Harris v. Kellogg Brown & Root Services, Inc.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-2325

_____________

CHERYL HARRIS, Co-administratrix of the Estate

of Ryan D. Maseth, deceased;

DOUGLAS MASETH, Co-Administrator of the Estate

of Ryan D. Maseth, deceased,

v.

KELLOGG BROWN & ROOT SERVICES, INC.,

Appellant

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 2-08-cv-00563

District Judge: The Honorable Nora B. Fischer

Argued June 22, 2010

Before: SMITH, FISHER, and COWEN, Circuit Judges

(Filed: August 17, 2010)

Patrick K. Cavanaugh (argued)

Stephen J. Del Sole

William S. Stickman, IV

Del Sole Cavanaugh Stroyd LLC

200 First Avenue

Suite 300, The Waterfront Building

Pittsburgh, PA 15222

Counsel for Appellee

Raymond B. Biagini

Kurt J. Hamrock

Michelle L. Hylton

Daniel L. Russell, Jr.

McKenna, Long & Aldridge

1900 K Street, N.W.

Washington, DC 20006

Counsel for Appellant

John R. Dingess

Joseph L. Luciana, III (argued)

Dingess, Foster, Luciana, Davidson & Chleboski LLP

20 Stanwix Street

PNC Center, Third Floor

Pittsburgh, PA 15222

Counsel for Appellant

William D. Wickard

K&L Gates

210 Sixth Avenue

Pittsburgh, PA 15222

Counsel for Appellant

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OPINION

SMITH, Circuit Judge.

This case raises interesting and important questions about

the scope of the political question doctrine and the Federal Tort

Claims Act’s “combatant activities” exception. We do not reach

those questions now, however, because they are not properly

before us. We must dismiss this premature appeal for lack of

jurisdiction.

I.

This appeal arises from the accidental death of Staff

Sergeant Ryan Maseth, an active duty Army Ranger and Green

Beret serving in Iraq. On January 2, 2008, Sergeant Maseth was

showering in his quarters when the electric water pump

servicing the building short-circuited. Because the building’s

electrical system was not properly grounded, a charge flowed

through the pipes and water, shocking Sergeant Maseth and

inducing cardiac arrest.

His parents, Cheryl Harris and Douglas Maseth

(collectively, “Plaintiffs”) filed a wrongful death and survival

action against Kellogg Brown & Root Services, Inc. (“KBRSI”)

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in Pennsylvania state court. KBRSI is a government contractor

that performs various services for the United States military in

combat zones, including Iraq. Pursuant to a contract with the

Army, KBRSI was responsible for electrical maintenance in the

building in which Sergeant Maseth was electrocuted. Plaintiffs

allege that the electrical problems in Sergeant Maseth’s building

were well-known; that KBRSI negligently failed to repair them;

and that this negligence caused the death of their son.

After properly removing the suit to the United States

District Court for the Western District of Pennsylvania,1 KBRSI

moved to dismiss under Rule 12 of the Federal Rules of Civil

Procedure. KBRSI identified two grounds for dismissal. First,

it argued that the case presented non-justiciable political

questions. See Baker v. Carr, 369 U.S. 186, 217 (1962).

Second, it argued that it was immune from suit under the

“combatant activities” exception to the Federal Tort Claims

Act’s waiver of sovereign immunity. See 28 U.S.C. § 2680(j)

(preserving immunity to “[a]ny claim arising out of the

combatant activities of the military or naval forces, or the Coast

Guard, during time of war”). The parties conducted several

months of discovery related to this motion.

On March 31, 2009, the District Court denied the motion

to dismiss without prejudice. On the political question issue, it

1

The District Court had jurisdiction under 28 U.S.C. §

1332(a).

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concluded:

Upon consideration of the present record . . . the

Court finds that Plaintiffs’ claims do not present

non-justiciable political questions . . . . The

principles of separation of powers will not be

violated by the Court resolving the merits of

Plaintiffs’ claims. Accordingly, [KBRSI’s]

motion to dismiss Plaintiffs’ claims based on the

political question doctrine is denied, without

prejudice. If further factual development

illuminates the presence of political questions in

this action, [KBRSI] may renew its motion at that

time.

The Court also held that KBRSI was not entitled to immunity

under the combatant activities exception “at this time” but

emphasized that its decision was informed by the fact that only

“limited discovery” had been conducted to date.

KBRSI sought certification for an interlocutory appeal

under 28 U.S.C. § 1292(b). That too was denied. The District

Court concluded first that its March 31 order did not involve a

“controlling” question of law. See 28 U.S.C. § 1292(b). It also

held that there was no substantial basis for difference of opinion,

and that allowing an interlocutory appeal would not materially

advance the ultimate termination of the litigation. Id. The

District Judge again noted that the case was in the early stages

of discovery, and that KBRSI’s motion to dismiss was denied

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without prejudice. She reiterated that she would entertain a

renewed motion, if one was warranted in light of the facts

obtained through further discovery. In the interim, however, she

thought Plaintiffs should have the opportunity to conduct merits

discovery—of which there had been virtually none, nearly a year

and a half after Sergeant Maseth’s death—without the delay that

an appeal would inevitably cause.

Instead of proceeding in the District Court, KBRSI

immediately filed a Notice of Appeal. It argues that the District

Court erred by rejecting its political question and § 2680(j)

defenses. On May 7, 2009, we ordered the parties to provide

briefing as to whether we have jurisdiction. KBRSI insists that

we do; Plaintiffs disagree.

II.

28 U.S.C. § 1291 gives us jurisdiction over the “final

decisions” of the district courts. “A ‘final decision’ generally is

one which ends the litigation on the merits and leaves nothing

for the court to do but execute the judgment.” Catlin v. United

States, 324 U.S. 229, 233 (1945). KBRSI concedes that the

order denying its motion to dismiss does not fit this description.

It argues, however, that the order is immediately reviewable

under the collateral order doctrine set forth in Cohen v.

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

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

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

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‘practical construction’ of it,” Digital Equip. Corp. v. Desktop

Direct, 511 U.S. 863, 867 (1994) (quoting Cohen, 337 U.S. at

546), which recognizes that “[w]hile a final judgment always is

a final decision, there are instances in which a final decision is

not a final judgment.” Abney v. United States, 431 U.S. 651,

658 (1977) (quoting Stack v. Boyle, 342 U.S. 1, 12 (1951)

(Jackson, J., concurring in part)).

To establish collateral order jurisdiction, KBRSI must

show that the District Court’s order (1) conclusively determined

(2) “an important issue completely separate from the merits of

the action” and (3) “would be effectively unreviewable on

appeal from a final judgment.” Will v. Hallock, 546 U.S. 345,

349 (2006). We conclude that the order appealed did not

“conclusively determine” whether KBRSI could successfully

invoke the political question doctrine or the combatant activities

exception. Therefore, the Cohen test is not satisfied, and we

need not address the other two prongs of the test. Jones v. Lilly,

37 F.3d 964, 966 (3d Cir. 1994) (noting that all three prongs of

the Cohen test must be satisfied before collateral order review

is appropriate).

The Supreme Court has used varying language to

implement the “conclusively determined” prong of Cohen, but

we perceive no change in the governing standard. The Court

has described Cohen as requiring a “fully consummated

decision” and “a complete, formal, and . . . final” resolution of

the disputed issue. Abney, 431 U.S. at 659. It has allowed

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collateral order review where there was “no basis to suppose

that the District Judge contemplated any reconsideration of his

decision,” Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 12-13 (1983), and prohibited it where the

relevant order was left “subject to revision.” Coopers &

Lybrand v. Livesay, 437 U.S. 463, 469 (1981). More recently,

the Court has explained that the district court’s ruling must be

“the final word on the subject addressed.” Digital Equip. Corp.,

511 U.S. at 868. “Tentative” rulings can never satisfy the

“conclusively determined” requirement. See, e.g., id. at 869 n.2;

Coopers & Lybrand, 437 U.S. at 469 n.11; Cohen, 337 U.S. at

546.

Consistent with this authority, we have long held that

collateral order review requires “a final rather than a provisional

disposition of an issue.” Rodgers v. U.S. Steel Corp., 508 F.2d

152, 159 (3d Cir. 1975). An illustrative case is Metex Corp. v.

ACS Industries, Inc., 748 F.2d 150 (3d Cir. 1984). There,

plaintiff Metex sued a competitor for unfair trade practices. In

furtherance of that claim, it sought certain records from the

Department of Justice under the Freedom of Information Act

(“FOIA”). When the DOJ resisted, Metex joined it as a

defendant in its unfair trade practices claim, then moved for

summary judgment on the FOIA issue. The district court denied

the motion. Metex immediately appealed. We dismissed for

lack of appellate jurisdiction, because the “district court did not

treat its ruling on the summary judgment motion as final; rather,

it indicated that it was prepared to reconsider the motion at a

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later time.” Id. at 153. We held that “[b]ecause the district

court explicitly left open renewed consideration of the FOIA

claim, the order was not ‘conclusively determined’ within the

meaning of Cohen.” Id. That decision echoed our holding in

Lusardi v. Xerox Corp., 747 F.2d 174 (3d Cir. 1984). In that

case, plaintiffs filed a purported class action against Xerox,

alleging unlawful age discrimination. After a hearing, the

district court conditionally certified the class. It ordered Xerox

to provide plaintiffs with a list of all potential claimants, and

plaintiffs to provide notice of the lawsuit to everyone on that

list. Id. at 175-76. The court proposed using the class notice,

and an accompanying questionnaire, as a “discovery device that

ultimately would enable it to determine whether a group of

‘similarly situated’ individuals” existed. Id. at 176. It intended

to decertify the class “if the evidence elicited by the

questionnaires and consent forms did not demonstrate an

adequate number of sufficiently similar claims.” Id. When

Xerox appealed the conditional certification order, we dismissed

for lack of jurisdiction. We held that the first prong of Cohen

was not satisfied because the order was explicitly made “subject

to revision by the district court” depending on the responses to

the questionnaire. Id. at 177. We noted that such “conditional

certification [could] in no way be termed a final disposition of

the class action issue.” Id. at 177-78. Other cases in this Circuit

have unfolded similarly. See, e.g., New York v. U.S. Metals Ref.

Co., 771 F.2d 796, 799 (3d Cir. 1985) (rejecting jurisdiction

under Cohen because the district court “intend[ed] to reconsider

its order” as soon as certain fact-finding was completed);

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Silberline Mfg. Co. v. Int’l Nickel Co., 569 F.2d 1217, 1220 (3d

Cir. 1977) (per curiam) (finding collateral order doctrine

inapplicable where district court had not yet “settled [the

disputed issues] conclusively”). Cf. Fed. Ins. Co. v. Rubin &

Co., 12 F.3d 1270, 1280 (3d Cir. 1993) (finding Cohen test

satisfied where the district court rejected a claim of sovereign

immunity, and “gave no indication that it would reopen [that]

issue at a later pre-trial stage of the proceedings”).

These cases convince us that the District Court’s March

31 order did not conclusively determine the disputed issues in

this case. Judge Fischer made clear that her rejection of

KBRSI’s political question and § 2680(j) defenses was not

necessarily her “final disposition” of these issues. Cohen, 337

U.S. at 546. In fact, she did so twice—first in denying KBRSI’s

motion to dismiss, and again in denying certification for

interlocutory appeal under §1292(b). Her ruling was nothing

resembling a “complete, formal, and . . . final rejection” of

KBRSI’s position. Abney, 431 U.S. at 659. Rather, it was a

“tentative” ruling based solely on the limited discovery that had

been conducted to date. Digital Equip. Corp., 511 U.S. at 869

n.2. As in Metex, the “district court did not treat its ruling as

final; rather, it indicated that it was prepared to reconsider the

motion at a later time.” 748 F.2d at 153. Under these

circumstances, accepting KBRSI’s appeal now would not be

“review”; it would be improper “intervention,” if not outright

“intrusion.” Cohen, 337 U.S. at 546.

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KBRSI’s argument for jurisdiction relies chiefly on

Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007), and U.S.

Steel Corp. v. United Mine Workers, 456 F.2d 483 (3d Cir.

1972). KBRSI cites these cases for the general proposition that

collateral order jurisdiction may exist “notwithstanding that the

order appealed was issued ‘without prejudice.’” That principle

is true as far as it goes, but it does not go nearly far enough to

help KBRSI. Both Frederico and U.S. Steel are distinguishable.

In Frederico, the plaintiff filed a class action lawsuit

against Home Depot in state court. The complaint sounded in

fraud and breach of contract. Home Depot removed to federal

court, and the district court dismissed the complaint without

prejudice pursuant to Rules 9(b) and 12(b)(6). Frederico, 507

F.3d at 190-91. The plaintiff chose not to amend her complaint

to remedy the deficiencies noted by the district court. Instead,

she appealed. We raised the issue of jurisdiction sua sponte, and

noted our prior holding that “a dismissal with leave to amend

will be treated as a final order if the plaintiff has elected to stand

upon the original complaint,” rather than amend it. Id. at 192

(internal quotations omitted). Because the plaintiff maintained

that her complaint was legally sufficient, and clearly signaled

her intent to stand upon it, we treated the dismissal without

prejudice as a final decision. Id. Accordingly, we held that we

had jurisdiction under § 1291, notwithstanding the district

court’s dismissal “without prejudice.” We noted that allowing

appellate review under these circumstances was “consistent with

the goal of the final judgment rule—to prevent piecemeal

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litigation—because if plaintiff cannot or will not bring a second

action, there is no risk of multiple litigation.” Id. (internal

quotations omitted).

U.S. Steel involved an attempt by certain steel and mining

interests to enjoin a work stoppage organized by labor unions.

456 F.2d at 485. A preliminary injunction issued, but was

vacated on appeal. When the matter returned to the district

court, the parties entered into a stipulation which “end[ed] the

lawsuit for all practical purposes.” Id. at 486. The unions then

filed a motion to recover litigation costs incurred in the

injunction proceedings. The district court denied that motion

without prejudice, and the unions promptly appealed. We held

that we had jurisdiction under Cohen, because “the order

appealed from, although in form interlocutory, was in practical

effect final on the issue” of costs, as it was clear that “no further

proceedings would take place in the district court.” Id. at 487

(emphasis added).

The differences between these cases and the case before

us are apparent. In Frederico and U.S. Steel, we had jurisdiction

because it was clear that the district court had rendered its final

disposition of the disputed issues, notwithstanding the “without

prejudice” designation. In other words, in both cases the order

appealed was “the final word on the subject addressed,” Digital

Equip. Corp., 511 U.S. at 868, and thus there was no danger of

duplicative appeals. Here, there are no such indicia of finality.

The District Court explicitly invited the parties to revisit the

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disputed issues as the factual record developed.

Nor would asserting jurisdiction now comport with the

goal of the finality rule—avoiding piecemeal litigation.

Frederico, 507 F.3d at 192. It takes little imagination to foresee

how reviewing the District Court’s ruling now could undermine

that goal. Suppose we undertook review here and concluded

that, on the record before us, no political question existed. We

would then remand the case, and presumably, discovery would

continue. But because the presence or absence of a political

question is such a fact-intensive inquiry, see Baker, 369 U.S. at

217, a better-developed record could give rise to another

colorable motion to dismiss.2 Suppose that this time, the District

Court granted KBRSI’s motion, and Plaintiffs appealed.3 We

2

Indeed, KBRSI has already informed the District Court

that it intends to file a renewed motion to dismiss and/or a

summary judgment motion once merits discovery is completed.

3

This is not a far-flung hypothetical. It is exactly what

happened in Carmichael v. Kellogg Brown & Root Servs., Inc.,

572 F.3d 1271 (11th Cir. 2009). There, plaintiffs brought a tort

claim against KBRSI based on an accident involving a military

convoy in Iraq. KBRSI moved to dismiss on political question

grounds. The district court denied that motion and allowed

discovery to run its course. KBRSI again moved to dismiss on

political question grounds. This time, with the benefit of a

complete record, the district court agreed that political questions

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would again be required to decide the applicability of the

political question doctrine to this case. There could be no

clearer example of the very redundancy, delay, and waste of

judicial resources that the final decision rule is intended to

prevent. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S.

368, 374 (1981).

III.

Because the District Court’s March 31 order did not

conclusively determine the disputed issues in this case, we

cannot review it under the collateral order doctrine. We will

dismiss the appeal for lack of jurisdiction.

were present and dismissed the case. Id. at 1279. Plaintiffs

appealed, and after a lengthy, fact-intensive analysis, the

Eleventh Circuit affirmed. If KBRSI had been permitted to

appeal after the district court denied its initial motion, the

Eleventh Circuit might well have been forced to examine the

same case twice in search of political questions.

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