwater Security Consulting LLC,

and Blackwater Lodge and Training Center, Inc.

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 2 of 44
QUESTIONS PRESENTED

In a far-reaching decision of enormous practical

importance to the nation’s unfolding military effort in Iraq

and Afghanistan, the Fourth Circuit has exposed U.S.

civilian contractors carrying on their Defense Departmentmandated operations in hostile territory to the destabilizing

reach of fifty state tort systems in this country. In remanding

this closely-watched case to the state courts of North

Carolina, the court of appeals deepened a circuit conflict

going to the fundamental power of federal courts to

adjudicate -- through dismissal -- actions that by their

nature are exclusively federal. By so doing, the Fourth

Circuit has relegated civilian contractors serving in

profoundly dangerous circumstances to the vagaries of a

Balkanized regime of conflicting legal systems among the

several States. Indeed, the state court has already

commenced proceedings in this action, permitting

respondents to proceed with discovery relating to U.S.

military operations and planning. The Court should grant

certiorari on the questions presented below, or, alternatively,

call for the views of the Solicitor General on these questions,

which have far-reaching implications for the nation.

The questions presented are two:

1. Whether a federal district court that lacks subjectmatter jurisdiction over a removed action must dismiss rather

than remand the action when the state court also lacks

jurisdiction.

2. Whether a court of appeals has jurisdiction to review

a district court’s remand order notwithstanding 28 U.S.C.

§ 1447(d) when the remand order would circumvent federal

statutory and federal constitutional designs to preclude state

court jurisdiction.

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 3 of 44
PARTIES TO THE PROCEEDING

The parties to this proceeding are Petitioners Blackwater

Security Consulting, LLC and Blackwater Lodge and

Training Center, Inc.; and Respondent Richard P. Nordan.

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 4 of 44
111

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioners state

that Blackwater Security Consulting, LLC, and Blackwater

Lodge and Training Center, Inc., are wholly-owned

subsidiaries of The Prince Group. No publicly-held

company owns 10% or more of the stock of any of the

foregoing entities.

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 5 of 44
BLANK PAGE

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 6 of 44
V

TABLE OF CONTENTS

Page

PARTIES TO THE PROCEEDING .....................................

ii

o°o

CORPORATE DISCLOSURE STATEMENT ...................

111

TABLE OFCONTENTS..., ...................................................

v

TABLE OF AUTHORITIES ..............................................

vii

OPINIONS BELOW ..............................................................

1

JURISDICTION .....................................................................

1

STATUTES INVOLVED ......................................................

1

STATEMENT OF THE CASE ..............................................

3

REASONS FOR GRANTING THE PETITION ...................

9

I. The Court Should Resolve An Important And

Recurring Question Of Federal Practice Over

Which The Federal Courts Are In Disarray .....................

9

II. The Court Of Appeals Has Jurisdiction To

Review A Remand Order Notwithstanding 28

U.S.C. § 1447(d) When The Remand Order

Would Circumvent Federal Statutory And Federal

Constitutional Designs To Preclude State Court

Jurisdiction .....................................................................

19

CONCLUSION ....................................................................

27

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 7 of 44
BLANK PAGE

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 8 of 44
vii

TABLE OF AUTHORITIES

Page(s)

Cases

Aliota v. Graham,

984 F.2d 1350 (3d Cir. 1993) ...........................................

24

Arizona v. Manypenny,

451 U.S. 232 (1981) ...................................................

10, 15

Asarco, Inc. v. Glenara, Ltd.,

912 F.2d 784 (5th Cir. 1990) ............................................

13

Barbara v. NYSE,

99 F.3d 49 (2d Cir. 1996) .................................................

13

Bell v. City of Kellogg,

922 F.2d 1418 (9th Cir. 1991) ..........................................

13

Borneman v. United States,

213 F.3d 819 (4th Cir. 2000) ......................................

14, 17

Bromwell v. Mich. Mut. Ins. Co.,

115 F.3d 208 (3d Cir. 1997) .............................................

14

Calcano-Martinez v. INS,

533 U.S. 348 (2001) .........................................................

23

Cedano-Viera v. Ashcrofi,

324 F.3d 1062 (9th Cir. 2003) ..........................................

23

Chelsea Cmty. Hosp. v. Mich. Blue Cross Ass ’n,

630 F.2d 1131 (6th Cir. 1980) ..........................................

24

Coyne ex rel. Ohio v. Am. Tobacco Co.,

183 F.3d 488 (6th Cir. 1999) ............................................

14

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 9 of 44
viii

Czerkies v. Dep "t of Labor,

73 F.3d 1435 (7th Cir. 1996) ............................................

24

Dep "t of Revenue v. Inv. Fin. Mgmt. Co.,

831 F.2d 790 (8th Cir. 1987) ............................................

12

Doe v. Cheney,

885 F.2d 898 (D.C. Cir. 1989) .........................................

23

Edwards v. U.S. Dep "t of Justice,

43 F.3d 312 (7th Cir. 1994) ..............................................

16

Ethridge v. Harbor House Rest.,

861 F.2d 1389 (9th Cir. 1988) ..........................................

12

Fisher v. Halliburton,

454 F. Supp. 2d 637 (S.D. Tex. 2006) ......................

15, 25

Franchise Tax Bd. of California v. Constr. Laborers

Vacation Trust for S. California,

463 U.S. 1 (1983) .............................................................

10

Gen. Inv. Co. v. Lake Shore & Mich. S. Ry. Co.,

260 U.S. 261 (1922) ............................................. 10, 11, 13

Gilligan v. Morgan,

413 U.S. 1 (1973) ................................................. 19, 23, 25

Humphries v. Various Fed. USINS Employees,

164 F.3d 936 (5th Cir. 1999) ............................................

24

In re Elko County Grand Jury,

109 F.3d 554 (9th Cir. 1997) ............................................

16

International Primate Protection League v. Administrators

of Tulane Educational Fund,

500 U.S. 72 (1991) ........................................................... 

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ix

Johnson v. Robison,

415 U.S. 361 (1974) .............................................

22, 23, 24

Koppers Co. v. Con ’l Cas. Co.,

337 F.2d 499 (8th Cir. 1964) ............................................

10

Lambert Run Coal Co. v. Baltimore & Ohio R.R.,

258 U.S. 377 (1922) ...............................................

9, 11, 13

Lane v. Halliburton,

No. H-06-1971, 2006 WL 2583438

(S.D. Tex. Sept. 7, 2006) ..................................................

15

Lontz v. Tharp,

413 F.3d 435 (4th Cir. 2005)) ............................................

6

Mangold v. Analytic Servs., Inc.,

77 F.3d 1442 (4th Cir. 1996) ............................................

14

McBryde v. Comm. to Review Circuit Council Conduct,

264 F.3d 52 (D.C. Cir. 2001) ...........................................

24

McMahon v.Presidential Airways, Inc.,

410 F. Supp. 2d 1189 (M.D. Fla. 2006) .....................

15, 17

Mignogna v. Sair Aviation, Inc.,

937 F.2d 37 (2d Cir. 1991) ..............................................

13

Nyeholt v. Secretary of Veterans Affairs,

298 F.3d 1350 (Fed. Cir. 2002) ........................................

24

Osborn v. Haley,

422 F.3d 359 (6th Cir. 2005) ............................................

20

Osborn v. Haley, 19, 20 126 S. Ct. 2017 (2006) ...............................................

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X

Paluca v. Sec "y of Labor,

813 F.2d 524 (lst Cir. 1987) ............................................. 24

Roach v. W. Va. Reg’l Jail & Corr. Facility Auth.,

74 F.3d 46 (4th Cir. 1996) ................................................

14

S. Windsor Convalescent Home v. ~rathews,

541 F.2d 910 (2d Cir. 1976) .............................................

24

Schacht v. Wis. Dep "t of Corrs.,

116 F.3d 1151 (7th Cir. 1997) ..........................................

14

Shives v. CSX Transportation, lnc. (ln re CSX Transp.),

151 F.3d 164 (4th Cir. 1998) ..................................

6, 13, 18

Smith v. Cromer,

159 F.3d 875 (4th Cir. 1998) ............................................ 16

Smith v. Halliburton,

No. H-06-0462, 2006 WL 2521326;

(S.D. Tex. Aug. 30, 2006) .......................................... 15, 26

Smith v. Wis. Dep "t of Agric.,

23 F.3d 1134 (7th Cir. 1994) ............................................

14

Smith-Idol v. Halliburton,

No. H-06-1168, 2006 WL 2927685

(S.D. Tex. Oct. 11, 2006) .................................................. 26

Tarble "s Case,

80 U.S. 397 (1872) ............................................... 19, 23, 25

Thermtron Products, lnc. v. Hermansdorfer,

423 U.S. 336 (1976) ...............................................

7, 17, 24

Un&. of S. Ala. v. Am. Tobacco Co.,

168 F.3d 405 (1 lth Cir. 1999) .......................................... 14

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xi

Waco v. U.S. Fidelity & Guaranty Co.,

293 U.S. 140 (1934) .........................

i ...............................

..7

Webster v. Doe,

486 U.S. 592 (1988) .........................................................

23

Whitaker v. Kellogg Brown & Root, Inc.,

444 F. Supp. 2d. 1277 (M.D. Ga. 2006) ..........................

26

Woodson v. Halliburton Corp.,

No. H-06-2107, 2006 U.S. Dist. LEXIS 70311 (S. D. Tex.

Sept. 28, 2006) ................................................................. 26

Statutes

10 U.S.C. § 802 ....................................................................

18

10 U.S.C. § 802(a)(10) .................................................

1, 8, 18

10 U.S.C. § 919(b) .................................................................

9

28 U.S.C. § 1254(1) ...............................................................

1

28 U.S.C. § 1331 ....................................................................

5

28 U.S.C. § 1441 ....................................................

5, 6, 15, 16

28 U.S.C. § 1441(a) ...............................................................

2

28 U.S.C. § 1441(f) ....................................................

2, 12, 15

28 U.S.C. § 1442 ..................................................................

16

28 U.S.C. § 1442(a)(1) ...................................................

15, 16

28 U.S.C. § 1447 ..............................................................

9, 15

28 U.S.C. § 1447(c) ...................................................

2, 14, 16

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 13 of 44
xii

28 U.S.C. § 1447(d) ......................................................

passim

28 U.S.C. § 2679

"°’° ..... °*’*’°’*°°°°°°’° .... °°°°°’°’°’’’°*’° ............ °,°,, .... 20

33 U.S.C. § 921

’’’°’°’°°°°° ........ °’°’°’’’°°’°’°’’’° ........ °’°’’’°°’°’*-°o° ...... 18

38 U.S.C. § 21 l(a) ................................................................

22

42 U.S.C. § 1651

°*’°’°’°’’°’°°°’° ........ °’°’°°’°°°’°’’’* ...... °’°’°’°°°°°°,°,* ..... 1

42 U.S.C. § 1651(a) .......................................................

18, 21

42 U.S.C. § 1651(c) ......................................................

passim

42 U.S.C. § 1653(a) ...............................................................

5

42 U.S.C. § 1653(b) ...............................................................

5

5 U.S.C. § 8128(b) ...............................................................

24

8 U.S.C. § 1252(a)(2)(C) .....................................................

23

INA § 242(a)(2)(C) ..............................................................

23

N.C. Gen. Stat. § 28A-18-2 ....................................................

5

U.S. Const. art. I, § 8 ..............................................................

9

Rules

14B Charles Alan Wright, et al., FEDERAL PRACTICE &

PROCEDURE (3d ed. 1998) ..............................  ̄ ........... 10, 

16 MOORE’S FEDERAL PRACTICE § 107.41 [ 1 ][e][iii][E] (3d

ed. 2006) .................................

14 ....... °.°...°°° ...... ° .... ..°.°.°°° ......

House Report 1070 (1941) ...................................................

21

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 14 of 44
xiii

National Defense Authorization Act

for Fiscal Year 2007, Pub. L. No. 109-364,

120 Stat. 2083 ....................................................................

8

Senate Report No. 92-1175 (1972) ...................................... 

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 15 of 44
BLANK PAGE

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 16 of 44
OPINIONS BELOW

The opinion of the court of appeals is reported at 460

F.3d 576 and is reprinted in the Appendix at App. la-32a.

The opinion of the district court is reported at 382 F. Supp.

2d 801 and is reprinted in the Appendix at App. 33a-57a.

JURISDICTION

The judgment of the court of appeals was entered on

August 24, 2006. A timely-filed petition for rehearing and

suggestion for rehearing en banc was denied on September

28, 2006. App. 58a-60a. This Court has jurisdiction under

28 U.S.C. § 1254(1).

STATUTES INVOLVED

The Defense Base Act, 42 U.S.C. § 1651 et seq.

("DBA"), is reprinted in its entirety in the Appendix

beginning at App. 61a.

 ̄ 42 U.S.C. § 1651(c) provides, in pertinent part:

Liability as exclusive. The liability of an employer,

contractor (or any subcontractor or subordinate subcontractor

with respect to the contract of such contractor) under this

chapter shall be exclusive and in place of all other liability of

such employer, contractor, subcontractor, or subordinate

contractor to his employees (and their dependents) coming

within the purview of this chapter, under the workmen’s

compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of

any such employee may have been made or entered into.

10 U.S.C. § 802(a)(10) provides:

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 17 of 44
2

The following persons are subject to this chapter: ... In time

of declared war or a contingency operation, persons serving

with or accompanying an armed fon:e in the field.

28 U.S.C. § 1441(a) provides, in pertinent part:

Except as otherwise expressly provided by Act of Congress,

any civil action brought in a State court of which the district

courts of the United States have original jurisdiction, may be

removed by the defendant or the defendants, to the district

court of the United States for the district and division

embracing the place where such action is pending.

28 U.S.C. § 1441(0 provides:

The court to which a civil action is removed under this

section is not precluded from hearing and determining any

claim in such civil action because the State court from which

such civil action is removed did not have jurisdiction over

that claim.

28 U.S.C. § 1442(a)(1) provides, in pertinent part:

A civil action or criminal prosecution commenced in a State

court against any of the following may be removed by them

to the district court of the United States for the district and

division embracing the place .wherein :it is pending:

(1) The United States or any agency thereof or any officer

(or any person acting under that officer) of the United States

or of any agency thereof, sued in an official or individual

capacity for any act under color of such office or on account

of any right, title or authority claimed under any Act of

Congress for the apprehension or punishment of criminals or

the collection of the revenue.

28 U.S.C. § 1447(c) provides, in pertinent part:

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 18 of 44
A motion to remand the case on the basis of any defect other

than lack of subject matter jurisdiction must be made within

30 days after the filing of the notice of removal under section

1446(a). If at any time before final judgment it appears that

the district court lacks subject matter jurisdiction, the case

shall be remanded.

28 U.S.C. § 1447(d) provides:

An order remanding a case to the State court from which it

was removed is not reviewable on appeal or otherwise,

except that an order remanding a case to the State court from

which it was removed pursuant to section 1443 of this title

shall be reviewable by appeal or otherwise.

STATEMENT OF THE CASE

1. Petitioners are United States military contractors

carrying out profoundly dangerous missions in various

theaters of battle, including in Iraq and Afghanistan. In

faithfully discharging their duties under contracts with the

U.S. Department of Defense, petitioners’ contract personnel

daily enter wildly unpredictable, deeply menacing physical

environments. 1 Lives are sometimes lost in that dangerfilled zone of contractual duty. These contract-mandated

functions are, by their very nature, utterly and completely

federal. There is no room for introducing the vagaries of

state tort law in determining the nature and scope of a

contractor’s duty to its employees, who heroically volunteer

U.S. military doctrine provides that "[t]he Department[ of Defense]’s

Total Force -- its active and reserve military components, its civil

servants, and its contractors -- constitutes its warfighting capability and

capacity." Since contractors are part of the nation’s war-fighting force,

"It]he Department’s policy now directs that performance of commercial

activities by contractors, including contingency contractors and any

proposed contractor logistics support arrangements, shall be included in

operational plans and orders."

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 19 of 44
4

for these extraordinarily dangerous assignments. Yet, the

Fourth Circuit has done exactly that. In this highly

controversial decision, the court of appeals has relegated

petitioners -- and myriad federal contractors serving in Iraq

and Afghanistan -- to the tort law of the several States

when, as here and as so frequently happens in times of war,

tragedy strikes. This Court’s intervention is urgently needed

to vouchsafe the federal integrity of the Total Force structure

of the United States military --- a carefully fashioned

organizational arrangement authoiized by Congress and

implemented by the Executive Branch as the most

expeditious strategy for carrying out the nation’s enormously

challenging missions. War-ri:sk liability exposure (particularly if its contours must be defined by the tort laws

of the fifty States) is inherently unknowable and uninsurable,

and thus incompatible with this Total Force policy, which

provides for a war-fighting capability that includes

commercial contractors. Under the regime left standing by

the Fourth Circuit, a state court in Raleigh will determine

whether -- on the streets of Falluiah ~ decedents were

properly armed and commanded. This simply cannot be.

At a barebones minimum, this Court should not let the

Fourth Circuit’s destabilizing judgment stand without

seeking the guidance of the United States.

2. On March 31, 2004, Iraqi insurgents in Fallujah, Iraq,

killed four Americans working for Petitioner Blackwater

Security Consulting, LLC. An Iraqi mob beat and set fire to

their bodies, and hung some of their remains from a bridge.

The four decedents were accompanying a truck convoy

bound for U.S. Army Camp Ridgeway. App. 4a.

3. Pursuant to the federal workers’ compensation

program that Congress created as an exclusive remedy to be

administered by the U.S. Department o f Labor, see 42 U.S.C.

§ 1651(c) (liability under the Defens,~ Base Act ("DBA")

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 20 of 44
5

"shall be exclusive and in place of all other liability"); id.

§§ 1653(a)-(b) (providing for U.S. Department of 

administration of DBA benefits and providing for federal

judicial review), decedents’ DBA beneficiaries applied for

and have been receiving -- maximum-rate benefits under

the DBA. The U.S. Department of Labor has entered a final

compensation order finding that one decedent (Zovko) 

covered by, and entitled to benefits under, the DBA, and has

entered a preliminary finding that a second decedent

(Teague) is likewise entitled to DBA benefits. Respondents’

counsel, who represents the DBA beneficiaries in agency

proceedings as well, has refused to consent to the formal

conclusion of agency proceedings as to the other two

decedents.

4. On January 5, 2005, plaintiff Richard P. Nordan, in

his capacity as administrator for the four decedents’ estates,

filed a complaint in North Carolina state court claiming that

Petitioners Blackwater Security Consulting, LLC,

Blackwater Lodge and Training Center, Inc., and Justin L.

McQuown (collectively "Blackwater") had a duty under

North Carolina’s wrongful death statute, N,C. Gen. Stat. §

28A-18-2, to provide decedents with armored vehicles,

intelligence, additional training, planning time, and rear

gunners equipped with "SAW Mach 46" heavy automatic

weapons. The complaint also seeks rescission, under North

Carolina fraud law, of decedents’ contracts with Blackwater

to support United States military operations overseas. Those

contracts contain detailed provisions releasing Blackwater

from any and all risk of war liability. App. 36a-39a.

Nordan filed his complaint in the Superior Court for

Wake County, North Carolina. App. 33a. Blackwater

removed the case, citing 28 U.S.C. § 1441 and 28 U.S.C. §

1331, and asserting that Nordan’s state-law claims were

completely preempted by the DBA’s exclusive remedy.

App. 4a. Once in the district court, Blackwater filed a

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 21 of 44
motion to dismiss on the basis that DBA workers

compensation benefits, the exclusive remedy provided by

Congress, had been claimed by -- and paid for -- the four

decedents, ld. Nordan opposed dismissal and moved to

remand. App. 34a.

The district court granted Nordan’s motion to remand

and denied as moot Blackwater’s motion to dismiss. The

court held that "the DBA does not completely preempt state

law claims" because the statute "provides for the exclusive

filing of a claim for wrongful death benefits with the

Secretary of Labor, the adjudication of such claims by a

deputy commissioner or administrative law judge, the review

of claims by the Benefits Review Board, and appellate

review by a federal court of appeals." and thus, according to

the district court, "United States District Courts are not

involved in the claims adjudication process." App. 47a

("’[T]he sine qua non of complete preemption is a preexisting federal cause of action thai~. can be brought in the

district courts.’") (quoting Lontz v. T,~arp, 413 F.3d 435, 442

(4th Cir. 2005)). Finding a lack of complete preemption, 

court held that there was no federal question basis for

removal under 28 U.S.C. § 1441. The court acknowledged

that under Shives v. CSX Transportation, lnc. (ln re CSX

Transp.), 151 F.3d 164, 171 (4th Cir. 1998), it would 

required to dismiss rather than to remand if the DBA

deprived the state court of subject-matter jurisdiction.

However, determining that it had no jurisdiction to determine

the extent of DBA coverage, the district court declined to

reach the issue. App. 56a.

5. Blackwater appealed and petitioned for a writ of

mandamus. Nordan moved to dismiss the appeal and the

mandamus petition on the grounds that 28 U.S.C. § 1447(d)

prohibits review of Section 1447(c) remand orders.

Blackwater defended as to the presence of appellate

jurisdiction, asserting that the district court based its order of

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 22 of 44
7

remand not on its lack of original federal question

jurisdiction under Section 1441, but on its finding that it

lacked jurisdiction to determine whether the DBA deprives

the state court of jurisdiction.

The Fourth Circuit dismissed Blackwater’s appeal under

Section 1447(d) and denied mandamus. App. 32a. The

court of appeals acknowledged the exceptions to Section

1447(d) that this Court recognized in Thermtron Products,

lnc. v. Hermansdorfer, 423 U.S. 336 (1976), and Waco v.

U.S. Fidelity & Guaranty Co., 293 U.S. 140 (1934), but

concluded that none of those exceptions applied. App. 12a13a. The court of appeals also recognized that the district

court erred in finding that the federal district courts have no

role in considering the coverage of the DBA.

The district court incorrectly concluded that the federal

district courts play no role in the adjudication of DBA

claims. The federal district courts, followed by the federal

courts of appeals and the United States Supreme Court,

review DBA claims after they have been initially adjudicated

in the Department of Labor.

App. 6a n.2. Even so, the court of appeals found that the

trial court’s conclusion that it lacked jurisdiction to decide

the state court’s jurisdiction was not reviewable because

"It]he correctness of the district court’s jurisdictional

analysis is irrelevant under § 1447(d)." App. 25a. The

appeals court thus failed to distinguish between the trial

court’s finding that it lacked original jurisdiction to

adjudicate the complaint, and the trial court’s subsequent

finding that it lacked jurisdiction under the DBA to decide

whether the state court had jurisdiction.

In declining review, the court of appeals permitted the

state court to decide whether a state tribunal may, through

the application of state tort law, regulate the manner in which

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 23 of 44
United States armed forces supply lines are kept open under

enemy fire in a foreign theater of war -- even though

Congress created an exclusive adnainistrative remedy under

the DBA in order to preclude state court jurisdiction over

such constitutionally (and militarily) sensitive

determinations. The Fourth Circuit recognized the

"magnitude of the concerns Blackwater articulates" with

respect to the constitutional allocation of foreign affairs and

war powers to the United States, but it declined "to graft a

new exception onto the already significantly burdened text of

§ 1447(d)." App. 27a.

Blackwater’s concerns -- that state court proceedings

will impermissibly intrude into areas constitutionally

reserved to the federal governmenl~ ~ have already been

realized. On December 15, 2006, after Blackwater had filed

its demand for arbitration, and over Blackwater’s objection

that the state court lacks subject-matter jurisdiction, the state

court granted, in chambers, respondent’s request to issue a

commission for an out-of-state deposition in this case, and

thus proceeded to exercise jurisdiction to permit discovery

before Blackwater has had any opportunity to brief, and the

court has an opportunity to hear argument on, a motion to

dismiss for lack of jurisdiction.

The extraordinary significance of the remand order

below is magnified further by federal legislation enacted

after the Fourth Circuit’s mandate issued. On October 17,

2006, the President approved the National Defense

Authorization Act for Fiscal Year 2007, Pub. L. No. 109-

364, § 552, 120 Stat. 2083, which amends the Uniform Code

of Military Justice ("UCMJ"), 10 U.S.C. § 802(a)(10), 

clarifying that persons subject to the UCMJ include, "[i]n

time of declared war or a contingency operation, persons

serving with or accompanying an armed force in the field."

That amendment is an exercise of Congress’ authority to

"make Rules for the Government and Regulation of the land

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 24 of 44
9

and naval Forces[,]" U.S. Const. art. I, § 8, c1.14, and to

"provide ... for goveming such Part of [the Militia] as may

be employed in the Service of the United States," id. § 8, cl.

16, by consigning cases such as this to military jurisdiction,

including court-martials for "culpable negligence" or

manslaughter. 10 U.S.C. § 919(b). This reform of UCMJ

jurisdiction brings it into harmony with Total Force doctrine

-- a foreseeable exercise of plenary federal authority within

an exclusive federal domain.

By declining to review the trial court’s order of remand,

and declining to consider whether there were constitutional

and statutory bars to remand, the Fourth Circuit’s decision

confers upon state courts a role in regulating the choice of

weapons and other operational decisions made during war; in

administering the DBA program; and in imposing tort

liability for alleged violations subject to court-martial.

REASONS FOR GRANTING THE PETITION

I. THE COURT SHOULD RESOLVE AN

IMPORTANT AND RECURRING QUESTION OF

FEDERAL pRACTICE OVER WHICH THE

FEDERAL COURTS ARE IN DISARRAY.

1. This case presents an important and recurring

question of federal practice. The issue has occasioned two

statutory amendmentso 28 U.S.C. § 1447, a circuit conflict,

and confusion with respect to the basis and vitality of this

Court’s decisions establishing the derivative-jurisdiction

doctrine. Under that familiar doctrine, federal court

jurisdiction in removed actions is derivative of state court

jurisdiction. Lambert Run Coal Co. v. Baltimore & Ohio

R.R., 258 U.S. 377, 382 (1922) ("The jurisdiction of 

federal court on removal is, in a limited sense, a derivative

jurisdiction. If the state court lacks jurisdiction of the

subject-matter or of the parties, the federal court acquires

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 25 of 44
10

none."); Gen. Inv. Co. v. Lake Shore & Mich. S. Ry. Co., 260

U.S. 261,288 (1922) ("A want of jurisdiction in the state

court is not cured by the removal, but may be asserted after it

is consummated."); Arizona v. Manypenny, 451 U.S. 232,

243 n.17 (1981) (same). The result is that where the state

court lacked jurisdiction over a case that is removed to

federal court, the federal court must dismiss (rather than

remand) the case. See Franchise Tax Bd. of California v.

Constr. Laborers Vacation Trust for S. California, 463 U.S.

1, 24 n.27 (1983) ("[P]recedent involving other statutes

granting exclusive jurisdiction to the federal courts suggests

that, if such an action were not within the class of cases over

which state and federal courts haw,, concurrent jurisdiction,

the proper course for a federal district court to take after

removal would be to dismiss the case altogether, without

reaching the merits.") (citing Gen. lnv. Co., 260 U.S. at 287-

88 (1922), and Koppers Co. v. Con7 Cas. Co., 337 F.2d 499,

501-502 (8th Cir. 1964) (Blackmun, J.)); see also 14B

Charles Alan Wright, et al., FEDERAL PRACTICE &

PROCEDURE § 3722, at p.481 (3d ed. 1998) (under 

derivative-jurisdiction doctrine, "the district court would

have to dismiss the removed action since the state court’s

lack of subject matter jurisdiction prevented remand").

Here, the question whether the derivative-jurisdiction

doctrine retains its vitality arises in the specific setting of a

remand order permitting a state court to exercise war powers.

This is extraordinary. Under the regime mandated by the

court of appeals, a state court in Raleigh will be called upon

to regulate (through North Carolina tort law) combat

operations on a foreign battlefield occupied by the United

States armed forces, thereby permitting a state court to

decide whether persons killed under enemy fire in such an

operation are entitled to DBA benefits administered by the

U.S. Department of Labor. Indeed, the state trial court only

recently directed that discovery shouhJ proceed immediately,

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 26 of 44
11

by granting plaintiff’s request to conduct an out-of-state

deposition.

Surely that cannot be. The vehicle for achieving this

highly improbable -- and federalism-threatening -- result

was the district court’s declining to apply the derivativejurisdiction doctrine. Instead, the trial court concluded that it

lacked jurisdiction to determine whether Congress had

stripped the state courts of jurisdiction under the DBA. The

court of appeals likewise refused to apply the derivativejurisdiction doctrine, even though the panel found that the

district court erred in its jurisdictional analysis. The remand

order thus permits state courts to adjudicate whether the

DBA’s "Liability as exclusive" provision (42 U.S.C.

§ 1651(c)) applies, despite Congress’s clearly expressed

mandate that the U.S. Department of Labor is to be the

exclusive forum for resolving DBA coverage disputes in the

first instance (followed by federal-court review), and that

state courts have no jurisdiction over such disputes.

2. The derivative-jurisdiction doctrine arose in cases

similar to this one, namely, where federal law stripped state

courts of jurisdiction. In Lambert, for example, this Court

held that the district court was required to dismiss the action,

because Congress had stripped the state courts of jurisdiction

by statutorily committing to federal court all suits brought to

restrain or set aside orders of the Interstate Commerce

Commission. 258 U.S. at 382. Similarly, in General

Investment, this Court concluded that while the district court

would have had jurisdiction over the asserted Sherman and

Clayton Act claims had they been originally filed in federal

court, it properly dismissed the removed case because the

state court from which the case was removed had no

jurisdiction over claims committed by Congress exclusively

to the federal courts. 260 U.S. at 287-88.

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 27 of 44
12

3. Application of the derivative-jurisdiction doctrine by

the lower courts produced some paradoxical results. As set

forth by this Court, the derivative-jurisdiction doctrine

required federal courts to dismiss any case where the state

court lacked jurisdiction, even if the district court would

have had original jurisdiction over the suit. See 14B Charles

Alan Wright, et al., FEDERAL PRACTICE & PROCEDURE

§ 3721, at p.305 (3d ed. 1998); Dep’t of Revenue v. Inv. Fin.

Mgmt. Co., 831 F.2d 790, 792 (8th Cir. 1987) (noting that

the doctrine was "frequently criticized").

and Congress 2002 by sought enacting to eliminate and amending such inefficiencies 28 U.S.C. § 1441(0 in 1986 .

Section 1441 (f) now provides:

The court to which a civil action is removed

under this section is not precluded from

hearing and determining any claim in such

civil action because the State court from

which such civil action is removed did not

have jurisdiction over that claim.

28 U.S.C. § 1441(0. 2

2 Some courts have mistakenly stated that § 1441 (f) "abolishes

the derivative jurisdiction doctrine[.]" Ethridge v. Harbor House

Rest., 861 F.2d 1389, 1392 n.3 (gth Cir. 1988). By its plain

language, Section 1447(0 abolishes the rationale that district court

jurisdiction over removed cases is derivative of state-court

jurisdiction, but it says nothing about whether dismissal rather

than remand is required when the district court finds that both the

district court and the state court lack jurisdiction. Nothing in

Section 1441(0 purports to invite state courts to exercise

jurisdiction in derogation of other more specific federal statutes, or

in areas constitutionally reserved to the United States.

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 28 of 44
13

The amendments thus provide that a federal court is not

deprived of jurisdiction to hear a case merely because the

state court from which it was removed lacked jurisdiction.

The amendments do not resolve, however, the question

whether the derivative-jurisdiction doctrine continues to

apply where both the federal court and the state court lack

jurisdiction over a removed case. Nor do they resolve

whether this Court’s decisions in Lambert and General

Investment continue to prescribe dismissal rather than

remand in such circumstances because a remand would be

"futile." The circuit courts are deeply divided on this

question.

a. The Fifth and Ninth Circuits have held that, despite

Section 1447(c)’s provision that a case shall be remanded

where a district court lacks subject-matter jurisdiction, the

district court should dismiss an improperly removed case

where the state court also lacks jurisdiction. The reason:

because remand would be futile. See Bell v. City of Kellogg,

922 F.2d 1418, 1425 (9th Cir. 1991); Asarco, lnc. v.

Glenara, Ltd., 912 F.2d 784, 787 (5th Cir. 1990). As the

Ninth Circuit stated, "[w]e do not believe Congress intended

to ignore the interest of efficient use of judicial resources."

Bell, 922 F.2d at 1424-25. The Second Circuit also has

"indicated that [it] might be willing to entertain the futility

exception." Barbara v. NYSE, 99 F.3d 49, 56 n.4 (2d Cir.

1996); Mignogna v. Sair Aviation, Inc., 937 F.2d 37, 41 (2d

Cir. 1991) ("On the other hand, remand might be improper 

it would be futile, as it would be if the state court could not

exercise jurisdiction over [~laintiff’s] claim against

[defendant].") (citation omitted).

3 Indeed, the Fourth Circuit has held that dismissal rather than

remand is required where Congress did not intend to delegate to a state

court the application of an exclusive federal remedy. See Shives, 151

F.3d 164; see also Borneman v. United States, 213 F.3d 819 (4th Cir.

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 29 of 44
14

b. The Third, Fourth, Sixth, Seventh, and Eleventh

Circuits have reached the opposite conclusion. Those

circuits have held that 28 U.S.C. § 1447(c) provides 

exception for cases where the state court lacks jurisdiction.

See Bromwell v. Mich. Mut. lns. Cb., 115 F.3d 208, 213 (3d

Cir. 1997); Roach v. W. Va. Reg’l Jail & Corr. Facility

Auth., 74 F.3d 46, 49 (4th Cir. 19!)6); Coyne ex rel. Ohio v.

Am. Tobacco Co., 183 F.3d 488, 496-97 (6th Cir. 1999);

Schacht v. Wis. Dep’t of Corrs., 116 F.3d 1151, 1153 (7th

Cir. 1997); Smith v. Wis. Dep "t of Agric., 23 F.3d 1134, 1139

(7th Cir. 1994); Univ. of S. Ala. v. Am. Tobacco Co., 168

F.3d 405, 410 (1 lth Cir. 1999). These decisions, however,

do not consider whether the deriwative-jurisdiction doctrine

has continuing vitality. Nor do they consider whether

Section 1447(c) should be conslrued harmoniously with

other statutes that strip state courts of jurisdiction over

certain claims.

c. This Court has yet to adch’ess head on the discord

prevailing among the circuits on the issue. In International

Primate Protection League v. Administrators of Tulane

Educational Fund, 500 U.S. 72 (1991), the Court considered

whether the futility of a remand to a state court lacking

jurisdiction should be the basis for dismissal. But the Court

did not resolve the issue because it declined to find that

remand would be futile in the particular circumstances of

that case. 500 U.S. at 89 ("Similar uncertainties in the case

before us preclude a finding that a remand would be futile.");

see also 16 MOORE’ S F~IDERAL PRACTICE §

107.41[1][e][iii][E] (3d ed. 2006) (discussing the circuit split

and stating that International Primate "discussed the futility

doctrine but doles] not reject it"). The circuits embracing 

2000); MangoMv. Analytic Servs., lnc., 77 F.3d 1442 (4th Cir. 1996). 

the decision below, the court of appeals limited its earlier decisions to

their facts. App. 30a-32a.

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 30 of 44
15

futility exception to 28 U.S.C. § 1447(c), however, rely 

dicta in International Primate for support.

The cacophony is deep-seated. At long last, the Court

should revisit the derivative-jurisdiction doctrine. That

jurisprudential consideration is especially important where,

as here, the doctrine requires a district court to dismiss rather

than remand federal questions whose resolution is

constitutionally and statutorily reserved within the federal

domain. By doing so, this Court would resolve the question

left open in International Primate. In particular, this highly

sensitive case could well serve as the vehicle for confirming

that the derivative-jurisdiction doctrine retains its vitality

where both the state and federal courts lack jurisdiction over

a removed action.

4. The need for the Court to resolve this discord is

heightened by the differential treatment the courts have

given to cases removed under 28 U.S.C. § 1441 and those

removed under Section 1442. That difference in treatment

affected the disposition of this case below. See App. 23a n.8.

Section 1442 permits removal of actions brought against

the United States, federal officers, and federal contractors

like Blackwater. See Arizona v. Manypenny, 451 U.S. 232,

242 (1981) ("[T]his Court has held that the right of removal

is absolute for conduct performed under color of federal

office, and has insisted that the policy favoring removal

should not be frustrated by a narrow, grudging interpretation

of § 1442(a)(1)."); see also McMahon v. Presidential

Airways, lnc., 410 F. Supp. 2d 1189, 1195-1200 (M.D. Fla.

2006); Fisher v. Halliburton, 454 F. Supp. 2d 637, 639 (S.D.

Tex. 2006); Lane v. Halliburton, No. H-06-1971, 2006 WL

2583438, at *1 (S.D. Tex. Sept. 7, 2006); Smith v.

Halliburton, No. H-06-0462, 2006 WL 2521326, at *1 (S.D.

Tex. Aug. 30, 2006). Because Section 1441(f) applies only

to "cases removed under this section," 28 U.S.C. § 1441(f)

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 31 of 44
16

(emphasis added), courts have helcl that it does not apply 

removals under Section 1442 and that the derivativejurisdiction doctrine continues to apply to such removals.

See Smith v. Cromer, 159 F.3d 87:5, 879 (4th Cir. 1998) ("It

is clear that a federal court’s jurisdJiction upon removal under

28 U.S.C. § 1442(a)(1) is derivative of the state court

jurisdiction, and where the state court lacks jurisdiction over

the subject matter or the parties, the federal court acquires

none upon removal, even though in a like suit originally

brought in federal court, the court would have had

jurisdiction."); In re Elko County Grand Jury, 109 F.3d 554,

555 (9th Cir. 1997) ("[B]ecause this case was removed from

state court pursuant to § 1442, out’ jurisdiction is derivative

of the state court’s jurisdiction."); Edwards v. U.S. Dep "t of

Justice, 43 F.3d 312, 315 (7th Cir. 1994) ("When a case 

removed from a state court pursuant to 28 U.S.C. § 1442, the

district court’s basis for jurisdiction is only derivative of that

of the state court."). Thus, upon concluding that the state

tribunal lacked subject-matter jurisdiction in a Section 1442

removal, the trial court should disraiss (rather than remand)

when the state court has no jurisdiction. See, e.g., Cromer,

159 F.3d at 879, 883; In re Elko County, 109 F.3d at 555.

This is precisely the opposite of what the Third, Fourth,

Sixth, Seventh, and Eleventh Circuits have held is proper

with respect to Section 1441 removals. As discussed, these

courts have construed 28 U.S.C. § 1447(c) as mandating

remand, rather than dismissal, where a case is removed from

state court pursuant to Section 1441 and the state court

lacked subject-matter jurisdiction. This should not be.

There is no principled justification for the difference in

treatment between Section 1441 and Section 1442 removals.

Section 1441 (f) cannot provide that justification. Section

1441(0 does not, on its face, carve out an exception to

Section 1447(c). To the contral3,

, 

that provision merely

confirms that district courts have j~wisdiction to hear a case

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 32 of 44
17

that has been removed from a state court lacking jurisdiction.

Section 1441(f) is silent on whether district courts should

dismiss, rather than remand, such a case where the federal

court also lacks jurisdiction. Nothing in the statutory

language of Sections 1441 or 1442, or in any decision of this

Court, supports this differential treatment as a matter of

federal practice. 4

The instant case illustrates why there is utterly no basis

for drawing such an ephemeral distinction. Although it is a

federal contractor, Blackwater cited only Section 1441 in its

removal notice; it did not cite Section 1442. App. 23a n.8.

But this is neither here nor there. There is no doubt

whatsoever that removal would have been proper under

Section 1442. See McMahon, 410 F. Supp. 2d at 1195-1200.

But even assuming arguendo that Section 1442 did not

apply, merely by citing it, Blackwater would have ensured

that, under the derivative-jurisdiction doctrine, either the

district court would have dismissed the case or its failure to

do so would have been reviewable under Thermtron

Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976) 5

4 Indeed, the different treatment of the derivative-jurisdiction

doctrine under Section 1441 and Section 1442 results in

contradictory requirements if a case is removed under both Section

1441 and Section 1442, and the district court finds that both it and

the state court lack jurisdiction. The district court may have a duty

to remand such a case on the grounds that there is no futility

exception under Section 1447(c), yet have a duty to dismiss on the

grounds that the derivative-jurisdiction doctrine applies with full

force to Section 1442 removals.

5 In Thermtron, this Court recognized an exception from the

bar on appellate review in 28 U.S.C. § 1447(d) in cases where the

district court "exceeded [its] statutorily defined power." 423 U.S.

at 351; see also Borneman, 213 F.3d at 826 ("Accordingly, as

Thermtron instructs, § 1447(d) prohibits review of district courts’

determinations of whether jurisdictional statutes have been

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 33 of 44
18

Because Blackwater cited only Section 1441, the court of

appeals did not consider whether remand was appropriate

under Section 1442 jurisprudence. App. 23a n.8.

5. Absent this Court’s review, the result of the Fourth

Circuit’s decision is that a state court in Wake County, North

Carolina will decide whether respondents’ claims fall within

the scope of the DBA’s coverage. As the Fourth Circuit

previously has held, this issue :is "exclusively a federal

question which Congress never intended for state courts to

resolve." Shives, 151 F.3d at 167 (citing 33 U.S.C. § 921

which the DBA extends overseas through 42 U.S.C. §

1651(a)). So too, the Fourth Circuit’s decision will allow 

state court to decide whether Blackwater’s actions when

accompanying U.S. armed forces during military operations,

see 10 U.S.C. § 802, are exclusively under the command and

control of the United States or are subject to the conflicting

tort laws of fifty States. Moreover, in light of Congress’

recent amendment to the UCMJ, 120 Stat. 2083 (amending

10 U.S.C. § 802(a)(10)), the decision below places before 

state court the decision whether to exercise jurisdiction to

impose tort liability for court-martial offenses in the field.

This is so, because even though the district court

recognized that state courts lack joxisdiction over issues of

DBA coverage, App. 47a, the Uial court declared itself

powerless to uphold the DBA; the court of appeals then

deemed that conclusion erroneous but unreviewable. This

profoundly destabilizing result should not be allowed to

stand. Indeed, the state court lacked subject-matter

jurisdiction not only based on Congress’s clearly expressed

intent in the DBA, which directs the U.S. Department of

Labor to resolve questions of DBA coverage during military

satisfied, not review of determinations where district courts exceed

their jurisdictional authority.").

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 34 of 44
19

operations (followed by federal-court review), but also based

on the political-question doctrine and principles of

federalism: "The complex, subtle, and professional

decisions as to the composition, training, equipping, and

control of a military force are essentially professional

military judgments, subject always to civilian control of the

Legislative and Executive branches." Gilligan v. Morgan,

413 U.S. 1, 10 (1973) (emphasis added); see Tarble’s Case,

80 U.S. 397, 408 (1872) (holding that a state court lacks

jurisdiction because U.S. military forces operate "without

question from any State authority").

This Court should resolve the split in the circuits over the

applicability of the derivative-jurisdiction doctrine and

whether it continues to mandate dismissal of a case removed

under Section 1441 where both the federal and state court

lack jurisdiction. This case presents a particularly

compelling vehicle for doing so. It involves the

constitutional exclusivity of federal command and control

over the field of foreign military operations, as well as the

statutory exclusivity of federal liability for contractor war

casualties sustained in foreign theaters of battle.

II. The Court Of Appeals Has Jurisdiction To Review A

Remand Order Notwithstanding 28 U.S.C. § 1447(d)

When The Remand Order Would Circumvent

Federal Statutory And Federal Constitutional Designs

To Preclude State Court Jurisdiction.

1. This petition presents a question similar to one

pending before this Court in Osborn v. Haley, No. 05-593.

There, the Court directed the parties to brief the following

question: "Whether the court of appeals had jurisdiction to

review the district court’s remand order, notwithstanding 28

U.S.C. § 1447(d)." Osborn v. Haley, 126 S. Ct. 2017 (2006).

A question presented in Osborn is whether an exception

exists to § 1447(d)’s bar on appellate review for cases arising

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 35 of 44
20

under the Westfall Act. That statute creates an exclusive

federal remedy against the United States and,

correspondingly, authorizes removal of cases in which the

Attorney General certifies that the employee is acting within

the scope of his employment. 28 U.S.C. § 2679.6 A similar

question is presented by the decision below: whether an

exception exists to § 1447(d)’s bin" on appellate review for

cases raising claims within the exclusive province of the

federal government. The Fourth’s Circuit decision ignores

the DBA’s "Liability as exclusive" provision (42 U.S.C.

§ 1651 (c)), and it allows respondents to proceed under statetort law against American military contractors, despite

Blackwater’s claim that such an action unconstitutionally

intrudes on the exclusive authority of the federal government

to conduct military operations abroad.

2. Nothing in the text or legislative history of Section

1447(d) suggests that Congress intended to’ preclude

appellate review of a remand order that relegates to a state

court the resolution of respondents’ constitutionally-suspect

tort claims. To the contrary, Congress expressed a clear

intent in the DBA that such tort lawsuits not be justiciable in

a state court; rather, the "liability of a[] ... contractor ...

under this chapter shall be exclusive and in place of all other

liability of such ... contractor ... to his employees. 42

6 In Osborn, the district court remanded astate tort claim

brought against an employee of an organization that contracted

with the United States Forest Service See Osborn v. Haley, 422

F.3d 359, 361 (6th Cir. 2005). The Almrney General had certified

that the employee was acting within tile scope of his employment,

and thus argued that the state tort action should be deemed an

action brought against the United States. The district court,

however, rejected the Attorney General’s certification and granted

plaintiff’s motion to remand for lack of jurisdiction, ld. The Sixth

Circuit reversed both the certification ruling and the remand order,

holding that the Westfall Act foreclosed remand. Id. at 364.

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 36 of 44
21

U.S.C. § 1651 (c) (emphasis added). Section 1447(d) 

not be construed in derogation of Congress’ mandate, which

displaces state-court jurisdiction over cases such as

respondents’ and thus ensures that state courts do not

adjudicate the constitutional questions, including questions

of federalism and separation of powers, that are raised by

such lawsuits brought in contravention of the DBA.

The DBA is Congress’ response to the question of tort

liability arising from dangerous deployments by contractors

in support of U.S. military operations (and other federal

activities) outside the United States. Congress has legislated

a solution consisting of extending the Longshore and Harbor

Workers’ Compensation Act ("LHWCA") overseas, but has

foreclosed an election of remedies available under the

LHWCA. The LHWCA is an exclusive remedy but for the

concurrent availability of state workers compensation

benefits. The LHWCA’s exclusivity provision "shall apply"

under the DBA, see 42 U.S.C. § 1651(a), except that the

DBA also bars the LHWCA’s altemative state workers

compensation remedy: 42 U.S.C. § 1651(c) (DBA benefits

shall be exclusive of any other liability "under the

workmen’s compensation law of any State"). Thus,

Congress gives effect to the constitutional commitment of

foreign affairs and war powers to the United States by

expressly providing in the DBA that the States’ concurrent

remedy under the LHWCA stops at the water’s edge.

The DBA is therefore a very specific statutory expression

of Congress’ intent to exclude the states from any

interference in the relationship between contractors and

persons working for them to advance federal interests

overseas. See House Report 1070, p. 4, 7 (1941); Senate

Rep. No. 92-1175, p. 4 (1972). And that statutory intent 

immeasurably fortified by the fact that it rests on the

constitutional allocation of foreign affairs and war powers to

the United States.

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22

3. This Court should grant certiorari and reverse

because the Fourth Circuit’s refusal to recognize an

exception to Section 1447(d) deepens a circuit split 

whether a statutory bar to appellate review should be

construed to preclude a federal[ court of appeals from

reviewing a constitutional question, such as the political

question and separation of powers arguments raised by

Blackwater below as requiring dismissal rather than remand

of respondents’ state tort lawsuit.

a. Nothing in the text or legislative history of Section

1447(d) suggests that Congress intended to preclude

appellate review of remand orders that would foreclose

federal review of constitutional questions. Cf Johnson v.

Robison, 415 U.S. 361, 365-68 (1974) C[C]ontention that

[38 U.S.C.] § 211(a) [’which prohibits judicial review 

decisions of the Veterans’ Adminis.trator’] bars federal courts

from deciding constitutionality of veterans’ benefits

legislation ... would, of course, raise serious questions

concerning the constitutionality of § 211 (a), and in such case

’it is a cardinal principle that this Court will first ascertain

whether a construction of the statute is fairly possible by

which the [constitutional] question[s] may be avoided.’

Plainly, no explicit provision of § 211(a) bars judicial

consideration of appellee’s constitutional claims .... Nor

does the legislative history ... demonstrate a congressional

intention to bar judicial review even of constitutional

questions." (footnote and internal citation omitted)).

This lack of any specific congressional intent to preclude

appellate review of constitutional questions should trigger

the "cardinal principle"-based rule of construction set forth

in Johnson v. Robison and followed as a rule by eight other

courts of appeals, particularly where Congress has legislated

that an employer’s liability under the DBA "shall be

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 38 of 44
23

exclusive and in place of all other liability," 42 U.S.C.

§ 7 1651(c).

b. The Fourth Circuit’s refusal to recognize a

constitutional-questions exception to Section 1447(d) thus

creates a conflict with the decisions of eight other courts of

appeals. The Ninth Circuit is the only other court of appeals

in accord with the Fourth Circuit in "declin[ing] to graft a

new exception [for constitutional questions] onto the already

significantly burdened text of § 1447(d)." App. 27a; see also

Cedano-Viera v. Ashcrofi, 324 F.3d 1062, 1067 (9th Cir.

2003) ("The government argues that Calcano-Martinez v.

INS, 533 U.S. 348 [] (2001), and Webster v. Doe, 486 U.S.

592, 603 [] (1988), give us license to resolve [’constitutional

claims’]. However, we have already held that an appellate

court does not have jurisdiction to consider even substantial

constitutional claims regarding removal orders covered by

INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).") 

prior Ninth Circuit opinions).

Eight other circuits have held that a statutory bar to

review does not preclude a federal court from addressing a

constitutional claim, absent a clear statement of

Congressional intent. Those circuits have followed this

Court’s admonition in Johnson v. Robison, supra, that any

construction of a statutory bar to judicial review that would

preclude review of "constitutional questions" would "raise

serious questions concerning the constitutionality of [the

statutory bar itself]," 415 U.S. at 366. See Doe v. Cheney,

885 F.2d 898, 909 (D.C. Cir. 1989) ("In general,

constitutional claims are judicially reviewable unless

7 Indeed, as a matter of federalism, see Tarble’s Case, 80 U.S. at 408,

and as a matter of the political-question doctrine, see Gilligan, 413 U.S.

at 10, the district court’s remand order raises significant constitutional

questions because it imposes on U.S. military contractors a risk of

exposure to a patchwork quilt of state tort regulation that impedes foreign

deployment ofthe contractor component of the "Total Force."

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 39 of 44
24

Congress clearly expresses its intent to preclude review.");

McBryde v. Comm. to Review Circuit Council Conduct, 264

F.3d 52, 59 (D.C. Cir. 2001) ("When the Constitution 

invoked, a claim of preclusion :faces an especially high

hurdle."); Paluca v. Sec’y of Labor, 813 F.2d 524, 526 (lst

Cir. 1987); S. Windsor Convalescent Home v. Mathews, 541

F.2d 910, 914 (2d Cir. 1976) ("[T]he effect of precluding

federal jurisdiction over constitutional questions ... would be

at odds with the well established principle that a court will

not construe a statute to restrict access to judicial review

unless Congress manifests its intent to do so by ’clear and

convincing evidence.’"); Aliota v. ,Graham, 984 F.2d 1350,

1357 (3d Cir. 1993) (recognizing the "jurisprudential

concerns associated with the inability to review a

constitutional decision"); Humphries v. Various Fed. USINS

Employees, 164 F.3d 936, 945 n.9 (5th Cir. 1999) ("’serious

constitutional questions’ ... would arise if a federal statute

were construed to deny any judicial forum for a colorable

constitutional claim."); Chelsea Cmty. Hosp. v. Mich. Blue

Cross Ass’n, 630 F.2d 1131, 1135 (6th Cir. 1980) ("[I]t is 

’cardinal principle’ that we should seek statutory

constructions which avoid constitutional doubts, Johnson v.

Robison .... "); Czerkies v. Dep’t of Labor, 73 F.3d 1435,

1442-43 (7th Cir. 1996) (en banc) (Based on 

"presumption against denying all judicial remedies for

violations of the Constitution ... the district court had

jurisdiction to consider ... constitutional claim [not] barred

by 5 U.S.C. § 8128(b)."); Nyeholt v. Secretary of Veterans

Affairs, 298 F.3d 1350, 1353-54 (]Fed. Cir. 2002) (citing

Johnson).

c. Any of the eight circuits that have spoken on the

issue would have recognized that Blackwater’s constitutional

claims deserved careful appellate review, notwithstanding

Section 1447(d). Cf Thermtron Prods., 423 U.S. at 351

("Because the District Judge remanded a properly removed

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 40 of 44
25

case on grounds that he had no authority to consider, he

exceeded his statutorily defined power; and issuance of the

writ of mandamus was not barred by § 1447(d)."). 

district court’s remand order delegates to a state court the

duty to determine nonjusticiable political questions that are

within the exclusive province of the federal government; it

thus allows a state tort lawsuit to proceed in violation of the

fundamental constitutional delegation of foreign affairs and

war powers to the political branches of the federal

govemment. This cannot be -- a state court simply cannot

regulate the order of battle. The Fourth Circuit nonetheless

refused to review the remand order. App. 26a. But nothing

in Section 1447(d) purports to strip appellate courts 

jurisdiction to review orders that remand cases raising

significant constitutional questions; there is certainly no clear

statement of Congressional intent to do so. To the contrary,

just as in Osborn, Congress has made clear its intent that

state courts have no role to play in adjudicating claims that

arise in the context of military action, including those of

respondents.

4. Whether the Fourth Circuit properly declined to

review the district court’s remand order is of particular

importance now, when respondents and others supporting the

United States Government’s efforts overseas are depending

upon the "Liability as exclusive" provision of the DBA and

at a time when the nation is at war. See Tarble’s Case, 80

U.S. at 408; see also Gilligan, 413 U.S. at 10 ("The complex,

subtle, and professional decisions as to the composition,

training, equipping, and control of a military force are

essentially professional military judgments, subject always to

civilian control of the Legislative and Executive Branches.").

In the past five months, five tort lawsuits against battlefield

contractors have been dismissed as nonjusticiable by federal

district courts based on the political-question doctrine. See,

e.g., Fisher v. Halliburton, Inc., 454 F. Supp. 2d 637, 639-

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 41 of 44
26

45 (S.D. Tex. 2006); Whitaker v. Kellogg Brown & Root,

Inc., 444 F. Supp. 2d. 1277, 1279-82 (M.D. Ga. 2006);

Smith-Idol v. Halliburton, No. H-06-1168, 2006 WL

2927685, at "1-2 (S.D. Tex. Oct. 11, 2006); Woodson v.

Halliburton Corp., No. H-06-2107, 2006 U.S. Dist. LEXIS

70311, at "1-2 (S.D. Yex. Sept. 28, 2006); Smith v.

Halliburton Co., No. H-06-0462, 2006 WL 2521326, at *2-7

(S.D. Yex. Aug. 30, 2006).

In view of the manifest national importance of the

constitutional issues at stake, this Court should grant

certiorari to resolve the split in the circuits over whether

there is a constitutional-questions exception to a statutory bar

to judicial review, absent a clear statement of Congressional

intent to preclude such review.

Case 2:05-cv-06020-PBT Document 55-20 Filed 07/27/2007 Page 42 of 44
27

CONCLUSION

For the foregoing reasons, the petition should be granted.

In the alternative, this Court should invite the views of the

Solicitor General.

Respectfully submitted,

MICHAEL P. SOCARRAS

M. MILLER BAKER

MICHAEL S. NADEL

MCDERMOTT WILL & EMERY LLP

600 Thirteenth Street, N.W.

Washington, DC 20005

(202) 756-8000

KENNETH W. STARR

Counsel of Record

RICK RICHMOND

KIRKLAND & ELLIS LLP

777 South Figueroa Street

Los Angeles, CA 90017

(213) 680-8400

JOSEPH E. SCHMITZ

THE PRINCE GROUP

1650 Tysons Boulevard, Suite 800

McLean, VA 22102

(703) 663-6997

SUSAN E. ENGEL  ̄

JENNIFER S. ATKINS

KIRKLAND & ELLIS LLP

655 Fifteenth Street, N.W.

Washington, DC 20005

(202) 879-5000

KIRK G. WARNER

SMITH, ANDERSON, BLOUNT,

DORSETT, MITCHELL & JERNIGAN

P.O. Box 2611

Raleigh, NC 27602

(919) 821-1220

Attorneys for Petitioners Blackwater Security Consulting LLC,

and Blackwater Lodge and Training Center, Inc.

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