# Petition for Writ of Certiorari — Blackwater Security Consulting, LLC v. Nordan, 127 S. Ct. 1381 (2007) (No. 06-857)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

(1) Supreme Court, U.S.
FILED

No. 06- i $

ss FFICE O E CLERK
4n the Supreme Court of the United orates

BLACKWATER SECURITY CONSULTING, LLC, ef al.,
Petitioners,
V.

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 KENNETH W. STARR

M. MILLER BAKER Counsel of Record
MICHAEL S. NADEt RICK RICHMOND
McDERMOTT WILL & EMERY LEP KIRKLAND & ELLISI LP
600 Thirteenth Street, N.W. 777 South Figueroa Street
Washington, DC 20005 Los Angeles. CA 90017
(202) 756-8000 (213) 680-8400

JOSEPH E. SCHMITZ

THE PRINCE GROUP

1650 Tysons Boulevard, Suite 800
McLean. VA 22102

(703) 663-6997

drtorneys for Petitioners Blackwater Security Consulting LLC.
and Blackwater Lodge and Training Center, Inc

Additional Counsel Listed on Inside Front Cover

December 20, 2006

WILSON-EPES PRINTING CO.. INC. - (202) 789-0096 - WASHINGTON. DC. 20001

KIRK G. WARNER SUSAN E, ENGEL

SMITH, ANDERSON, BLOUNT, JENNIFER S. ATKINS
DORSETT, MITCHELL & JERNIGAN KIRKLAND & ELLIS LLP
P.O. Box 261 | 655 Fifteenth Street, N.W.
Raleigh, NC 27602 Washington, DC 20005
(919) 821-1220 (202) 879-5000

‘Altorneys for Petitioners Blackwater Security Consulting LLC,
and Blackwater Lodge and Training Center, Inc.

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 Department-
mandated 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 subject-
matter 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.

il

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.

iii
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.

Vv

TABLE OF CONTENTS

PARTIES TO THE PROCEEDING
CORPORATE DISCLOSURE STATEMENT

TABLE OF CONTENTS

STATUTES INVOLVED

STATEMENT OF THE CASE

I. The Court Should Resolve An Important And
Recurring Question Of Federal Practice Over
Which The Federal Courts Are In Disarray. ............0..00..- 9

. 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
PN ahicschadoniesttiectaiatedcentaetiaeicdsacutencbiac asin 19

CONCLUSION

Vii

ABLE OF AUTHORITIES

Cases

Aliota v. Graham,
984 F.2d 1350 (3d Cir. 1993)

Arizona v. Manypenny,
451 U.S. 232 (1981)

Asarco, Inc. v. Glenara, Ltd.,
912 F.2d 784 (Sth Cir. 1990)

Barbara v. NYSE,
99 F.3d 49 (2d Cir. 1996)

Bell v. City of Kellogg,
922 F.2d 1418 (9th Cir. 1991)

Borneman v. United States,
213 F.3d 819 (4th Cir. 2000)

Bromwell v. Mich. Mut. Ins. Co.,
115 F.3d 208 (3d Cir. 1997)

Calcano- Martinez v. INS,
533 U.S. 348 (2001)

Cedano-Viera v. Ashcroft,
324 F.3d 1062 (9th Cir. 2003)

Chelsea Cmty. Hosp. v. Mich. Blue Cross Ass’n,
» SHRP FSF CO Foi cei, 24

Coyne ex rel. Ohio v. Am. Tobacco Co..,
183 F.3d 488 (6th Cir. 1999)

Vili

Czerkies v. Dep't of Labor,
73 F.3d 1435 (7th Cir. 1996)

Dep’t of Revenue v. Inv. Fin. Mgmt. Co.,
831 F.2d 790 (8th Cir. 1987)

Doe v. Cheney,
885 F.2d 898 (D.C. Cir. 1989)

Edwards v. U.S. Dep’t of Justice,
43 F.3d 312 (7th Cir. 1994)

Ethridge v. Harbor House Rest.,
861 F.2d 1389 (9th Cir. 1988)

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

Franchise Tax Bd. of California v. Constr. Laborers

Vacation Trust for S. California,
Nee cana senceceacaneersseuntanecuveneniees 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)

Humphries v. Various Fed. USINS Employees,
164 F.3d 936 (Sth Cir. 1999)

In re Elko County Grand Jury,
109 F.3d 554 (9th Cir. 1997)

International Primate Protection League v. Administrators
of Tulane Educational Fund,
500 U.S. 72 (1991)

Johnson v. Robison,
415 US. 361 (1974)

Koppers Co. v. Con’l Cas. Co.,
337 F.2d 499 (8th Cir. 1964)

Lambert Run Coal Co. v. Baltimore & Ohio R.R.,
258 U.S. 377 (1922)

Lane v. Halliburton,
No. H-06-1971, 2006 WL 2583438
{S.D. Tex. Sept. 7, 2006)

Lontiz v. Tharp,
413 F.3d 435 (4th Cir. 2005))

Mangold v. Analytic Servs., Inc.,
77 F.3d 1442 (4th Cir. 1996)

McBryde v. Comm. to Review Circuit Council Conduct,
Se Ee Fe Ci es Col ED sesrscanctutaceaaeapuiccantndiairitdiaais 24

McMahon vy. Presidential Airways, Inc.,
410 F. Supp. 2d 1189 (M.D. Fla. 2006)

Mignogna v. Sair Aviation, Inc.,
937 F.2d 37 (2d Cir. 1991)

Nyeholt v. Secretary of Veterans Affairs,
COE PE NII Oe K, BE i rvictvncenstvntoieieicinctincisniiiaa 24

Osborn v. Haley,
422 F.3d 359 (6th Cir. 2005)

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

Paluca v. Sec’y of Labor, 3
Fe ee Pe CRN) CIEE Ps ccsinsiccdecravnsenseninicbiningueineviies 24

Roach v. W.Va. Reg’l Jail & Corr. Facility Auth.,
Fe I BO iteieisistninscscsiininsipcenevinbvsititssninns 14

S. Windsor Convalescent Home v. Mathews,
Pe ee Fe ile FF Pe iicetvvnsceccnscestdsnsibevedtennenssasonnse 24

Schacht v. Wis. Dep’t of Corrs.,
BO Pe BEE CF Ge, BP iiicsinincitotccsieniancnitnsentiicnrsicianns 14

Shives v. CSX Transportation, Inc. (In re CSX Ti ransp.),
BPE Oe BO Cy, FIG i ceevesiccssrnsovvccivesdcscsnece 6, 13, 18

Smith v. Cromer,
Re Fe Te Ie ile Fe Mivccccnsersincenisnserndsisisntriniinsteciadaes 16

Smith v. Halliburton,
No. H-06-0462, 2006 WL 2521326
Sm es SUI: UR UI scsisiniisensacieediersushnsonecseeensens 15, 26

Smith v. Wis. Dep’t of Agric.,
Pa Bee Ty, Le 3) |) ee. paticaacnases i4

Smith-Idol v. Halliburton,
No. H-06-1168, 2006 WL 2927685
Ts MI, Us icicle i ci a 26

Tarble’s Case,
RE ok: 9 « SST ND ETE REE 19, 23, 25

Thermtron Products, Inc. v. Hermansdorfer,
AF We PE PD rtitrescticcbiiituttinentnnienasiadsunpnuncii 7,17, 24

Univ. of S. Ala. v. Am. Tobacco Co.,
FO ee UNE ee Ce rian veinnnstcnciseecdnenicizcns 14

x1

Waco v. U.S. Fidelity & Guaranty Co.,
ein sacle cinissinentenctaceruinenidisee toca: 7

Webster v. Doe,
oes Bg 1.) MORO NERO AIE PALS RIN ert 23

Whitaker v. Kellogg Brown & Root, Inc.,
444 F. Supp. 2d. 1277 (M.D. Ga. 2006) o........ccccecsceseseee. 26

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

Ne NINE seria sassaiialcdesasdobpaninmncanscaiaudtaniaiii tical aii 26
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Rules

14B Charles Alan Wright, et-al., FEDERAL PRACTICE &
PE Ee Ge Fe iccerwicncccvedavecrsvensrsctuntebetinieouns 10, 12

16 MOORE’S FEDERAL PRACTICE § 107.41[1 ][e][iii][E] (3d
1 Be isissinicttiatcinvtatamedadimanumendtnameiacnees 14

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X1il

National Defense Authorization Act
for Fiscal Year 2007, Pub. L. No. 109-364,
UU ar a 8

Senate Report No. 92-1175 (1972) 2]

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 ef seg.
(“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 juris-
diction, 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:

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 force 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(f) 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 nght, title or authonty 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:

3

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.’ Lives are sometimes lost in that danger-
filled 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

‘ee 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 iis warfighting capability and
capacity. ” Since contractors are part of the nation’s war-fighting force,

“(t]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.”

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 authorized by Congress and
implemented by the Executive Branch as the most
expeditious strategy for carrying out the nation’s enormousty
challenging missions. War-risk 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 Fallujah — 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, [raq,
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 of Labor, see 42 U.S.C.
§ 165l(c) (liability under the Defense Base Act (“DBA”)

5

“shall be exclusive and in place of all other liability”); id.
§§ 1653(a)-(b) (providing for U.S. Department of Labor
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) is
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
trom 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

6

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. Jd. 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 pre-
existing federal cause of action that can be brought in the
district courts.””) (quoting Lontz v. Tharp, 413 F.3d 435, 442
(4th Cir. 2005)). Finding a lack of complete preemption, the
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, Inc. (In re CSX
Transp.), 151 F.3d 164, 171 (4th Cir. 1998), it would be
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

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,
Inc. 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. 12a-
13a. 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
“[t]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

8

United States armed forces supply lines are kept open under
enemy fire in a foreign theater of war — even though
Congress created an exclusive administrative 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 government — 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), by
clarifying that persons subject to the UCMJ include, “{iJn
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

9

and naval Forces[,]” U.S. Const. art. I, § 8, cl.14, and to
“provide ... for governing 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

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 amendments to 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 the
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

10

none.”); Gen. Inv. Co. v. Lake Shore & Mich. S. Ry. Co., 260
U.S. 261, 288 (1922) (“A want of jursdiction 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 have 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. Inv. Co., 260 U.S. at 287-
88 (1922), and Koppers Co. v. Con’l 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 the
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 should proceed immediately,

1]

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 derivative-
jurisdiction 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 derivative-
jurisdiction 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.

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”).

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

? 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 (9th Cir. 1988). By its plain
language, Section 1447(f) 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(f) 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.

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, Inc. v.
Glenara, Ltd., 912 F.2d 784, 787 (Sth 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 if
it would be futile, as it would be if the state court could not
exercise jurisdiction over [plaintiff's] claim against
[defendant].”’) (citation omitted).”

* Indeed, the Fourth Circuit has held that dismissal rather than
remand 1s 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.

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 no
exception for cases where the state court lacks jurisdiction.
See Bromwell v. Mich. Mut. Ins. Co., 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. 1996); 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 (11th Cir. 1999). These decisions, however,
do not consider whether the derivative-jurisdiction doctrine
has continuing vitality. Nor do they consider whether
Section 1447(c) should be construed harmoniously with
other statutes that strip state courts of jurisdiction over
certain claims.

c. This Court has yet to address head on the discord
prevailing among the circuits on the issue. In /#ternational
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’ FEDERAL PRACTICE §
107.41[1 ][e][ii][E] (3d ed. 2006) (discussing the circuit split
and stating that /nternational Primate “discussed the futility
doctrine but dofes] not reject it”). The circuits embracing a

2000); Mangold v. Analytic Servs., Inc., 77 F.3d 1442 (4th Cir. 1996). In
the decision below, the court of appeals limited its earlier decisions to
their facts. App. 30a-32a.

15

futility exception to 28 U.S.C. § 1447(c), however, rely on
dicta in Jnternational 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 12solution 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, Inc., 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)

16

(emphasis added), courts have held that it does not apply to
removals under Section 1442 and that the derivative- -
jurisdiction doctrine continues to apply to such removals.
See Smith v. Cromer, 159 F.3d 875, 879 (4th Cir. 1998) (“It
is Clear that a federal court’s jurisdiction 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.”); Jn 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, our 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 is
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 dismiss (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(f) does not, on its face, carve out an exception to
Section 1447(c). To the contrary, that provision merely
confirms that district courts have jurisdiction to hear a case

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.’

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)

* 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.

> 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

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 a
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 a
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 jurisdiction over issues of
DBA coverage, App. 47a, the trial 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.”’).

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 a/ways 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 ficld of foreign military operations, as well as the
Statutory exclusivity of federal liability for contractor war
casualties sustained in foreign theaters of battle.

Il. 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.

|. 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 2%
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

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.° A similar
question is presented by the decision below: whether an
exception exists to § 1447(d)’s bar 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 state-
tort 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

° In Osborn, the district court remanded a state 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 Attorney General had certified
that the employee was acting within the 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. /d. The Sixth
Circuit reversed both the certification ruling and the remand order,
holding that the Westfall Act foreclosed remand. /d. at 364.

21

U.S.C. § 1651(c) (emphasis added). Section 1447(d) should
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 alternative 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 is
immeasurably fortified by the fact that it rests on the
constitutional allocation of foreign affairs and war powers to
the United States.

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 on
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]ontention that
[38 U.S.C.] § 211(a) [‘which prohibits judicial review of
decisions of the Veterans’ Administrator’] 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 iegislated
that an employer’s liability under the DBA “shall be

23

exclusive and in place of all other liability,” 42 U.S.C.
§ 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. Ashcroft, 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).”) (citing three
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

. Indeed, as a matter of federalism, see Tarble’s Case, 80 US. 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 of the contractor component of the “Total Force.”

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 is
invoked, a claim of preclusion faces an especially high
hurdle.”); Paluca v. Sec’y of Labor, 813 F.2d 524, 526 (Ist
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 (Sth 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) (&fAt+s a
‘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 the
“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

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).”). The
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
government. 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 of
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-

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. Tex. Sept. 28, 2006); Smith vy.
Halliburton Co., No. H-06-0462, 2006 WL 2521326, at *2~7
(S.D. Tex. 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.

CONCLUSION

For the foregoing reasons, the petition should be granted.
In the alternative, this Court should invite the views of the

Solicitor General.

MICHAEL P. SOCARRAS

M. MILLER BAKER

MICHAEL S. NADEI

MCDERMOTT WILL & EMERY LLP
600 Thirteenth Street, N.W.
Washington, DC 20005

(202) 756-8000

JOSEPH E. SCHMITZ

THE PRINCE GROUP

1650 Tysons Boulevard, Suite 800
McLean, VA 22102

(703) 663-6997

KIRK G. WARNER

SMITH, ANDERSON, BLOUNT,
DORSETT, MITCHELL & JERNIGAN
P.O. Box 261!

Raleigh, NC 27602

(919) 821-1220

Respectfully submitted,

KENNETH W. STARR
Counsel of Record

RICK RICHMOND

KIRKLAND & ELLIS LLP

777 South Figueroa Street

Los Angeles, CA 90017
213) 680-8400

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.

APPENDIX

App. la

UNITED STATES COURT OF APPEALS
FOURTH CIRCUIT

In Re: BLACKWATER SECURITY CONSULTING, LLC,
a Delaware Limited Liability Company; BLACKWATER
LODGE AND TRAINING CENTER, INCORPORATED, a
Delaware Corporation,

Petitioners.

IN RE: JUSTIN L. MCQUOWN,
Petitioner.

RICHARD P. NORDAN, as Ancillary Administrator for the

separate Estates of Stephen S. Helvenston, Mike R. Teague,

Jerko Gerald Zovko and Wesley J.K. Batalona,
Plaintiff-Appellee,

and

ESTATE OF STEPHEN S. HELVENSTON;
ESTATE OF MIKE R. TEAGUE;
ESTATE OF JERKO GERALD ZOVKO;
ESTATE OF WESLEY J.K. BATALONA,
Plaintiffs,

¥.

BLACKWATER SECURITY CONSULTING, LLC, a
Delaware Limited Liability Company; BLACKWATER
LODGE AND TRAINING CENTER, INCORPORATED, a
Delaware Corporation,

Defendants-Appellants,

and

App. 2a

JUSTIN L. MCQUOWN, an individual; THOMAS
POWELL,
Defendants.

RICHARD P. NORDAN, as Ancillary Administrator for the

separate Estates of Stephen S. Helvenston, Mike R. Teague,

Jerko Gerald Zovko and Wesley J.K. Batalona,
Plaintiff-Appellee,

and

ESTATE OF STEPHEN S. HELVENSTON; ESTATE OF

MIKE R. TEAGUE; ESTATE OF JERKO GERALD

ZOVKO; ESTATE OF WESLEY LK. BATALONA,
Plaintiffs,

V.

JUSTIN L. MCQUOWN, an individual, Defendant-
Appellant, and BLACKWATER SECURITY
CONSULTING, LLC, a Delaware Limited Liability
Company; BLACKWATER LODGE AND TRAINING
CENTER, INCORPORATED, a Delaware Corporation;
THOMAS POWELL,

Defendants.

No. 05-1949
460 F.3d 576

Decided August 24, 2006

Before SHEDD and DUNCAN, Circuit Judges, and JONES,
District Judge.

DUNCAN, Circuit Judge:

App. 3a

This appeal and petition for writ of mandamus require us
to consider the extent to which we can review a district court
order remanding a case to state court for lack of subject
matter jurisdiction. Concluding that the limited exceptions
to the congressional proscription of our ability to review
such orders are not applicable here, we dismiss the appeal for
lack of jurisdiction and decline to issue a writ of mandamus.

I.

. Stephen S. Helvenston, Mike R. Teague, Jerko Gerald
Zovko, and Wesley J.K. Batalona (collectively, “decedents”’)
entered into independent contractor service agreements with
Blackwater Security Consulting, L.L.C., and Blackwater
Lodge and _ Training enter, Inc., (collectively,
“Blackwater”) to provide services in support of Blackwater’s
contracts with third parties in need of security or logistical

support. Blackwater assigned the decedents to support its
venture with Regency Hotel and Hospital Company
(“Regency”) to provide security to ESS Support Services
Worldwide, Eurest Support Services (Cyprus) International,
Ltd. (“ESS”). ESS had an agreement to provide catering,
build, and design support to the defense contractor firm
Kellogg, Brown & Root, which, in turn, had arranged with
the United States Armed Forces to provide services in
support of its operations in Iraq.

According to the complaint, at the time the decedents
entered into the independent contractor service agreements
on or about March 25, 2004, Blackwater represented that
certain precautionary measures would be taken with respect
to the performance of their security functions in Iraq. For
example, they were told that each mission would be handled
by a team of no fewer than six members, including a driver,
navigator, and rear gunner, and would be performed in
armored vehicles; they would have at least twenty-one days

App. 4a

prior to the start of a mission to become familiar with the
area and routes to be traveled; and they would have an
opportunity to do a pre-trip inspection of their anticipated
route.

Instead, the complaint alleges, Blackwater failed to
provide the decedents with the armored vehicles, equipment,
personnel, weapons, maps, and other information that it had
promised, or with the necessary lead time in which to
familiarize themselves with the area. On March 30, 2004,
the decedents’ supervisor, Justin McQuown, directed them to
escort three ESS flatbed trucks carrying food supplies to a
United States Army base known as Camp Ridgeway.
Lacking the necessary personnel and logistical support, the
decedents ultimately became lost in the city of Fallujah.
Armed insurgents ambushed the convoy; murdered the
decedents; and beat, burned, and dismembered their remains.
Two of the mutilated bodies were hung from a bridge.

Richard Nordan, in his capacity as administrator for the
decedents’ estates, sued Blackwater and McQuown
(hereinafter referred to collectively as “Blackwater”) in the
Superior Court of Wake County, North Carolina, alleging
causes of action for wrongful death and fraud under North
Carolina tort law. Blackwater removed Nordan’s action to
federal district court. It asserted that 28 U.S.C. § 1441(a)
(2000) permitted removal both because the Defense Base
Act (“DBA”), 42 U.S.C. §§ 1651-1654 (2000), completely
preempted Nordan’s state-law claims, and because the issues
in the case presented unique federal interests sufficient to
create a federal question. Once in federal court, Blackwater
moved to dismiss the case, arguing that the district court
lacked subject matter jurisdiction because the DBA covered
Nordan’s claims and, therefore, that Nordan could litigate his
claims only before the Department of Labor, which decides
DBA claims in the first instance.

App. 5a

The district court first considered whether Blackwater
had met its burden of establishing federal removal
jurisdiction. Nordan v. Blackwater Sec. Consulting, 382 F.
Supp. 2d 801, 806 (E.D.N.C. 2005). In concluding that
Blackwater had not met this burden, the district court
rejected both of Blackwater’s asserted bases for removal
jurisdiction. The court reasoned that, because the DBA
grants the Secretary of Labor exclusive original jurisdiction
over DBA claims, the statute does not completely preempt
state-law claims; the hallmark of complete preemption, the
district court concluded, is the presence of original
jurisdiction over the matter in federal district court. /d. at
807-10 (citing Lontz v. Tharp, 413 F.3d 435, 442-43 (4th Cir.
2005)). Further, the court determined that Blackwater’s
assertion of removal jurisdiction by way of a unique federal
interest in the adjudication of Nordan’s claims “assume[d]
the very conclusion which [the] court lack[ed] jurisdiction to
reach, namely that the decedents in this case are covered as
employees under the DBA.” /d. at 813.

Finding no basis for removal, the district court concluded
that it lacked subject matter jurisdiction and, citing 28 U.S.C.
§ 1447(c) (2000),' determined that it must remand the case.
Nordan, 382 F. Supp. 2d at 813-14. Although Blackwater
encouraged the district court to remedy its lack of
jurisdiction by dismissing the case rather than remanding it,
the district court further concluded that it lacked the
authority to dismiss. The court reasoned that federal district
courts play no role in the adjudication or review of DBA

Section 1447(c) provides: “If at any time before final
judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded. . . . The State court may
thereupon proceed with such case.”

App. 6a

claims? and, therefore, that it had no jurisdiction to decide
whether the DBA applied to Nordan’s claims. Jd. at 814.
The district court thus remanded the case to state court
without reaching the merits of Blackwater’s motion to
dismiss.

Blackwater now seeks review, via both an ordinary
appeal and a petition for a writ of mandamus. For the
reasons that follow, we hold that we lack jurisdiction to hear
the appeal and decline to issue a writ of mandamus.”

II.

We first address the issue of our authority to review this
case by appeal. Blackwater faces a formidable hurdle in this
regard because Congress has severely circumscribed federal
appellate review of certain orders remanding a case to the
state court from which it was removed. We begin our
analysis with a review of the body of law related to and
developed from that jurisdictional circumscription. We then
address whether the principles inherent in that body of law
allow us to exercise appellate jurisdiction in this case.

* 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.
See 42 U.S.C. § 1653(b) (2000); see also Lee v. Boeing Co., Inc.,
123 F.3d 801, 803-05 (4th Cir. 1997) (describing agency and
judicial review of DBA claims).

> Nordan moved to strike a portion of the record that
Blackwater submitted on appeal. Because we dismiss the appeal
and the petition for lack of jurisdiction, we deny this motion as
moot.

The legal principles that govern appellate jurisdiction in
this case derive from Congress’s limitation on our authority
to review remand orders. A district court order “remanding a
case to the State court from which it was removed is not
reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d)
(2000). This limitation on review applies even if the remand
order is “manifestly, inarguably erroneous.” Mangold vy.
Analytic Servs., Inc., 77 F.3d 1442, 1450 (4th Cir. 1996)
(Phillips, J., specially concurring and delivering the opinion
of the court on the issue of subject matter jurisdiction) (citing
Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723; 97 S. Ct. 1439, 52
L. Ed. 2d 1 (1977) (per curiam)). If the plain language of the
Statute were all that we had to consult, we might not tarry
long with the notion that we could entertain a review of the
merits of this case. Several cases, however, provide for
limited exceptions to the reach of § 1447(d).°

* The full text of § 1447(d) is as follows:
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.
> In addition to the judicially developed exceptions upon
which we focus today, § 1447(d) itself permits review of a remand
order in a case removed to federal court pursuant to 28 U.S.C. §
1443 (2000), which concerns removal of state civil and criminal
actions involving civil rights claims. In addition, a separate statute
allows review of remand orders in cases concerning certain land
restrictions applicable to the Five Civilized Tribes of Oklahoma.
See Act of Aug. 4, 1947, ch. 458, sec. 3(c), 61 Stat. 731, 732, 25
U.S.C. § 355 note (2000); see also 28 U.S.C. § 1447 note (2000)

App. 8a

First, the Supreme Court has interpreted § 1447(d) to
prohibit review only when the order of remand was based
upon § 1447(c), which requires remand when the district
court determines that it lacks subject matter jurisdiction. See
Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 346,
96 S. Ct. 584, 46 L. Ed. 2d 542 (1976) (“{O]nly remand
orders issued under § 1447(c) and invoking the grounds
specified therein . .. are immune from review under §
1447(d).”), overruled on other grounds by Quackenbush v.
Allstate Ins. Co., 517 U.S. 706, 714-15, 116 S. Ct. 1712, 135
L. Ed. 2d 1 (1996).

Second, § 1447(d) does not prohibit review of a
collateral decision that is severable from the remand order.
See City of Waco v. U.S. Fid. & Guar. Co., 293 U.S. 140,
143, 55 S. Ct. 6, 79 L. Ed. 244 (1934) (holding § 1447(d)
inapplicable to the portion of a remand order that dismissed a
cross-claim because the dismissal “in logic and in fact... .
preceded [the order] of remand and was made by the District
Court while it had control of the cause .. . . [A]nd, if not
reversed or set aside, [the dismissal] is conclusive upon the
petitioner”); see also Nutter v. Monongahela Power Co., 4
F.3d 319, 321 (4th Cir. 1993) (“[W]here portions of a
remand order are ‘in logic and in fact’ severable from the
court’s determinations regarding remand, we may review the
severable portions of the order on appeal.”) (citing Waco,
293 U.S. at 143).

Finally, § 1447(d) does not prohibit review of a remand
order if that order exceeds the scope of the district court’s
authority. See Thermtron, 423 U.S. at 351 (holding that §
1447(d) does not bar review of a remand order based on

(Exception to Subsection (d)). Neither statutory provision is at
issue in this case.

App. 9a

“grounds that [the district court] had no authority to
consider” because such action “exceed[s] [the court’s]
statutorily defined power”); Borneman v. United States, 213
F.3d 819, 826 (4th Cir. 2000) (“ § 1447(d) prohibits review
of district courts’ determinations of whether jurisdictional
statutes have been satisfied, not review of determinations
where district courts exceed their jurisdictional authority”)
(citing Thermtron, 423 U.S. at 351). The issue before us is
whether one of these limited exceptions to the broad
jurisdictional proscription of § 1447(d) applies to the district
court’s actions in this case.

2.

In order to determine whether an exception to § 1447(d)
allows us to exercise appellate jurisdiction in this case, we
draw from a related body of statutory text and jurisprudence
governing removal of cases from state court to federal
district court. Except as federal law may otherwise provide,
when a defendant removes a state civil action to federal
district court, federal removal jurisdiction exists if the action
is one “of which the district courts of the United States have
original jurisdiction.” § 1441(a). Among other categories of
cases, the federal district courts possess original jurisdiction
over civil cases raising federal questions, which are “all civil
actions arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331 (2000). Removal
jurisdiction is not a favored construction; we construe it
strictly in light of the federalism concerns inherent in that
form of federal jurisdiction. See Lontz, 413 F.3d at 440. The
party seeking removal bears the burden of demonstrating that
removal jurisdiction is proper. See Mulcahey v. Columbia
Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).

Under what has become known as the well-pleaded
complaint rule, § 1331 federal question jurisdiction is limited

App. 10a

to actions in which the plaintiff's well-pleaded complaint
raises an issue of federal law; actions in which defendants
merely claim a substantive federal defense to a state-law
claim do not raise a federal question. See Louisville &
Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S. Ct.
42, 53 L. Ed. 126 (1908). In other words, a defendant may
not defend his way into federal court because a federal
defense does not create a federal question under § 1331.

The doctrine of complete preemption provides a
corollary to the well-pleaded complaint rule. This doctrine
recognizes that some federal laws evince such a strong
federal interest that, when : they apply to the facts
underpinning the plaintiff's state-law claim, they convert that
claim into one arising under federal law. See. é.g.,
Caterpillar, Inc. v. Williams, 482 U.S. 386, 393, 107 S. Ct.
2425, 96 L. Ed. 2d 318 (1987). Because complete
preemption transforms a state-law claim into one arising
under federal law, “the well pleaded complaint rule is
satisfied” even though the complainant never intended to
raise an issue of federal law. Lontz, 413 F.3d at 441.
However, “the sine qua non of complete preemption is a
preexisting federal cause of action that can be brought in the
district courts. . . . Congress’s allocation of authority to an
agency and away from district courts defeats a complete
preemption claim... .” Jd. at 442-43. The doctrine of
complete preemption, therefore, concerns itself with the
uniquely jurisdictional inquiry into whether a purportedly
State-law claim actually arises under federal law so as to
create federal jurisdiction over that claim.

By contrast, under the principles of “ordinary”
preemption, some federal laws may simply provide cither a
substantive defense to a plaintiff's state-law claims or a right
to adjudication of those claims in a federal administrative
forum or according to a federal scheme. See generally id. at

App. lla

440. “Complete preemption is a jurisdictional doctrine,
while ordinary preemption simply declares the primacy of
federal law, regardless of the forum or the claim.” /d.
(internal quotation marks and citation omitted). The
presence of ordinary federal preemption thus does not
provide a basis for federal question jurisdiction, and, in a
case removed from state court on the basis of federal
question jurisdiction, is relevant only after the district court
has determined that removal was proper and that it has
subject matter jurisdiction over the case.

B.

We now turn our attention to the district court’s actions in
this case to determine whether § 1447(d) removes our ability
to hear it.

As we have explained, § 1447(d) bars appellate review of a
remand order only if that order was issued pursuant to §
1447(c)’s instruction to remand removed cases over which
the district court possesses no subject matter jurisdiction.
See Thermtron, 423 U.S. at 346. However, a district court’s
mere citation to § 1447(c) is insufficient to bring a remand
order within the purview of that provision. We must instead
look to the substantive reasoning behind the order to
determine whether it was issued based upon the district
court’s perception that it lacked subject matter jurisdiction.
See, e.g., Borneman, 213 F.3d at 824-25 (“Whether a district
court’s remand order is reviewable under § 1447(d) is not
determined by whether the order explicitly cites § 1447(c) or
not. The bar of § 1447(d) applies to any order invoking
substantively one of the grounds specified in § 1447(c).”)
(internal citation omitted).

App. 12a

The district court’s remand order in this case clearly falls
within the ambit of § 1447(c)’s requirement of remand in the
absence of subject matter jurisdiction. The court first
concluded that the DBA did not completely preempt
overlapping state law and thus did not create a federal
question. Nordan, 382 F. Supp. 2d at 807-11. It then
reasoned that Blackwater’s assertion of a unique federal
interest in the adjudication of Nordan’s claims likewise did
not confer federal removal jurisdiction. Jd. at 811-13. The
district court cited the untenability of these two suggested
jurisdictional bases as the source of its decision to remand
the case. “[T]his court lacks subject matter jurisdiction over
this cause of action . . . . [W]here the court finds no basis for
subject matter jurisdiction, § 1447(c) compels the court to
remand this action to state court. . . . Accordingly .. .
remand, rather than dismissal for lack of subject matter
jurisdiction, is proper.” /d. at 813-14.

To conclude that the remand order was issued pursuant to §
1447(c), we need not delve into whether the district court
was correct to hold that it lacked subject matter jurisdiction
over the removed action. Rather, an order is issued pursuant
to section § 1447(c) if the district court perceived that it was
without jurisdiction over the cause. See, e.g., Mangold, 77
F.3d at 1450 (holding that courts must “look past
contextually ambiguous allusions and even specific citations
to § 1447(c) to determine by independent review of the
record the actual grounds or basis ‘pon which the district
court considered it was empo ered to remand”).
Furthermore, as we have noted, § 1447(d)’s jurisdictional bar
app es with equal force to unassailably correct and
“manifestly, inarguably erroneous” orders of remand. /d.
Because the reasoning behind the district court’s remand
order in this case indicates the court’s belief that it lacked
subject matter jurisdiction upon removal, we conclude that
the remand order was issued pursuant to § 1447(c) and,

App. 13a

consequently, that § 1447(d) prohibits our review of that
order.

2.

Having determined that the order before us was, indeed,
predicated upon § 1447(c), and therefore within the purview
of § 1447(d), we turn now to a consideration of whether one
of the other judicially created exceptions to § 1447(d)
applies. The severable order exception to § 1447(d) set forth
in Waco allows appellate review of certain distinct
component decisions that may be issued as part of a remand
order. We first discuss the contours of the Waco severable
order exception and then consider whether Waco permits
review of two constituent aspects of the district court’s
remand order.

The Supreme Court in Waco construed § 1447(d) not to
prohibit categorically appeals of certain orders in cases that
had been remanded to state court. In that case, the district
court dismissed the claim upon which the court’s removal
jurisdiction had been based; it then remanded the case to the
State court because, once the claim was no longer part of the
case, no basis for federal jurisdiction existed. The Supreme
Court held that § 1447(d)’s prohibition of appellate review
did not apply to the order dismissing the claim, even though
it clearly applied to the remand order itself. Waco, 293 U.S.
at 143-44. The order dismissing the claim was appealable,
the Court reasoned, because “in logic and in fact the decree
of dismissal preceded that of remand and was made by the
District Court while it had control of the cause. Indisputably
this order is the subject of an appeal; and, if not reversed or
sect aside, is conclusive upon the petitioner.” /d. at 143. The
Court concluded that, though action on the order of dismissal

App. 14a

“cannot affect the order of remand .. . it will at least, if the
dismissal of the petitioner’s complaint was erroneous, remit
the entire controversy . . . to the state court... .” Jd. at 143-
44.

This circuit has construed Waco to require, at a
minimum, that the purportedly reviewable order have a
conclusive effect upon the parties’ substantive rights. See
Nutter, 4 F.3d at 321. We have interpreted this
conclusiveness requirement to mean that the challenged
order must have a preclusive effect in subsequent
proceedings. See id.

As the Supreme Court recently reiterated, Waco also
requires that the reviewable decision be able to be
“disaggregated” from the remand order itself because “the

order of remand cannot be affected notwithstanding any
reversal of a separate order.” Kircher v. Putnam Funds
Trust, 126 S. Ct. 2145, 2156 n.13, 165 L. Ed. 2d 92 (2006)
(internal quotation marks and citation omitted). Similarly,
other circuits have had occasion to recognize as a key
component of Waco the requirement that the reviewable
decision be_logically and factually precedent to the remand
order. See, e.g., Carlson v. Arrowhead Concrete Works,
Inc., 445 F.3d 1046, 1052 (8th Cir. 2006) (holding that Waco
requires that the reviewed decision be both conclusive on the
parties and logically and factually precedent to the remand
order); Hernandez v. Seminole County, 334 F.3d 1233, 1241
(11th Cir. 2003) (construing Waco to require the challenged
decision to be both conclusive on the parties and logically
and factually precedent to the remand order); Christopher v.
Stanley-Bostitch, Inc., 240 F.3d 95, 99 (1st Cir. 2001)
(holding Waco applicable to a decision that was not
“inextricably intertwined with” or essential to the remand
order); Carr v. Am. Red Cross, 17 F.3d 671, 675 (3d Cir.
1994) (explaining that Waco requires the reviewed portion of

App. 15a

a remand order to be “both logically precedent to, and
separable from, the remand decision” and measuring the
severability of an issue by whether the district court reached
it as part of an inquiry into the existence of subject matter
jurisdiction); see also Kimbro v. Velten, 308 U.S. App. D.C.
134, 30 F.3d 1501, 1503 (D.C. Cir. 1994) (concluding that
Waco applies to decisions that “logically precede[] the
question of remand”) (internal quotation marks and citation
omitted). Our precedent also suggests that Waco applies to
orders that are logically and factually “antecedent” to the
order of remand. See Borneman, 213 F.3d at 825 (holding §
1447(d) inapplicable to two “antecedent components of the
district court’s remand order”). We therefore conclude that
logical and factual severability, along with conclusiveness,
are central requirements of Waco’s exception to § 1447(d).

Blackwater argues that Waco permits appellate review of
the district court’s choice of remedy for its lack of removal
jurisdiction. Specifically, the district court denied as moot
Blackwater’s motion to dismiss for lack of jurisdiction,
choosing instead to cure its lack of removal jurisdiction by
remanding Nordan’s claims to state court. According to
Blackwater, the district court’s denial of its motion to
dismiss is reviewable because it conclusively decided
Blackwater’s assertion that the DBA and the Constitution’s
foreign affairs and war powers clauses convey upon it an
immunity from suit in either state or federal court. This
position relies heavily on our decision in Shives v. CSY
Transp., Inc. (In re CSX Transp., Inc.), 151 F.3d 164 (4th
Cir. 1998). For the reasons that follow, its reliance is
misplaced.

App. 16a

Shives concerned a railroad employee’s action in state
court under the Federal Employers’ Liability Act (“FELA”),
45 US.C.A. §§ 51-60 (West 1986 & Supp. 2006), against his
employer for injuries that he had sustained while unloading a
train at a marine terminal. The employer removed the case
to federal court, claiming that the case raised a federal
question. The employer then moved to dismiss the case,
arguing that, because the employee had been injured while
performing maritime work, he could receive compensation
for that injury only by filing a claim with the United States
Department of Labor under the Longshore and Harbor
Workers Compensation Act (“LHWCA”), 33 U.S.C.A. §§
901-950 (West 2001 & Supp. 2006). Because 28 U.S.C. §
1445(a) (2000) prohibited removal of FELA claims that had
been initiated in state court, the district court first had to
determine whether the FELA or the LHWCA covered the
employee’s claims. The district court concluded that the

employee had not been engaged in maritime work and,
therefore, that the LHWCA did not apply. Because the
LHWCA did not apply, the court concluded, the claim had
been properly filed under the FELA. The district court then
remanded the case to state court because § 1445(a)
prohibited removal of the case. |

“(With some delicacy,” we exercised appellate
jurisdiction of the employer’s appeal of the remand order.
Shives, 151 F.3d at 168. We first concluded that the remand
was not based on the district court’s perceived lack of
subject matter jurisdiction and, therefore, that it had not been
issued pursuant to § 1447(c). /d. at 167. The district court,
we reasoned, had not perceived that it lacked subject matter
jurisdiction over the employee’s FELA claim because federal
and state courts have concurrent original jurisdiction over
such claims. /d. Instead, it had remanded the case because §
1445(a) prohibited removal in that instance. /d.

App. 17a

Alternatively, we concluded that the district court’s
decision concerning the LHWCA’s applicability to the
employee’s claim was a “conceptual antecedent” to the order
of remand. /d. We noted that letting the remand order stand
would

commit to the state courts the decision of whether the
LHWCA provided coverage to the employee. To follow
that course would thus deprive the federal courts of their
proper role in resolving this important issue and would
circumvent Congress’ intent that LHWCA coverage
issues be resolved in the first instance by the Department
of Labor and ultimately in the federal courts of appeals.

Id.

The procedural posture of this case distinguishes it from
Shives in two critical particulars. First, as already noted, in
Shives we exercised appellate jurisdiction over an appeal of
a remand order that we somewhat hesitantly construed to be
predicated upon § 1445(a)’s prohibition against removal of
state-filed FELA claims, not upon § 1447(c)’s mandate to
remand in the absence of subject matter jurisdiction. See id.
at 167-68. Because the Supreme Court has clarified that §
1447(d)’s restriction on review applies only to remand orders
made pursuant to § 1447(c), see Thermtron, 423 U.S. at 346,
we concluded that § 1447(d) did not prohibit appellate
jurisdiction, see Shives, 151 F.3d at 167. In other words,
appellate jurisdiction existed in Shives because the district
court’s order did not rest upon lack of subject matter
jurisdiction, the ground set forth in § 1447(c).° By contrast,

° We drew a similar conclusion in Mangold, 77 F.3d at 1452, a
decision that Blackwater misguidedly cites to ameliorate its
jurisdictional position in this case. In that case, we concluded that
§ 1447(d) did not prohibit appellate review of the district court’s
remand order because that order did not arise from the district

App. 18a

as we have explained, the district court remanded this case
under § 1447(c) for lack of subject matter jurisdiction.

The second distinction that defeats Blackwater’s reliance
on Shives to support appellate jurisdiction in this case is the
existence in Shives of a “conceptual antecedent” to the
district court’s remand order. As we have noted, a key
component of Waco’s collateral order exception is that the
challenged order “in logic and in fact . . . preceded that of
remand.” Waco, 293 U.S. at 143. The district court in
Shives faced, on the one hand, § 1445(a), which prohibited
removal of state-filed FELA claims, and, on the other hand, a
notice of removal claiming that the plaintiffs claim was not
brought under the FELA but was instead preempted by the
LHWCA. We concluded in Shives that the district court had
remanded the case because § 1445(a) prohibited removal of
FELA claims. See 151 F.3d at 167. In order to reach its
conclusion that § 1445(a) prohibited removal, the district
court in Shives had to determine whether the LHWCA
applied to the employee’s claim. If the LHWCA was
applicable, it would erase § 1445(a)’s protection of state-
filed FELA claims from removal. Shives thus presented the
court of appeals with an LHWCA coverage decision by the
district court, a distinct determination that was not entangled
with the jurisdictional analysis supporting the remand order.
Shives itself does not cite to Waco or explain how the
LHWCA coverage decision at issue in that case satisfied
Waco’s severability standard. It is nevertheless clear that
we took appellate jurisdiction in Shives because the district
court made a decision that was a “conceptual antecedent” to
the remand order. That conceptual antecedent took the form
of the district court’s substantive ruling that, because the
plaintiff had not been engaged in maritime employment, the

court’s perception that it lacked subject matter jurisdiction, and
thus was not issued pursuant to § 1447(c). /d.

App. 19a

application of the LHWCA had not been triggered in that
case. See id.

No such conceptual antecedent exists here. The district
court made no DBA coverage decision that might form the
basis of our review. In Shives, the district court reached the
issue of the LHWCA’s application to the plaintiff's claim,
but not because it needed help deciding how to remedy its
lack of removal jurisdiction. Rather, a determination of
LHWCA coverage in Shives was a necessary step in the
district court’s inquiry into the permissibility of removal.
Here, the district court appropriately did not decide whether
the DBA applied to Nordan’s claims because such an inquiry
was both unnecessary to its jurisdictional analysis and
unreachable on the merits once the court had determined that
removal jurisdiction was absent.’

The fact that the district court’s order made no
determination of DBA coverage has significance beyond
serving to distinguish the facts before us from those in
Shives. It also supports our conclusion that the denial of
Blackwater’s motion to dismiss was not conclusive upon its
substantive rights. We note again the caution in Nutter that,
for the purpose of determining whether an order meets the
criteria of Waco, “[a]t a minimum, the challenged portion of
the order must affect the parties’ substantive rights” by
having a preclusive effect in subsequent proceedings.
Nutter, 4 F.3d at 321. Here, the district court made no
determination with respect to whether the DBA covered

’ Another case upon which Blackwater significantly relies is
also distinguishable on this basis. In Jamison v. Wiley, 14 F.3d
222, 233 (4th Cir. 1994), we concluded that Waco’s exception
permitted review of the district court’s refusal to substitute the
United States as a defendant. We so concluded because the district
court decided to deny substitution “before it decided to remand the
case to state court, while it still had control of the case.” /d.

App. 20a

Nordan’s claims. One of the first principles of preclusion,
however, is that the precluding order either actually
determined the issue sought to be precluded (in the case of
issue preclusion) or issued a final judgment on the merits (in
the case of claim preclusion). See, e.g., Martin v. Am.
Bancorporation Ret. Plan, 407 F.3d 643, 650, 653 (4th Cir.
2005). Therefore, neither the district court’s refusal to decide
whether the DBA applies to Nordan’s claims, nor its
concurrent conclusion that it lacked jurisdiction to reach the
merits of the case will have any preclusive effect on
Blackwater’s ability to assert in state court its arguments
concerning ordinary federal preemption.

We further note that remanding despite a potential
federal defense does not hamstring the litigation of that
defense in state court. In Lontz, 413 F.3d 435, we decided a
similar case in which the defendant had removed a state
labor dispute to federal court, claiming federal question
jurisdiction via complete preemption. The Lontz defendant
had claimed complete preemption on the theory that Sections
7 and 8 of the National Labor Relations Act (“NLRA”), 29
U.S.C. §§ 157-158 (2000), required resolution of certain
labor disputes before the National Labor Relations Board
(“NLRB”) rather than in state or federal court. We
concluded that the NLRA provisions do not completely
preempt state law and that the district court consequently
lacked federal question removal jurisdiction. Lontz, 413
F.3d at 442-43. We directed the district court to remand,
rather than dismiss, claims that, if the NLRA applied to
them, would not be justiciable in state court. See id. at 443-
44. We recognized in Lontz that, to the extent that the
NLRA applied to the plaintiff's claims, the statute entitled
the defendant to adjudication of those claims solely before
the NLRB. See id. Nevertheless, that possible entitlement
did not transform a defense of ordinary federal preemption
into a right to a federal forum in which to raise and litigate

App. 2la

that defense on the merits. Furthermore, “the futility of a
remand to [state court] does not provide an exception to the
plain meaning of § 1447(c).” Roach v. W. Va. Reg’l Jail &
Corr. Facility Auth., 74 F.3d 46, 49 (4th Cir. 1996). We
therefore see no reason why Blackwater’s possible
entitlement to adjudication before the Department of Labor
should allow it to characterize the district court’s denial of its
motion to dismiss as a conclusive denial of a substantive
right.

Finally, once a district court determines that it lacks
subject matter jurisdiction over a removed case, § 1447(c)
directs that the case “shall be remanded.” This mandate is so
clear that, once a district court has found that it lacks subject
matter jurisdiction in a removed case, no other fact-finding,
legal analysis, or exercise of judicial discretion is necessary
in order to follow the congressional directive; the decision to
remand a case to remedy a lack of subject matter jurisdiction
is purely ministerial. See Int’l Primate Prot. League v.
Adm 'rs of Tulane Educ. Fund, 500 U.S. 72, 89, 111 S. Ct.
1700, 114 L. Ed. 2d 134 (1991) (noting that § 1447(c) grants
“no discretion to dismiss rather than remand [a removed]
action” in which subject matter jurisdiction is lacking
(internal quotation marks and citation omitted)), superseded
on other grounds by 28 U.S.C. § 1442(a)(1) (2000). We
therefore conclude that the district court’s “decision” to
remand instead of dismiss is not only_not conclusive, but also
intimately enmeshed with and unseverable from the remand
order.

ll.

We similarly do not have jurisdiction under Waco’s
severable order exception to review the district court’s
conclusions that neither complete preemption nor a unique
federal interest created a federal question for the purposes of

App. 22a

removal. Our decision in Nutter, 4 F.3d 319, forecloses the
possibility.

The Nutter defendant had claimed that removal
jurisdiction was proper because two federal statutes
completely preempted the plaintiff's state-law claims and,
therefore, presented federal questions. The district court
rejected this complete preemption argument and remanded
the case to state court for lack of removal jurisdiction. We
concluded that this determination that the federal statutes did
not completely preempt Nutter’s state-law claims would
have no preclusive effect in subsequent proceedings and thus
that it was not a decision that was conclusive upon the
parties. /d. at 321-22.

Similarly here, the district court’s findings regarding
complete preemption could foreclose state-court litigation of
Blackwater’s DBA and constitutional claims only if
principles of preclusion prevented Blackwater from later
raising a defense of ordinary federal preemption. Here, as we
did in Nutter, we conclude that the district court’s finding
that complete preemption did not create federal removal
jurisdiction will have no preclusive effect on a subsequent
state-court defense of federal preemption. We conclude that
Nutter’s reasoning applies with equal force to the district
court’s companion conclusion that Blackwater’s asserted
unique federal interest could not convey federal removal
jurisdiction.

In addition, the district court’s complete preemption and
unique federal interest analysis cannot be disengaged from
the remand order itself. In Nutter, we concluded that the
district court’s complete preemption conclusion was
unseverable from its determination that it lacked removal
jurisdiction: “the [district] court’s findings regarding
preemption and jurisdiction are indistinguishable. The

App. 23a

preemption findings were merely subsidiary legal steps on
the way to its determination that the case was not properly
removed.” Jd. at 321 (internal quotation marks and citation
omitted). Indeed, the district court’s conclusions here with
respect to complete preemption and the presence of a unique
federal interest cannot be severed from the remand order, as
they are simply the necessary legal underpinning to the
court’s determination that the case was not properly
removed.®

* Blackwater additionally argues that it is the functional
equivalent of a federal officer and that removal jurisdiction
therefore existed in the district court under 28 U.S.C. § 1442(a)
(2000). Blackwater failed to raise this issue before the district
court. Citing 28 U.S.C. § 1653 (2000), Blackwater nevertheless
invites us to deem its notice of removal to be amended to include §
1442(a) as an asserted basis for removal, to interpret the district
court’s failure to consider that basis as severable from its remand
order under Waco, and thereby to create jurisdiction to review an
issue that the district court never considered.

While “[dJefective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate courts,” § 1653,
Blackwater did not simply omit to cite to § 1442(a). Rather, it
failed to argue before the district court that the provision supported
removal. This court generally declines to consider issues raised
for the first time on appeal absent a fundamental miscarriage of
justice. See, e.g., Muth v. United States, | F.3d 246. 250 (4th Cir.
1993). Even if it were appropriate, at this point, to deem an action
taken that Blackwater never sought to take, it would not cure
Blackwater’s waiver of the possible jurisdictional basis by failing
to marshal arguments and evidence in support of it below. See
Venkatraman v. REI Sys., Inc., 417 F.3d 418, 421-22 (4th Cir.
2005) (holding that a miscarriage of justice had not occurred, so as
to require appellate review, when the district court failed to
consider a cause of action not presented to it). We therefore do
not consider whether § 1447(d) bars our review of this newly
raised issue.

As we have explained, § 1447(d) also does not apply to
remand orders based upon factors that the district court was
not statutorily authorized to consider. See Thermtron, 423
U.S. at 351. A district court exceeds its statutory authority
when it remands a case “on grounds that seem justifiable to
[the court] but which are not recognized by the controlling
statute.” Jd. For example, in Thermtron the Supreme Court
held that § 1447(d) does not prohibit review of a remand
order based on the district court’s assessment that its docket
was too crowded to hear the case. /d.

Blackwater argues that the court exceeded its authority
by remanding the case instead of dismissing it. The district
court declined to dismiss the case as an alternative to remand
because it determined that it did not have the authority to
decide whether the DBA applied~to Nordan’s claims.
Nordan, 382 F. Supp. 2d at 814. It based this determination
upon the erroneous belief that district courts play no role in
the federal judicial review of DBA claims.’ Jd. Blackwater
claims that this error concerning the pipeline of review of
DBA claims demonstrates that the district court exceeded its
authority by remanding and that the order is therefore not
subject to § 1447(d)’s prohibition of review. It contends that
the district court’s remand order had nothing to do with its

” As we have noted, 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. See 42 U.S.C. §
1653(b) (2000); see also Lee v. Boeing Co., Inc., 123 F.3d
801, 803-05 (4th Cir. 1997) (describing agency and judicial
review of DBA claims).

App. 25a

stated lack of removal jurisdiction and was instead based on
an erroneous interpretation of the DBA’s judicial review
provisions.

The district court did not remand on. statutorily
unauthorized grounds. Rather, as we have already explained,
the remand order was based upon the district court’s
judgment that removal jurisdiction was not present. Of
course, we need look no further than § 1447(c) to conclude
that Congress has not only authorized remand under such a
circumstance, but also emphatically required it. The district
court’s error concerning the mechanism of judicial review of
DBA claims is a non sequitur to its determination that
remand was necessary because it lacked subject matter
jurisdiction to reach any issue other than. the removability of
the action.

The correctness of the district court’s jurisdictional
analysis is irrelevant under § 1447(d). See Mangold, 77 F.3d
at 1450. If it were not, we could circumvent the statute
simply by declaring the remand order to be wrong. Such an
interpretation of § 1447(d) would eviscerate the
congressional policy of limiting litigation over the
procedural matters that give rise to remand orders. We also
need not decide whether, possessing a proper understanding
of the district court’s role in the judicial review of DBA
claims, the district court would have been correct to dismiss
the case rather than remand it. For the purposes of §
1447(d), the only relevant aspect of the district court’s
decision not to dismiss the case is that it was grounded upon
a perceived lack of subject matter jurisdiction to decide
DBA claims. The presence of an error in that analysis does
not change its jurisdictional character. Thermtron’s
exception to § 1447(d) for ultra vires remands thus does not
apply in this case.

Finally, Blackwater argues that § 1447(d) does not
prohibit appellate review in this case because the district
court’s decision to remand undermines the constitutional
sequestration of foreign affairs and war powers within the
political branches of the federal government, out of reach of
both the federal and the state judiciaries. Specifically, it
contends that:

Even if the DBA is not applicable, the constitutional
separation of powers would preclude judicial intrusion
into the manner in which the contractor component of the
American military deployment in Iraq is trained, armed,
and deployed. Decedents were performing a classic
military function -- providing an armed escort for a
supply convoy under orders to reach an Army base --
with authorization from the Office of the Secretary of
Defense that classified their missions as “official duties”
in support of the Coalition Provisional Authority.
Federal courts, and a fortiori state courts, may not impose
liability for casualties sustained in the battlefield in the
performance of these duties. A North Carolina trial court
may not adjudicate national political questions that the
Supreme Court has deemed non-justiciable by federal
courts.

Br. of Appellant pp. 10-11.

Blackwater overstates both the extent of our decision
today and the state of the record. What we have before us is
a complaint alleging that the decedents were independent
contractors working for a security company, a notice of
removal, a motion to dismiss, and a remand order. Without
intending to diminish the magnitude of the concerns that
Blackwater articulates, we are unprepared to say at this

App. 27a

juncture that the Constitution overrides Congress’s ability to
prescribe the limits of federal appellate jurisdiction in
matters such as these.

Blackwater’s argument that neither federal nor state
courts may decide decedents’ claims also proves too much.
Distilled to their essence, Blackwater’s arguments appear to
be that we must have jurisdiction because we have no
jurisdiction and that our founding document simultaneously
creates and prohibits jurisdiction in this case. Both
constitutional interpretations are too extravagantly recursive
for us to accept. It is, in fact, axiomatic under our federalist
system of government that state courts have the authority to
decide federal constitutional issues. Blackwater may assert
in state court, subject to review by the United States
Supreme Court, its defenses regarding the constitutional

exclusivity of a federal administrative remedy. As we
recently noted in Lontz, the ability of a state court “to
determine its own jurisdiction is a serious obligation, and not
something that federal courts may easily take for
themselves.” 413 F.3d at 442. For these reasons, we decline
to graft a new exception onto the already significantly
burdened text of § 1447(d).

ITT.

Blackwater alternatively claims that, even if § 1447(d)
prohibits appellate jurisdiction, we should issue a writ of
mandamus to the district court. We are unpersuaded.

We may issue a writ of mandamus if the petitioner has no
other adequate means to obtain relief to which there is a
“clear and indisputable” right. Media Gen. Operations, Inc.
v. Buchanan, 417 F.3d 424, 433 (4th Cir 2005). “Mandamus
is a drastic remedy to be invoked only in extraordinary
situations.” United States v. Moussaoui, 333 F.3d 509, 516

App. 28a

(4th Cir. 2003 (internal quotation marks and citation
omitted). Before we may determine whether Blackwater has
met these stringent requirements, however, we must first
inquire whether we have the authority to issue the writ.

A.

Congress’s restriction on review of remand orders
applies to review “on appeal or otherwise.” § 1447(d). The
Supreme Court has interpreted this language to forbid the use
of mandamus to circumvent the requirements of § 1447(d).
Thermtron, 423 U.S. at 343. Given that § 1447(d) precludes
our ability to review the district court’s order by appeal,
precedent dictates that it applies to preclude our review by
mandamus as well.

Further, given the state of the record at this juncture,
reflecting only cursory, untested factual allegations,
mandamus would still be inappropriate under these
circumstances. Mandamus is an extraordinary remedy
whose issuance depends upon the discretion of the court
considering the petition. United States ex rel. Rahman v.
Oncology Assocs., 198 F.3d 502, 511 (4th Cir. 1999) (citing
Kerr v. U.S. Dist. Court for the N. Dist. of Cal., 426 U.S.
394, 40396 S. Ct. 2119, 48 L. Ed. 2d 725 (1976)). As the
Supreme Court has instructed, we refrain from issuing a writ
of mandamus in all but the most extraordinary circumstances
to avoid circumventing congressional judgments about the
proper scope of appellate jurisdiction. See Kerr, 426 US. at
403 (“A judicial readiness to issue the writ of mandamus in
anything less than an extraordinary situation would run the
real risk of defeating the very policies sought to be furthered
by [the] judgment of Congress.”).

B.

App. 29a

Blackwater argues, however, that we may issue a writ of
mandamus because this case presents a conflict between §
1447(d) and the DBA. We held in Borneman that § 1447(d)
could not “be read categorically when other statutes in
tension with it are considered.” 213 F.3d at 825. Because
we interpreted the statute creating that tension to prohibit
absolutely the district court’s remand of the case, we
concluded that this tension alternatively permitted review via
mandamus. /d. at 826. However, the statute “in tension”
with § 1447(d) in Borneman declared that certain state-court
actions brought against federal employees “shall be
removed.” 28 U.S.C. § 2679(d)(2) (2000).'° That statute
thus directly and specifically addressed the removability of
the relevant class of claims and contained language that
channeled the district court’s authority to remand in such
cases. This absence of discretion to remand created the
tension of which we spoke in Borneman. 213 F.3d at 825.

By contrast, Blackwater has not identified any portion of the
DBA that similarly addresses either the removability to
federal district court of state court actions purportedly

'° The tension-creating statute in Borneman was a portion of the
Federal Employees Liability Reform and Tort Compensation Act of 1988
(“the Westfall Act”). Sections 5 and 6 of the Westfall Act, 28 U.S.C. §
2679(b), (d) (2000), give federal employees absolute immunity from
liability in tort for actions within the scope of their employment and
create a procedural mechanism by which this immunity is enforced.
When a federal employee is sued for a tort committed within the scope of
his or her employment, the Attorney General may issue a certification
that the facts underlying the claim did in fact arise within the scope of the
defendant’s federal employment. § 2679(d)(1)-(2). If such a certification
is issued in a case brought in state court, the case “shall be removed
without bond . . . to the [appropriate federal] district court,” where the
court must substitute the United States as the sole defendant. §
2679(d)(2).

App. 30a

preempted by the DBA or the district court’s peculiar lack of
discretion with respect to remand of such cases.''

C.

Blackwater next argues that we may issue a writ of
mandamus because the remand order risks unnecessary
tension between state and federal judicial fora on an
extraordinarily important question of federal law.
Blackwater attempts to characterize our opinions in
Mangold, Jamison, and Shives as authority for the
proposition that a writ of mandamus may issue despite the
applicability of § 1447(d) simply because the remand will
have the practical effect of allowing a state court to decide a
federal issue. Blackwater misapprehends the import of our
jurisprudence in two fundamental respects.

First, Blackwater contorts the meaning of Thermtron, in
which the Supreme Court held that federal appe!late courts
may review via mandamus remand orders inat are not
covered by § 1447(d). The Thermtron Court concluded that,
even though § 1447(d) did not apply to the remand order at
issue, the order was nevertheless unreviewable by appeal
because it was not a final judgment. 423 U.S. at 352-53,
overruled by Quackenbush, 517 U.S. at 714-15 (holding that
remand orders. are final for the purposes of appellate review).
Thermtron, therefore, established mandamus as a means io
circumven. not § 1447(d)’s proscription against review of
certain rernand orders, but the finality requirement of 28
U.S.C. § 1291 (2000). 423 U.S. at 352-53. Similarly, in
Mangold and Jamison, we referred to the use of the writ of
mandamus not as an end-run around § 1447(d) but as an

'' Indeed, the statutory authority under which Blackwater sought
removal in this case simply allows that state-court actions raising a
federal question “may be removed” to federal district court. § 1441(a).

App. 3la

alternative to satisfaction of § 1291 or membership in the
narrow class of collateral orders reviewable under Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.
Ct. 1221, 93 L. Ed. 1528 (1949). See Mangold, 77 F.3d at
1453; Jamison, 14 F.3d at 233-34. Because we conclude that
Blackwater has not overcome the hurdle of § 1447(d), we
have no occasion to consider whether the doctrine of finality
has been satisfied in this case.

Second, Blackwater fails to acknowledge a_ key
difference between the record before us today and the record
before us in Shives. We expressed in Shives some doubt
about our ability to exercise appellate jurisdiction, but
concluded that we could, in the alternative, issue a writ of
mandamus “[t]o avoid forfeiting the federal courts’ role of
reviewing LHWCA coverage issues.” 151 F.3d at 167. As
we have explained, in Shives, the district court decided
whether the employee’s claim, which had been filed in state
court under the FELA, was in fact covered by the LHWCA.
If the FELA provided the employee with his cause of action,
then removal was improper because § 1445(a) prohibits
removal of state-filed FELA claims. However, if the
LHWCA governed the claim instead, the employee could not
proceed under the FELA and § 1445(a) would not apply.
Determination of the applicability of the LHWCA to the
employee’s claims was, therefore, a critical step in the
district court’s inquiry into the propriety of removal in that
case. Furthermore, the parties had stipulated to the facts
relevant to the question of whether the LHWCA applied to
the employee’s claim. Shives thus presented the court of
appeals with an order in which the district court actually
decided, on an uncontested factual record and as part of its
inquiry into the permissibility of removal, whether the
LHWCA covered the plaintiff's claims.

App. 32a

Here, as we have explained, we have no coverage
question to review -- and rightfully so, as the district court
did not need to reach that issue as part of its removal
jurisdiction analysis -- nor do we have a factual record in
which the legally material facts are uncontested. Given the
preliminary nature of the proceedings below and the
resulting lack of adversarial development of the factual
allegations in this case, as well as the absence of an
independently reviewable order, mandamus is not only not
compelled by Shives but is also particularly inappropriate.
We therefore decline to expand Shives so far afield of the
original congressional intent embodied in § 1447(d).

IV.

For the foregoing reasons, we conclude that we lack
jurisdiction to hear this case and grant Nordan’s motion to

dismiss Blackwater’s appeal. We also deny Blackwater’s
petition for a writ of mandamus. Finally, we deny as moot
Nordan’s motion to strike.

APPEAL DISMISSED; PETITION FOR WRIT OF
MANDAMUS DENIED; MOTION TO STRIKE DENIED
AS MOOT

App. 33a

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA

RICHARD P. NORDAN, as Ancillary Administrator for the
separate Estates of STEPHEN S. HELVENSTON, MIKE R.
TEAGUE, JERKO GERALD ZOVKO and WESLEY J.K.
BATALONA, Plaintiff,

V.

BLACKWATER SECURITY CONSULTING, LLC;
BLACKWATER LODGE AND TRAINING CENTER,
INC., and JUSTIN L. McQUOWN, Defendants.

No. 5:05-CV-48-FL(1)
382 F. Supp. 2d 801

LOUISE W.. FLANNIGAN, Chief United States District
Judge:

This matter is before the court on defendants’ motions to
dismiss (DE #’s 5 & 8), and plaintiff's motion to remand
(DE # 12). Plaintiff responded in opposition to the motions
to dismiss, and defendants responded in opposition to the
motion to remand. In this posture, the issues raised are ripe
for ruling. For the reasons that follow, the court grants
plaintiff's motion to remand and denies as moot defendants’
motions to dismiss.

STATEMENT OF THE CASE

Plaintiff commenced this action on January 5, 2005, in
the Superior Court of Wake County, North Carolina,
asserting claims arising out of the deaths of four security
personnel assigned to work in the vicinity of Fallujah, Iraq.

App. 34a

In the complaint, plaintiff asserts two state law claims for
wrongful death and fraud.

On January 24, 2005, defendants filed a notice of
removal in this court asserting federal question jurisdiction
on the basis of “complete preemption” and “unique federal
interests.” (Notice of Removal, PP 34, 36). On January 31,
2005, defendants Blackwater Security Consulting, LLC, and
Blackwater Lodge and Training Center, Inc. (“Blackwater”)
filed a motion to dismiss, pursuant to Federal Rules of Civil
Procedure 12(b)(6) and 9(b), on the basis of a defense of
preemption under the Defense Base Act (“DBA”), and for
failure to state a claim. On February 1, 2005, defendant
Justin L. McQuown (“McQuown”) filed a motion to dismiss,
pursuant to Rule 12(b)(6), also asserting a defense of
preemption under the DBA or the related Longshore and
Harbor Workers’ Compensation Act (LHWCA).

On February 11, 2005, plaintiff filed a motion to remand
to state court, arguing that the complaint only asserts state
law claims, and that the DBA and LHWCA do not
completely preempt the asserted claims. On March 7, 2005,
defendants responded in opposition to the motion to remand,
attaching copies of contracts referenced in the complaint and
compensation benefits decisions by the United States
Department of Labor, pertaining to the decedents in this
action. Plaintiff replied on March 17, 2005, objecting to
consideration of evidence outside the complaint, and arguing
that neither complete preemption nor unique federal interests
served to establish jurisdiction in this case. Plaintiff also
responded to defendants’ separate motions to dismiss, to
which defendants have replied.

App. 35a

STATEMENT OF ALLEGED FACTS

The facts alleged in plaintiff's complaint may be
summarized as follows. On March 8, 2004, defendant
Blackwater, and another entity, Regency Hotel and Hospital
Company (“Regency”) entered into a contract (“security
contract”) with ESS Support Services Worldwide (“ESS”) to
provide security services “for ESS’s catering operations in
the Middle East.” (Compl., P21). On March 12, 2004,
defendant Blackwater entered into a sub-contract (“sub-
contract”) with Regency, which gave defendant Blackwater
control over security details. On March 25, 2004, Stephen S.
Helvenston, Mike R. Teague, Jerko Gerald Zovko and
Wesley J.K. Batalona (hereinafter the “decedents”) entered
into “Independent Contractor Service Agreements” with
Blackwater, which expressly incorporated the terms of the
sub-contract and contract.

At the time the decedents entered into the Independent
Contractor Service Agreements, Blackwater representatives
told them that they would be performing security services in
Iraq, with the following precautions mandated by the
primary contract:

A. “Each security mission would be handled by a team of no
less than six (6) members.”

B. “Each security mission would be performed in armored
vehicles.”

C. “Security teams would be comprised of at least two
armored vehicles, with at least three security contractors in
each vehicle, which would provide for a driver, a navigator,
and a rear-gunner.

App. 36a

D. “The rear-gunner would have a heavy automatic weapon,
such as a “SAW Mach 46,’ which could fire up to 850 rounds
per minute, allowing the gunner to fight off any attacks fro

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1918%3A1. Public record. Not legal advice.