IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20441

KRISTEN MARTIN; DONALD TOLFREE, deceased,

Plaintiffs - Appellees

v.

HALLIBURTON; KBR INC; KELLOGG BROWN & ROOT INC; KELLOGG

BROWN & ROOT SERVICES INC; SERVICE EMPLOYEES

INTERNATIONAL INC,

Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Texas

Before KING, JOLLY, and STEWART, Circuit Judges.

KING, Circuit Judge:

The opinion in this case filed on March 23, 2010, Martin v. Halliburton,

601 F.3d 381 (5th Cir. 2010), is amended by the addition thereto of a new

paragraph II.E, and the opinion, as amended, reads as follows:

Defendants–appellants, affiliated governmental contractors providing

logistical support to the United States Army in Iraq, appeal the denial of their

Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.

Plaintiffs–appellees move to dismiss the appeal for lack of subject matter

jurisdiction. We lack subject matter jurisdiction and must dismiss the appeal.

United States Court of Appeals

Fifth Circuit

F I L E D

September 7, 2010

Lyle W. Cayce

Clerk

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I. BACKGROUND

A. Factual Background

This case reaches us still in its infancy, and the record is accordingly

underdeveloped. The facts that follow are drawn primarily from the complaint

below and from attachments to motions filed in the district court.

Defendants are affiliated governmental contractors providing logistical

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support to the United States military in Iraq. Plaintiff–appellee Kristen Martin

is the adult daughter of Donald Tolfree, a civilian employed by Defendants.

Tolfree was recruited by Defendants in December 2006 to drive trucks in convoys

in Iraq. Martin alleges that Tolfree relied on Defendants’ assurances that he

would be 100% safe and protected by the United States military during his

employment in Iraq. Tolfree arrived in Iraq in January 2007, where he was

assigned to Logistics Support Area (LSA) Anaconda. In February 2007, he was

asked if he would volunteer to drive a “chase truck” in an upcoming convoy.

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Tolfree agreed to do so.

Martin’s complaint alleges that Defendants acted negligently in executing

the convoy operation. According to Martin’s complaint, there was no written

policy regarding the use of chase trucks, and Tolfree—who had been onsite for

less than one month—was not told of any unwritten policies. Tolfree believed

that his duty was to follow the convoy from its departure point within LSA

Anaconda to the base’s north gate, a distance of about ten miles. He believed

that he would be contacted by radio and instructed to turn around at the

Specifically, they are Halliburton; KBR, Inc.; Kellogg Brown & Root, Inc.; Kellogg 1

Brown & Root Services, Inc.; and Service Employees International, Inc. The complaint filed

also listed ten individual defendants as “John Doe.” John Doe 1 is alleged to have been the

“convoy commander,” “an employee of Defendants acting in a supervisory/command capacity”

over the decedent during the convoy operation at issue in this case. John Doe 1 is not a party

to this appeal. For simplicity, we refer to appellants collectively as “Defendants.”

 A “chase truck” is a semi-truck without an attached trailer that acts as a backup in 2

the event that a truck with an attached trailer becomes disabled during the convoy.

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appropriate time. Tolfree’s chase truck was equipped with a non-military radio,

and a radio dead zone prevents non-military radio communications around the

perimeter of LSA Anaconda. As a result, Tolfree followed the convoy past the

north gate, at which point Defendants radioed for “the extras” to turn around.

Tolfree did so, passing at least two vehicles at the rear of the convoy. The

drivers of those vehicles confirmed with the convoy commander that the extra

trucks were no longer to be part of the convoy. The convoy commander did not

contact the sentry posted at the north gate about Tolfree’s return.

Military protocol requires trucks such as the one Tolfree was driving to be

accompanied by gun trucks during a return to camp. The sentry posted at the

north gate of LSA Anaconda saw Tolfree’s chase truck returning and, noting that

none of Defendants’ trucks was scheduled to enter the camp, applied protocol for

dealing with unscheduled and unescorted vehicles attempting to enter LSA

Anaconda. Tolfree died instantly when a gunner fired one hundred .50-caliber

rounds into the chase truck.

Martin alleges that a representative of Defendants falsely informed her

that Tolfree had been killed by an insurgent’s roadside bomb rather than by

friendly fire. Her complaint alleges that Defendants continued to misrepresent

the circumstances of Tolfree’s death as late as a year after the fact.

B. The Logistics Civil Augmentation Program

Defendants’ involvement in convoy operations in Iraq occurs under the

auspices of the Logistics Civil Augmentation Program (LOGCAP). In 1985, the

United States Army issued Army Regulation 700–137, which initiated

LOGCAP. Army Reg. 700–137, at 1–1 (Dec. 16, 1985). The LOGCAP

regulations describe LOGCAP’s purpose as “to preplan for the use of civilian

contractors to perform selected services in wartime to augment Army forces.

Utilization of civilian contractors in a theater of operation will release military

units for other missions or fill shortfalls.” Id. The LOGCAP regulations

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expressly state that “[c]ontractors will not be used to perform inherently

governmental functions.” Id. at 3–2(d)(8). The term “governmental function” is

defined as “[a] function which is so intimately related to the public interest as

to mandate performance by Government employees. These functions include

those activities which require either the exercise of discretion in applying

Government authority or the use of value judgements in making decisions for

the Government.” Id. at Glossary § I.

On December 14, 2001, under the authority of the LOGCAP Program, the

Army awarded Contract No. DAAA09-02-D-0007 (the “LOGCAP III Contract”)

to Brown & Root Services, Inc., a division of Kellogg Brown & Root. The

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LOGCAP III Contract was designated a “rated order” contract, making its

performance mandatory under the Defense Production Act of 1950 (DPA), 50

U.S.C. app. §§ 2061–2171. The willful failure to perform a rated order contract

carries a criminal penalty. See id. §§ 2071(a) & 2073. Defendants aver that the

logistics and transportation services in which Tolfree was engaged were

performed pursuant to Task Order 139, issued by the Army in August 2006.

Only the first two pages of the LOGCAP III Contract are in the record, and Task

Order 139 is completely absent. Martin alleges (and Defendants admit in their

answer) that there was a novation of the LOGCAP III Contract in 2003 that

transferred contractual duties from Kellogg Brown & Root to Kellogg Brown &

Root Services. The two pages from the LOGCAP III Contract that are in the

record bear a date stamp of December 14, 2001, which precedes the novation by

a minimum of one year.

Some of Martin’s allegations and the parties’ arguments rely on the relationship of

3

Defendants to each other and to the Government. Our resolution here does not require us to

unravel those relationships, a task that would be challenging given the state of the record

before us.

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C. Procedural History

Martin filed a diversity suit in district court on February 5, 2009, asserting

state law tort claims against Defendants for their actions in recruiting Tolfree,

executing the convoy operation, and misrepresenting the cause of his death. On

4

April 3, 2009, Defendants moved to dismiss for lack of subject matter jurisdiction

under Rule 12(b)(1) of the Federal Rules of Civil Procedure, urging several

distinct theories: (1) official immunity; (2) derivative sovereign immunity; (3)

immunity under the DPA; and (4) preemption of state law under the combatant

activities exception to the Federal Tort Claims Act (FTCA). Several exhibits

were attached to their motion, including two Army regulations, an Army field

manual, and two pages of the LOGCAP III Contract. The district court denied

5

the motion without opinion or explanation on June 8, 2009. Defendants then

6

filed an answer and appealed the district court’s order. The record does not

reflect that Defendants requested that the district court either explain its

The claims are for negligence, wrongful death, fraud and fraud in the inducement, 4

intentional infliction of emotional distress, survivorship, and civil conspiracy to commit fraud.

Martin also seeks punitive damages for fraud, malice, and gross negligence.

We confess to being somewhat perplexed by Defendants’ decisiontomove for dismissal 5

under Rule 12(b)(1) without at least alternatively arguing that the case should be dismissed

on the same grounds under Rule 12(b)(6) for failure to state a claim on which relief can be

granted. The proper characterization of a motion to dismiss is not without legal consequences. 

“[T]he standard of Rule 12(b)(1) . . . while similar to the standard of Rule 12(b)(6), permits the

court to consider a broader range of materials in resolving the motion.” Williams v. Wynne,

533 F.3d 360, 365 n.2 (5th Cir. 2008) (citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th

Cir. 1986)). However, in our analysis of this appeal, we need not determine the proper

characterization of the motion or the propriety of many of the attached documents. This is

because our consideration of the LOGCAP III Contract excerpt is permitted by the stricter

standard of Rule 12(b)(6), see Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99

(5th Cir. 2000), as is our discussion of the LOGCAP regulations, see Poindexter v. United

States, 777 F.2d 231, 236 (5th Cir. 1985); see also Lane v. Halliburton, 529 F.3d 548, 554 (5th

Cir. 2008) (describing the LOGCAP regulations). The remaining attached documents are

unnecessary to our disposition, and we accordingly do not address whether they are properly

considered.

As a rule, “[d]istrict courts should state for the record the reasons for denying 6

immunity.” Morin v. Caire, 77 F.3d 116, 119 n.3 (5th Cir. 1996).

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decision or certify the decision for interlocutory appeal under 28 U.S.C.

§ 1292(b). Before any briefs had been filed, Martin filed a motion before this

7

court to dismiss the appeal as interlocutory; that motion was carried with the

case. The district court ordered further proceedings stayed pending the outcome

of this appeal.

II. DISCUSSION

Before we can proceed to the merits of this appeal, we must examine

whether we have jurisdiction to do so. We have jurisdiction to determine our

own jurisdiction. Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 169

(5th Cir. 2009) (citing Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Tex.,

Inc., 481 F.3d 265, 268 (5th Cir. 2007)). As the appellants, Defendants bear the

burden of establishing our appellate jurisdiction. Acoustic Sys., Inc. v. Wenger

Corp., 207 F.3d 287, 289 (5th Cir. 2000).

Our appellate jurisdiction is ordinarily limited to “final decisions of the

district courts of the United States.” 28 U.S.C. § 1291. “For purposes of § 1291,

a final judgment is normally deemed not to have occurred until there has been

a decision by the District Court that ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.” Henry, 566 F.3d at 171

(alterations and internal quotation marks omitted) (quoting Midland Asphalt

Corp. v. United States, 489 U.S. 794, 798 (1989)). In addition to our jurisdiction

 Section 1292(b) provides: 7

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 of 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. The Court of Appeals which would have jurisdiction

of an appeal of such action may thereupon, in its discretion, permit an appeal

to be taken from such order, if application is made to it within ten days after the

entry of the order . . . .

28 U.S.C. § 1292(b).

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over appeals from final decisions, we have statutory jurisdiction over appeals

from certain interlocutory orders and decrees under § 1292(a), but neither party

urges the application of that provision. Prospective appellants who seek to

appeal interlocutory orders that do not qualify under § 1292(a) are ordinarily

limited to the certification procedure of § 1292(b); as noted above, that procedure

was not followed here. Thus, our jurisdiction must exist, if at all, under § 1291.

Defendants urge that the collateral order doctrine recognized in Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), supports jurisdiction.

8

“The collateral order doctrine is best understood not as an exception to the ‘final

decision’ rule laid down by Congress in § 1291, but as a ‘practical construction’

of it.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994)

(quoting Cohen, 337 U.S. at 546). “[T]he collateral order doctrine accommodates

a ‘small class’ of rulings, not concluding the litigation, but conclusively resolving

‘claims of right separable from, and collateral to, rights asserted in the action.’”

Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting Behrens v. Pelletier, 516 U.S

299, 305 (1996)). “The claims are ‘too important to be denied review and too

independent of the cause itself to require that appellate consideration be

deferred until the whole case is adjudicated.’” Id. (quoting Cohen, 337 U.S. at

546). The Supreme Court, in describing the requirements of the collateral order

doctrine, has emphasized the doctrine’s limited application:

The requirements for collateral order appeal have been

distilled down to three conditions: that an order [1] conclusively

determine the disputed question, [2] resolve an important issue

completely separate from the merits of the action, and [3] be

effectively unreviewable on appeal from a final judgment. The

conditions are stringent, and unless they are kept so, the underlying

doctrine will overpower the substantial finality interests § 1291 is

meant to further: judicial efficiency, for example, and the sensible

Indeed, Defendants’ notice of appeal states that it “is based upon the collateral order 8

doctrine” and does not refer to any other basis for appellate jurisdiction.

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policy of avoid[ing] the obstruction to just claims that would come

from permitting the harassment and cost of a succession of separate

appeals from the various rulings to which a litigation may give rise.

Accordingly, we have not mentioned applying the collateral

order doctrine recently without emphasizing its modest scope. And

we have meant what we have said; although the Court has been

asked many times to expand the small class of collaterally

appealable orders, we have instead kept it narrow and selective in

its membership.

Will, 546 U.S. at 349–50 (citations and internal quotation marks omitted;

alterations in original); see also Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599,

605 (2009) (“In applying Cohen’s collateral order doctrine, we have stressed that

it must ‘never be allowed to swallow the general rule that a party is entitled to

a single appeal, to be deferred until final judgment has been entered.’” (quoting

Digital Equip., 511 U.S. at 868)).

The universe of orders from which collateral order review may be taken is

relatively limited. The Supreme Court has identified a handful of orders that

9

are collaterally reviewable, and we have allowed such review for others.

10 11

We note that the denial of a motion to dismiss under Rule 12 may be immediately

9

appealable under the collateral order doctrine in appropriate cases. See Behrens, 516 U.S. at

307 (“Mitchell [v. Forsyth, 472 U.S. 511 (1985),] clearly establishes that an order rejecting the

defense of qualified immunity at either the dismissal stage or the summary judgment stage

is a ‘final’ judgment subject to immediate appeal.”).

These are orders denying: absolute immunity, Nixon v. Fitzgerald, 457 U.S. 731, 742 10

(1982), qualified immunity under 42 U.S.C. § 1983, Mitchell, 472 U.S. at 530, a state’s claim

of Eleventh Amendment immunity, P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506

U.S. 139, 144–45 (1993), a claim of Speech or Debate Clause immunity, Helstoski v. Meanor,

442 U.S. 500, 508 (1979), and a criminal defendant’s claim of double jeopardy, Abney v. United

States, 431 U.S. 651, 660 (1977).

Our cases have extended collateral order review to denials of: a defamation

11

defendant’s invocation of an anti-SLAPP statute, Henry, 566 F.3d at 181, immunity under

Texas law for communications made during judicial, quasi-judicial, or legislative proceedings,

Shanks v. AlliedSignal, Inc., 169 F.3d 988, 992 (5th Cir. 1999), Foreign Sovereign Immunities

Act immunity, Stena Rederi AB v. Comision de Contratos del Comite Ejecutivo Gen., 923 F.2d

380, 385 (5th Cir. 1991), and qualified immunity under Title VII, Brown v. Tex. A & M Univ.,

804 F.2d 327, 332 (5th Cir. 1986).

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Defendants have seized upon the fact that such orders typically involve “denials

of various forms of immunity.” Henry, 566 F.3d at 177. However, the forms of

immunity that may be vindicated on appeal at an early stage through collateral

order review are those that involve “not simply a right to prevail, but a right not

to be tried.” Id. Thus, the relevant inquiry in determining whether an

“immunity” is subject to immediate appeal under the collateral order doctrine

is whether the asserted immunity is from suit or merely from liability. Van

Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988) (“The critical question . . . is

whether ‘the essence’ of the claimed right is a right not to stand trial.” (quoting

Mitchell, 472 U.S. at 525)); Henry, 566 F.3d at 178 (“‘There is a crucial

distinction between a right not to be tried and a right whose remedy requires the

dismissal of charges. A right not to be tried in the sense relevant to the Cohen

exception rests upon an explicit statutory or constitutional guarantee that trial

will not occur.’” (quoting Midland Asphalt, 489 U.S. at 801)). Accordingly, the

Supreme Court has warned against generalizing from orders that are recognized

as immediately appealable under the collateral order doctrine because almost

any right can be characterized as a right not to be confronted with the burdens

of trial. Will, 546 U.S. at 350–51; Swint v. Chambers County Comm’n, 514 U.S.

35, 43 (1995). Instead, we proceed on a categorical basis, looking only at

whether “the class of claims, taken as a whole, can be vindicated by other

means” than immediate appeal. Mohawk Indus., 130 S. Ct. at 605.

We must therefore examine each of the rights Defendants asserted before

the district court and now seek to appeal to determine whether the district

court’s denial of that claimed right is a collateral order that Defendants may

immediately appeal. In undertaking this jurisdictional analysis, we do not

explore the underlying merits of any of the claims Defendants press on appeal.

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A. Official Immunity

Defendants first claim that we have jurisdiction to review the denial of

their official immunity defense under Westfall v. Erwin, 484 U.S. 292 (1988). In

Houston Community Hospital, we considered whether such a denial constituted

a collateral order. We concluded that “[w]hile a denial of official immunity is an

appealable order, the claim of immunity must be ‘substantial’ to justify an

appellate court’s collateral order review.” Houston Cmty. Hosp., 481 F.3d at

268–69 (footnote omitted). To be “substantial,” such a claim must be more than

“merely ‘colorable.’” Id. at 269 n.11.

As originally articulated, the Westfall defense provided that “absolute

immunity from state-law tort actions should be available only when the conduct

of federal officials is within the scope of their official duties and the conduct is

discretionary in nature.” Westfall, 484 U.S. at 297–98. Shortly after the

Westfall decision, Congress enacted the Federal Employees Liability Reform and

Tort Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563 (1988), one

effect of which was to eliminate the requirement that the acts of federal officials

be discretionary. See 28 U.S.C. § 2679(d)(1); Houston Cmty. Hosp., 481 F.3d at

269. However, non-governmental entities—such as Defendants—that seek the

protection afforded by the Westfall defense remain subject to the requirement

that their acts be discretionary. Houston Cmty. Hosp., 481 F.3d at 269. “[B]y

‘discretionary,’ it is evident in context that the [Supreme] Court meant activities

that involve ‘policy-making work for the United States Government.’” NF

Indus., Inc. v. Exp.–Imp. Bank of U.S., 846 F.2d 998, 1001 (5th Cir. 1988) (per

curiam) (quoting Westfall, 484 U.S. at 299). Therefore, to establish our appellate

jurisdiction over the denial of their asserted Westfall defense, Defendants must

make a substantial showing that their allegedly tortious conduct was within the

scope of their official duties and was discretionary in the sense that it involved

governmental policy-making activities.

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We cannot conclude, based on the limited record before us, that

Defendants have made a substantial showing of entitlement to official immunity

under Westfall. As discussed above, the LOGCAP regulations expressly provide

that “[c]ontractors will not be used to perform inherently governmental

functions.” Army Reg. 700–137, at 3–2(d)(8). The term “governmental function”

is defined as “[a] function which is so intimately related to the public interest as

to mandate performance by Government employees. These functions include

those activities which require either the exercise of discretion in applying

Government authority or the use of value judgements in making decisions for

the Government.” Id. at Glossary § I (emphases added). This language

expressly precludes Defendants from engaging in discretionary conduct, a

prerequisite for entitlement to the Westfall defense. Defendants cite several

12

actions that they performed—allowing Tolfree’s truck to return to LSA Anaconda

without coordinating its return and training and supervising employees—but

these do not rise to the level of being “activities that involve ‘policy-making work

for the United States Government.’” NF Indus., 846 F.2d at 1001 (quoting

Westfall, 484 U.S. at 299). We therefore conclude that we lack jurisdiction over

the district court’s denial of Westfall immunity.

13

B. Derivative Sovereign Immunity

Defendants also claim that the denial of their claim of derivative sovereign

In light of our conclusion that, for determining our appellate jurisdiction, Defendants

12

have failed to set forth a substantial claim of official immunity under the discretion prong of

Westfall, we do not address the other prong—whether Defendants were actingwithin the scope

of their official duties.

Our analysis is necessarily hampered by the absence from the record of the 13

substantive portions of the LOGCAP III Contract and Task Order 139, as well as any other

documents that might prove relevant. Accordingly, we limit our holding on this aspect of the

appeal to a determination that Defendants have failed to make the requisite showing on the

record before us, and we do not foreclose the possibility that Defendants may ultimately

demonstrate that they acted with the requisite discretion to warrant application of the

Westfall defense.

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immunity “under theories of agency and state action” is an immediately

appealable collateral order. In Houston Community Hospital, a private

14

insurance carrier under contract with the Government to provide health benefit

plans to federal employees sought to appeal the denial of its claim of derivative

sovereign immunity. 481 F.3d at 267–68. We held that “a denial of [derivative]

sovereign immunity is not subject to immediate review under the collateral order

doctrine.” Id. at 280. We are bound by this precedent. See United States v.

Rose, 587 F.3d 695, 705 (2009) (per curiam). Accordingly, we lack jurisdiction

to review the district court’s denial of Defendants’ claim of derivative sovereign

immunity.

C. Defense Production Act

The district court’s order also denied Defendants’ claim of immunity under

§ 707 of the DPA, 50 U.S.C. app. § 2157. The DPA authorizes the executive to

require the acceptance and priority performance of designated contracts, id.

§ 2071(a), under threat of criminal penalties, id. § 2073. Section 707 provides:

No person shall be held liable for damages or penalties for any act

or failure to act resulting directly or indirectly from compliance with

a rule, regulation, or order issued pursuant to [the DPA],

notwithstanding that any such rule, regulation, or order shall

thereafter be declared by judicial or other competent authority to be

invalid. . . .

Defendants’ agency theory is based primarily on Yearsley v. W.A. Ross Construction

14

Co., 309 U.S. 18 (1940). That case held that landowners on the Missouri River whose land was

injured by a dam project could not seek damages from a governmental contractor engaged to

build the dam where the contractor did not exceed its validly conferred authority. Id. at 21.

Defendants’ state action theory seeks to combine Dobyns v. E-Systems, Inc., 667 F.2d

1219 (5th Cir. 1982), and McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (11th Cir.

2007). In Dobyns, we concluded that a governmental contractor operating an early warning

surveillance station in the Sinai Peninsula was a state actor subject to constitutional

limitations on its behavior. 667 F.2d at 1221–22. In McMahon, the Eleventh Circuit

considered the possibility that “private contractor agents may be entitled to some form of

immunity that protects their making or executing sensitive military judgments . . . .” 502 F.3d

at 1351. The McMahon court ultimately declined to determine whether such an immunity

existed. Id. at 1355–56.

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Id. § 2157. The Supreme Court has noted that § 707 “plainly provides immunity

. . . [b]y expressly providing a defense to liability . . . .” Hercules, Inc. v. United

States, 516 U.S. 417, 429 (1996). However, an immunity that merely provides

a defense to liability cannot justify collateral order review. See Van

Cauwenberghe, 486 U.S. at 524 (“The critical question . . . is whether ‘the

essence’ of the claimed right is a right not to stand trial.” (quoting Mitchell, 472

U.S. at 525)); Henry, 566 F.3d at 178. Defendants’ claim of immunity under

15

§ 707 thus fails Cohen’s unreviewability prong and “can be adequately

vindicated,” Mohawk Indus., 130 S. Ct. at 605, on review from a final judgment

under § 1291 or using the certification procedure for interlocutory appeal

available under § 1292(b).

D. Combatant Activities Exception

Finally, Defendants argue that we have jurisdiction to review the denial

of their claim that Martin’s causes of action are preempted by the combatant

activities exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(j).

The FTCA abrogates the Government’s sovereign immunity for torts committed

by its employees in circumstances where, if the Government were a private

person, the Government would be liable under state law. 28 U.S.C. §§ 1346(b)(1)

& 2674; Villafranca v. United States, 587 F.3d 257, 260 (5th Cir. 2009). The

Government has not, however, abrogated its sovereign immunity for torts

committed by governmental contractors and their employees. 28 U.S.C. § 2671.

 As we stated in Henry:

15

The Supreme Court has warned, however, that one must be careful not to play

word games with the concept of a right not to be tried, for virtually every right

that could be enforced appropriately by pretrial dismissal might loosely be

described as conferring a right not to stand trial. There is a crucial distinction

between a right not to be tried and a right whose remedy requires the dismissal

of charges. A right not to be tried in the sense relevant to the Cohen exception

rests upon an explicit statutory or constitutional guarantee that trial will not

occur.

566 F.3d at 178 (citations, alterations, and internal quotation marks omitted).

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The combatant activities exception withdraws, in the case of a suit against the

Government, both the jurisdictional grant and the abrogation of sovereign

immunity for “[a]ny claim arising out of the combatant activities of the military

or naval forces, or the Coast Guard, during time of war.” Id. § 2680(j).

Defendants argue that the combatant activities exception, which they

acknowledge “does not apply directly to government contractors,” should be read

as preempting Martin’s state law claims. They cite the decisions in Saleh v.

Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), Koohi v. United States, 976 F.2d 1328

(9th Cir. 1992), and Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486 (C.D. Cal

1993), as establishing both that state law causes of action against governmental

contractors may be preempted by the combatant activities exception and that

Martin’s state law causes of action should be preempted here. As with

Defendants’ other defenses, the claim of preemption was denied by the district

court, and Defendants seek immediate appeal of that denial under the collateral

order doctrine.

While the denial of a claim of preemption by the combatant activities

exception may be reviewed on appeal from a final judgment under § 1291 or, in

an appropriate case, on interlocutory appeal under § 1292(b), it may not be

immediately appealed under the collateral order doctrine. We have previously

determined that the denial of a claim that state law is preempted by federal law

is not an order that may be immediately appealed under the collateral order

doctrine. See Houston Cmty. Hosp., 481 F.3d at 268, 280 (finding no appellate

jurisdiction over an uncertified denial of a governmental contractor’s summary

judgment motion that asserted preemption of a hospital’s action by the Federal

Employee Health Benefits Act). This approach is reflected in the Eleventh

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We are not alone in treating denials of claims of preemption as not subject to 16

immediate review under the collateral order doctrine. See, e.g., Joy Global, Inc. v. Wis. Dep’t

of Workforce Dev. (In re Joy Global, Inc.), 257 F. App’x 539, 541 (3d Cir. 2007) (holding that

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Circuit’s McMahon decision, which held that the denial of a contractor’s claim

of preemption under the combatant activities exception is not an immediately

appealable collateral order. McMahon, 502 F.3d at 1366 (holding that the court

lacked appellate jurisdiction over an uncertified denial of a Rule 12(b)(6) motion

to dismiss that asserted preemption by the combatant activities exception).

We conclude, like the Eleventh Circuit in McMahon, that the combatant

activities exception is not subject to a sui generis exemption from the ordinary

jurisdictional requirements for denials of preemption claims. This conclusion

follows from Saleh, on which Defendants rely heavily in pressing their

preemption argument. In Saleh, Iraqi nationals who had been imprisoned at the

Abu Ghraib military prison during the war in Iraq brought claims against two

private military contractors providing interrogation and translation services,

respectively, asserting that they had been abused by employees of the

contractors. Id. at 1–2. The district court in that case initially denied the

contractors’ Rule 12 motion to dismiss based on combatant activities preemption

because the contractors “ha[d] not produced sufficient factual support to justify

[the doctrine’s] application.” Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 17

(D.D.C. 2005) (“Ibrahim I”). The district court ordered limited discovery

the denial of a claim that state law claims were preempted by the Employee Retirement

Income Security Act (ERISA) was not a collateral order); Ultra-Precision Mfg. Ltd. v. Ford

Motor Co., 338 F.3d 1353, 1359 (Fed. Cir. 2003) (stating that “Section 1292(b) more

appropriately addresses the appeal of” claims that state law is preempted by the federal

patent laws (citing Taylor v. PPG Indus., Inc., 256 F.3d 1315 (Fed. Cir. 2001))); Mathis v.

Henderson, 243 F.3d 446, 448–49 (8th Cir. 2001) (noting that a claim that Title VII preempted

FTCA claims does not provide jurisdiction but accepting pendent appellate jurisdiction where

the district court’s refusal to accept an FTCA certification provided independent jurisdiction

and turned on the same issues); Jordan v. Avco Fin. Servs. of Ga., Inc., 117 F.3d 1254, 1257

(11th Cir. 1997) (dismissing an interlocutory appeal of denial of a motion to dismiss after

concluding that “the [McCarran–Ferguson] Act is a statute of preemption rather than one

granting immunity”); Wood v. United States, 995 F.2d 1122, 1130 (1st Cir. 1993) (en banc)

(holding that “interlocutory appeal did not lie from the district court’s decision” on “whether

or not federal law preempted certain of Wood’s state law claims”), abrogated on other grounds

by Osborn v. Haley, 549 U.S. 225 (2007).

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addressing a number of questions:

Other than Titan’s Statement of Work, defendants[ ] have produced

nothing beyond limited assertions to meet their factual burden of

showing that they are entitled to [preemption]. More information

is needed on what exactly defendants’ employees were doing in Iraq.

What were their contractual responsibilities? To whom did they

report? How were they supervised? What were the structures of

command and control?

Id. at 19. Following a year of discovery, the contractors moved for summary

judgment, again asserting preemption. Ibrahim v. Titan Corp., 556 F. Supp. 2d

1 (D.D.C. 2007) (“Ibrahim II”), aff’d in part, rev’d in part, Saleh, 580 F.3d 1. The

district court undertook a fact-intensive analysis and found that the translators

had proven that they were entitled to preemption as a matter of law, id. at 10,

but that the interrogators had not conclusively demonstrated such an

entitlement, id. at 11. On appeal, the Court of Appeals for the District of

Columbia Circuit reversed in part, holding that the claims against both

contractors were preempted by the combatant activities exception. Saleh, 580

F.3d at 7. However, the court’s analysis was—like the district court’s—reliant

upon the facts obtained through the discovery process. See id. at 4 (“We think

the district judge properly focused on the chain of command and the degree of

integration that, in fact, existed between the military and both contractors’

employees . . . .”); id. at 10 (considering as significant the military’s retention of

“command authority [and] operational control over contractors”).

17

Here, by contrast, we are confronted with circumstances comparable to

those present in Ibrahim I—a record too scant to permit an informed decision

about the applicability of preemption under the combatant activities

In discussing Koohi, Bentzlin, Ibrahim I, Ibrahim II, and Saleh, we express neither 17

agreement nor disagreement with the tests or facts found significant by the respective courts

that decided those cases, as our holding renders it unnecessary for us to decide what must be

shown to support preemption under the combatant activities exception.

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exception—that prompted the district court in that case to order limited

discovery and development of the factual record. Instructively, the two appeals

in Saleh reached the D.C. Circuit using the normal machinery of §§ 1291 and

1292(b)—the plaintiffs whose claims were dismissed on summary judgment

against one defendant appealed from a final judgment under § 1291, while the

contractor whose summary judgment motion was denied obtained certification

for interlocutory appeal under § 1292(b). Id. We agree that an appeal from an

appropriately developed and supported interlocutory order denying a claim of

preemption under the combatant activities exception may be handled using the

certification procedure available under § 1292(b). See id. at 4 (accepting

jurisdiction of certified § 1292(b) appeal of order denying claim of combatant

activities preemption); see also McMahon, 502 F.3d at 1366; E.I. DuPont de

Nemours & Co. v. Sawyer, 517 F.3d 785, 792 (5th Cir. 2008) (accepting

interlocutory appeal, under § 1292(b), over denial of claims of preemption under

the doctrine of San Diego Building Trades Council v. Garmon, 359 U.S. 236

(1959), and by provisions of ERISA). That certification procedure was not

followed in multiple respects, and we lack jurisdiction to review Defendants’

claim that Martin’s state law causes of action are preempted.

E. Further Development and Certification

We recognize that many of the immunity and preemption defenses

asserted by the Defendants facially satisfy the terms for certification under

§ 1292(b) in that they “involve[] a controlling question of law as to which there

is substantial ground for difference of opinion and . . . an immediate appeal . . .

may materially advance the ultimate termination of the litigation.” 28 U.S.C.

§ 1292(b). 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. Thorough

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consideration should be given to limiting discovery initially to such defenses.

See Saleh, 580 F.3d at 4 (describing the scope of limited discovery under the

combatant activities exception). Consideration should also be given to freely

certifying orders denying such defenses where the law is unsettled but, after

refinement on appeal, might warrant dismissing plaintiffs’ claims—provided of

course that the record has been developed adequately so that an informed

decision can be made about the contours of these defenses. See Hadjipateras v.

Pacifica, S.A., 290 F.2d 697, 703 (5th Cir. 1961) (“[Section 1292(b) was enacted]

to give the appellate machinery . . . a considerable flexibility . . . so that within

reasonable limits disadvantages of piecemeal and final judgment appeals might

both be avoided.”).

F. Pendent Appellate Jurisdiction

Defendants claim that because they have “established that the District

Court’s denial of at least one of its asserted defenses is a collateral order, [we]

ha[ve] jurisdiction to review all of [Defendant’s] asserted defenses” under the

pendent appellate jurisdiction doctrine. We disagree that Defendants have

established jurisdiction over at least one asserted defense, and we consequently

do not assess the propriety of exercising pendent appellate jurisdiction here.

In a similar vein, Martin asserts that only Kellogg Brown & Root is a

signatory to the LOGCAP III Contract and that the remaining Defendants are

not entitled to immunity or collateral order review of the denial of that

immunity. In light of our determination that we lack jurisdiction over any of the

claims, we need not address this contention further.

III. CONCLUSION

Defendants have failed to carry their burden of establishing our

jurisdiction over any aspect of this interlocutory appeal. Accordingly, we

GRANT Martin’s motion to dismiss and DISMISS the appeal for lack of subject

matter jurisdiction. In doing so, we express no opinion on the merits of

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Defendants’ claims.

The motion to dismiss is GRANTED; the appeal is DISMISSED. Costs

shall be borne by Defendants.

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