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High Court Asked to Explore Contractor Liability for Deaths in Iraq Print
Legal Times
02-22-2007

Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme Court's jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed.

Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed.
The grisly details of the murder and dismemberment of four U.S. citizen contractors in the Iraqi city of Fallujah have found their way onto U.S. soil in a dispute that may reach the Supreme Court. In the case, the estates of the four late contractors filed suit against Blackwater Security, a company with whom the decedents contracted to perform military escort services.

The estates attribute the contractors' deaths to the allegedly negligent and deceitful actions of the contracting companies, asserting claims of common-law fraud and wrongful death under North Carolina law. Blackwater, however, contends that the state law claims are pre-empted by federal law, and that no court, state or federal, has jurisdiction to review the claims. Interestingly, no court has yet ruled on whether Blackwater ought to be held financially responsible for the deaths of the four contractors; instead, in Blackwater Security Consulting v. Nordan (No. 06-857), the company is asking the Supreme Court to step in and determine where the next confrontation, if any, over the responsibility for the decedents' deaths will take place.

The four decedents were employed as independent contractors by Blackwater, which provided security and logistical support for private contractors in Iraq. On March 30, 2004, the contractors were ordered to escort three trucks carrying food supplies to a U.S. Army base. Lacking the necessary support, the four ultimately became lost in the city of Fallujah at a time when reportedly even the U.S. military would not enter the city. Insurgents ambushed the convoy, murdered the contractors, and beat, burned, and dismembered their remains.

Richard Nordan, in his capacity as administrator for the decedents' estates, sued Blackwater and other related parties in the North Carolina state court. The suit alleged wrongful death and fraud under North Carolina tort law, and it claims that Blackwater failed to provide the armored vehicles, equipment, personnel, weapons, maps, or necessary lead time in which the four men could have familiarized themselves with the area.

Blackwater removed the case to federal district court, asserting that the Defense Base Act, which Congress passed in 2000, completely pre-empted the state law claims and presented unique federal interests sufficient to create a federal question. Once in federal court, Blackwater sought dismissal based on the district court's purported lack of subject-matter jurisdiction (the DBA requires claimants to litigate their claims before the Department of Labor, though its decision would be subject to review by a federal district court).

The district court rejected Blackwater's arguments, concluding that the DBA does not completely pre-empt state law claims because it does not present original jurisdiction over the matter in federal district court, but rather in a government agency. The court also concluded that there was no unique federal interest involved that was sufficient to establish jurisdiction, because it was unclear whether the DBA applied to the decedents. Thus, the federal court remanded the suit back to state court.

Blackwater appealed, and the 4th U.S. Circuit Court of Appeals affirmed the district court's decision, concluding that it lacked authority to review the case on appeal. Blackwater argued that the district court's decision to remand undermined the constitutional sequestration of foreign affairs and war powers within the political branches of government, because a state court would be forced to decide issues affecting military operations in the Iraq War; but the court again rejected Blackwater's views, stating its belief that the Constitution does not override Congress' ability to circumscribe appellate jurisdiction in this matter.

Represented by Kenneth Starr of Kirkland & Ellis, Blackwater has now asked the Supreme Court to consider the issue, arguing that the remand order circumvented federal statutory and constitutional designs to preclude state-court jurisdiction.

The petition asks the Court to revisit the "derivative-jurisdiction doctrine," which states that where a state court lacks jurisdiction over a case that is removed to federal court, the federal court must dismiss rather than remand the case. In other words, Blackwater argues that a removal action should be dismissed rather than remanded in a situation where both the state and federal courts lack subject-matter jurisdiction to hear the case.

Nordan's brief in opposition, for which Daniel Callahan of Callahan & Blaine served as counsel of record, argues that Congress eliminated the derivative-jurisdiction doctrine and that Blackwater's argument rests on the erroneous assumption that the North Carolina court lacks jurisdiction in this case. It asserts that the decision below was correct, and that the high court need not step in and hear the case.

The justices will consider Blackwater's petition at its private conference on Friday, and we may know whether the Court will hear the case as early as Feb. 26. -- Christopher Pudelski

OTHER CASES UP FOR REVIEW INCLUDE THE FOLLOWING:

# 06-523, Mitchell v. Smith: Whether the deferential standard for habeas corpus review under 28 U.S.C.§2254(d) allows a federal court to grant relief on an insufficient-evidence claim by accepting the expert testimony of defense experts over the contrary opinions of prosecution experts believed by the jury and found sufficient by the state appellate court.

# 06-603, Irving N. v. Rhode Island Department of Children, Youth, and Families: Whether Title II of the Americans With Disabilities Act applies to termination of parental-rights proceedings initiated by state agencies and prosecuted in state courts.

# 06-710, Horn v. Michael: Whether a court of appeals may entertain an appeal filed by a capital defendant's discharged counsel when that defendant has been determined to be competent, has waived his right to federal habeas corpus review, and objects to such an appeal.

# 06-713/06-730, Washington State Grange v. Washington State Republican Party/Washington v. Washington State Republican Party: Whether the First Amendment prohibits top-two election systems that allow a candidate to disclose on the ballot the name of the party he personally prefers.

# 06-736/06-750, Environmental Protection Agency v. New York/Utility Air Regulatory Group v. New York: Whether the court of appeals erred in invalidating an EPA rule on the ground that the phrase "any physical change" in the definition of "modification" in Section 111(a)(4) of the Clean Air Act unambiguously requires the EPA to adopt the broadest meaning of the phrase.

# 06-765, New Mexico v. Romero: Whether the New Mexico Supreme Court's decision has created a zone where no federal or state criminal jurisdiction may be invoked because certain lands within the original exterior boundaries of a Pueblo land grant are effectively prosecution-free. [Note: This case will be considered at the March 2 conference.]

# 06-828, Henderson v. Quarterman: Whether Texas v. Cobb precludes review of a capital murder conviction based upon evidence obtained when -- after the petitioner exercised her Miranda rights during custodial interrogation and asked for an attorney, to whom she later entrusted confidential, incriminatory information -- the state then compelled her attorney to disclose the very information that the petitioner lawfully refused to provide to the police.

# 06-856, LaRue v. DeWolff, Boberg, and Associates: Whether Section 502(a)(2) of the Employee Retirement Income Security Act permits a participant to bring an action to recover losses attributable to his account in a "defined contribution plan" that were caused by fiduciary breach.

# 06-873, Mohawk Industries v. Williams: Whether a corporation and its agents can constitute an association-in-fact racketeering enterprise and whether a company's hiring of its own employees may constitute participation in the conduct of an enterprise that is distinct from the company itself.
 
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