PAPAK, United States Magistrate Judge:
Plaintiffs Rocky Bixby, Lawrence Roberta, Scott Ashby, Charles Ellis, and Matthew Hadley filed this action against defendants KBR, Inc., Kellogg, Brown & Root Service, Inc., KBR Technical Services, Inc., Overseas Administration Services, Ltd., and Service Employees International, Inc., on June 8, 2009. On September 8, 2009, plaintiffs amended their complaint, adding Carlos Avalos, Jesus Bruno, Colt Campredon, Stephen Foster, Byron Greer, Kelly Hafer, Dennis Jewell, Stephen Mueller, Vito Pacheco, John Rydquist, and Kevin Stanger as additional plaintiffs. Plaintiffs amended their pleading a second time on February 2, 2010, adding Ronald Bjerklund, Adanrolando Garcia, Brian Hedin, Lewis Martin, and Charles Seamon as additional plaintiffs. In their second amended complaint, plaintiffs allege defendants' liability for negligence and for fraud arising out of plaintiffs' exposure to sodium dichromate and resultant hexavalent chromium poisoning while stationed as Oregon National Guardsmen in Iraq and assigned to duty at the Qarmat Ali water plant in 2003.
Now before the court is defendants' motion (# 45) to dismiss for lack of subjectmatter jurisdiction. I have considered the motion, oral argument on behalf of the parties, and all of the pleadings on file. For the reasons set forth below, the motion is denied.
The federal courts are courts of limited jurisdiction. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005), citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). As such, the courts presume that causes of action "lie[] outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673; see also, e.g., Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir.2006).
A motion under Federal Civil Procedure Rule 12(b)(1) to dismiss for lack of subject-matter jurisdiction may be either "facial" or "factual." See Safe Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004), citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). In a facial attack on subject-matter jurisdiction, the moving party asserts that a plaintiff's allegations are insufficient on their face to invoke federal jurisdiction, whereas in a factual attack, the moving party disputes the factual allegations that, if true, would give rise to subject-matter jurisdiction. Where a defendant raises a facial challenge to subject-matter jurisdiction, the factual allegations of the complaint are presumed to be true, and the motion may be granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 1 (9th Cir.2003). By contrast, where a defendant raises a factual challenge to federal jurisdiction, "the
"Defective allegations of jurisdiction may be amended, upon terms, in trial or appellate courts." 28 U.S.C. § 1653. It is improper to dismiss an action based on a defective allegation of jurisdiction without leave to amend "unless it is clear, upon de novo review, that the complaint could not be saved by amendment." Snell v. Cleveland, Inc., 316 F.3d 822, 828 n. 6 (9th Cir.2002), citing Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir.2001).
The plaintiffs are current or former members of the Oregon National Guard who were allegedly injured by exposure to sodium dichromate while deployed in Kuwait and Iraq in 2003.
Defendant KBR is a corporation organized under the laws of the State of Delaware with its principal place of business in Houston, Texas. KBR is the corporate parent of defendants Kellogg Brown & Root Services, Inc., KBR Technical Services, Inc., Overseas Administration Services, Ltd., and Service Employees International, Inc.
Defendant Kellogg Brown & Root Services, Inc. ("KB & RS"), is a corporation organized under the laws of the State of Delaware with its principal place of business in Houston, Texas. KB & RS is the operating company and contracting entity for KBR's Government and Infrastructure ("G & I") business unit, which is an engineering, construction, and services contractor for public sector and private clients. This is the entity that directly contracted with the United States Government to provide logistical support to the military in the Middle East.
Defendant KBR Technical Services, Inc. ("KBRTS"), is a corporation organized under the laws of the State of Delaware with its principal place of business in Houston, Texas. KBRTS is an employment company that hires individuals who perform work domestically and abroad for KBR-related companies.
Defendant Overseas Administration Services, Ltd. ("OAS"), is a corporation organized under the laws of the Cayman Islands with its principal place of business in Dubai, United Arab Emirates. OAS is an employment company that hires employees who perform work abroad under contracts awarded by various clients to KBR-related companies.
Defendant Service Employees International, Inc. ("SEI"), is a corporation organized under the laws of the Cayman Islands with its principal place of business in Dubai, United Arab Emirates. SEI is an employment company that hires employees who perform work abroad under contracts awarded by various clients to KBR-related companies.
On March 3, 2003—before combat operations began in Iraq—the U.S. Army Corps of Engineers entered into Contract No. DACA63-03-D-0005 (also known as the "Restore Iraqi Oil" or "RIO" contract) with KBR. Under the RIO contract, KBR and/or its subsidiaries agreed to provide
Combat operations in Iraq began on March 19, 2003. On March 20, 2003, the Corps of Engineers issued "Task Order 3," which governed the services to be provided by KBR and its subsidiaries at Qarmat Ali and other facilities. Under Task Order 3, the U.S, military would declare a given worksite to be "benign" before KBR would begin operations there.
Task Order 3 provides that KBR was responsible for providing the Corps of Engineers with an environmental assessment of any facility in which it undertook operations. The obligation to provide such assessments included the obligation to report and evaluate any environmental hazards. According to Sumner's and Gen. Crear's deposition testimony, KBR was not merely permitted but required under Task Order 3 and the RIO contract to take all necessary precautions to safeguard personnel who might potentially be exposed to environmental hazards at worksites, including the wearing of protective gear and/or the closing down of operations at any unsafe site.
In addition, the RIO contract sets forth specific health and safety requirements KBR was required to comply with in performing services under the contract, including Overseas Environmental Baseline Guidance Document 4715.5-G (Mar. 2000), relevant OHSA standards, industry standards, CERCLA requirements, environmental assessment requirements, Army safety regulations, and Army Corps of Engineers safety standards. These requirements were never waived. The RIO contract further provides that the U.S. government will indemnify KBR for any claims involving bodily injury or death arising out of KBR's provision of services under the contract.
The United States military was involved in active, major combat operations in Iraq between March 19, 2003, and May 1, 2003, when then-President Bush declared an end to major combat activities in Iraq. The KBR defendants' involvement in work at Qarmat Ali began at some time after May 1, 2003.
KBR personnel apparently became aware of the presence of sodium dichromate
In May 2003, the Oregon National Guard was assigned to the Doha Operations Center in Kuwait. Beginning some time after May 1, 2003, the KBR defendants, or some of them, would contact the Doha Operations Center and request assistance with security issues on a regular, perhaps daily basis, in accordance with the provisions of the RIO contract and Task Order 3. On some occasions, members of the Oregon National Guard would receive security assignments to the Qarmat Ali water plant, where they were allegedly exposed to sodium dichromate.
In addition to preexisting sodium dichromate, it appears that defendants brought additional sodium dichromate to the site in June 2003, and continued storing and working with it at the site. In an internal email, a KBR employee discussed sodium dichromate contamination at Qarmat Ali in June 2003, and recommended that appropriate remedial measures be taken.
Defendants did not advise the Oregon National Guard of the presence of sodium dichromate at Qarmat Ali until August 12, 2003, when KBR issued an official report to the army conceding the chemical's presence. The report indicated that sodium dichromate at Qarmat Ali constituted a serious health hazard.
The Qarmat Ali site was shut down September 9, 2003. Plaintiffs have allegedly been seriously harmed by their exposure to sodium dichromate at the Qarmat Ali plant.
Before the court is defendants' challenge to the court's exercise of subject-matter jurisdiction over this action. Defendants argue that this court lacks subject-matter jurisdiction by operation of the political question doctrine, by operation of the so-called "government contractor defense," and by operation of the combat activities exception to the Federal Tort Claims Act.
Disputes involving certain political questions lie outside the jurisdiction of the federal courts. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); Corrie v. Caterpillar, 503 F.3d 974, 982 (9th Cir.2007). The Supreme Court has set forth six independent tests for determining whether the presence of a political question deprives the federal courts of jurisdiction over a particular case:
Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (emphasis supplied). The Supreme Court has opined that the six Baker tests are "probably listed in descending order of both importance and certainty." Vieth v. Jubelirer, 541 U.S. 267, 278, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004).
The Ninth Circuit applied the political question doctrine to bar a suit against a civilian manufacturer of bulldozers bought by the Israeli Defense Forces but paid for directly by the United States government and used by the IDF to bulldoze Palestinian homes in the West Bank. See Corrie, 503 F.3d 974. The Ninth Circuit reasoned as follows:
Id. at 982.
By contrast, in a case arising out of the shooting down of a civilian aircraft by a United States warship, Koohi v. United States, 976 F.2d 1328 (9th Cir.1992), the Ninth Circuit found the political question doctrine inapplicable, noting that "governmental operations are a traditional subject of damage actions in the federal courts," Koohi, 976 F.2d at 1331, and holding that "the lawsuit [was not] rendered judicially unmanageable because the challenged conduct took place as part of an authorized military operation" because "federal courts are capable of reviewing military decisions, particularly when those decisions cause injury to civilians," id. The court explained:
Id. at 1332.
In a case brought against a government contractor arising out of the deaths of three army soldiers while being transported by the contractor in Afghanistan in 2004, the Eleventh Circuit similarly found that the political question doctrine did not deprive the court of jurisdiction to hear the plaintiffs' wrongful death action. See McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (11th Cir.2007) ("McMahon II"). Following analysis of the terms and conditions of the contract between the contractor and the U.S. Army and of the six Baker factors, the McMahon II court upheld the decision of the district court below that the political question doctrine was inapplicable, on the ground that the action required evaluation of the contractor's performance of the contract rather than evaluation of any government decision or policy. See id. at 1357-65.
The Fifth Circuit has likewise found the political question doctrine inapplicable to tort actions brought against government contractors providing services in support of the United States military. On consolidated appeal from three district court decisions that the political question doctrine deprived the court of jurisdiction to consider claims arising out of injuries suffered in Iraq by civilian employees of KBR and various of its subsidiaries that were caused when trucks driven by the civilian employees came under attack by Iraqi insurgents, see Lane v. Halliburton, 529 F.3d 548, 554 (5th Cir.2008), the Fifth Circuit reversed the district courts' decisions and remanded for further proceedings. Addressing the
Lane, 529 F.3d at 559-560 (some citations, internal modifications, internal quotation marks omitted). Addressing the district courts' disposition of the second Baker factor—a lack of judicially discoverable and manageable standards—the Lane court held that the plaintiffs' claims "primarily raise legal questions that may be resolved by the application of traditional tort standards." Id. at 563. Addressing the district courts' disposition of the third Baker factor—the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion—the Lane court held as follows:
Id.
Numerous district courts have likewise found the political question doctrine inapplicable to tort actions brought against government contractors in the military context. In a case arising out of injuries sustained in Iraq in March 2004 by an army soldier escorting a commercial truck convoy owned and operated by KBR, Lessin v. Kellogg Brown & Root, Case No. H-05-01853, 2006 WL 3940556, 2006 U.S. Dist. LEXIS 39403 (S.D.Tex. June 12, 2006), KBR argued, as it does here, that the case should be dismissed as nonjusticiable under the political question doctrine. The Lessin court squarely rejected KBR's arguments:
Lessin, 2006 WL 3940556 at *2-3, 2006 U.S. Dist. LEXIS 39403 at *4-10 (footnote omitted).
In a case arising out of the death of an army soldier in Iraq in January 2008 who was electrocuted in the shower while using a shower facility maintained by KB & RS pursuant to a contract with the U.S. Army, Harris v. Kellogg, Brown & Root Servs., 618 F.Supp.2d 400 (W.D.Pa.2009), KB & RS argued, as it does here, that the case should be dismissed under the political question doctrine. The Harris court rejected KB & RS' argument, finding that resolution of the plaintiffs' claims would require the court to evaluate, not the military's decision to delegate maintenance responsibilities to KB & RS, but rather KB & RS' performance of the work it undertook to perform under the contract, see Harris, 618 F.Supp.2d at 422-427, that traditional principles of negligence law provided controlling judicially discoverable and manageable standards, see id. at 427-430, that the issues raised by the case could be "resolved without implicating military judgments or policy determinations," id. at 430, and that adjudication of the claims would "not cause embarrassment nor show a lack of respect to the coordinate branches" of government, id. at 431. See also, e.g., Norwood v. Raytheon Co., 455 F.Supp.2d 597 (W.D.Tex.2006) (political question doctrine did not bar claims of American and German servicemen against government contractors that manufactured radar detectors for physical injuries resulting from exposure to x-rays during their military service); Getz v. Boeing Co., Case No. 07-6396, 2008 WL 2705099, 2008 U.S. Dist. LEXIS 87557 (N.D.Cal. July 8, 2008) (soldiers' estates design and manufacturing defect claims against contractor arising from helicopter crash in Afghanistan were not barred by political question doctrine); Flanigan v. Westwind Technologies, 648 F.Supp.2d 994 (W.D.Tenn.2008) (political question doctrine did not bar civilian helicopter pilot's design defect suit against contractors that manufactured the helicopter flown by and the helmet worn by the pilot); Al Shimari v. CACI Premier Technology, Inc., 657 F.Supp.2d 700 (E.D.Va. 2009) (political question doctrine did not bar Iraqi citizens' claims that they were allegedly tortured at Abu Ghraib prison in Iraq by government contractors).
However, in cases in which the courts determined that the government contractor lacked any discretion in the provision of support services to the military, some courts have found that the political question doctrine could operate to deprive the federal courts of subject-matter jurisdiction over tort actions arising out of such provision of services. See e.g., Carmichael v. Kellogg, Brown & Root Services, Inc.,
Here, defendants argue that each of the first through fourth and the sixth Baker tests mitigates in favor of applying the political question doctrine. I find defendants' arguments unpersuasive. As in Lessin, supra, and by direct contrast with Corrie, supra, in which the Ninth Circuit found the political question doctrine applicable, the matter fundamentally at issue here is defendants' performance of its contractual obligations to the government and to the plaintiffs rather than the advisability of any governmental policy-related decision.
Turning specifically to the six tests enumerated in Baker, there can be no serious argument that there has been any constitutional commitment of issues raised by plaintiffs' claims to any political department other than the judiciary. Plaintiffs' claims therefore do not implicate the first Baker test (a textually demonstrable constitutional commitment of the issue to a coordinate political department) in any degree.
With regard to the second Baker test (a lack of judicially discoverable and manageable standards), analysis of the provisions of the RIO contract establishes that it provides multiple relevant standards, as discussed above. Moreover, traditional principles of tort law provide additional such standards, and the fact that the torts at issue here were committed in the context of services performed under a contract with the military does nothing to render those standards inapplicable. Because defendants' conduct may by analyzed under the standards of care set forth in or incorporated by reference into the RIO contract and under general principles of negligence law and tort law, plaintiffs claims are not inextricable from the second Baker formulation.
As to the third Baker test (the impossibility of deciding the case without an initial policy determination of a kind clearly for nonjudicial discretion), it is clear that to determine whether defendants may be liable for negligence and/or for fraud will not require the court to second-guess any governmental or military policy decision. The provisions of the RIO contract may be taken at face value without need for any inquiry into the propriety of the government's decision to enter into such a contract with a private contractor. For the same reasons, the fourth Baker test (the impossibility of undertaking resolution of the claims without expressing lack of the respect due coordinate branches of government) is likewise not inextricably linked with plaintiffs' claims: plaintiffs' claims allege defendants' negligence and fraud in connection with the provision of services under a contract. The government's decision to enter into the contract, the priority the government placed on the restoration of Iraqi oil production capacity,
All parties agree that the fifth Baker test (an unusual need for unquestioning adherence to a political decision already made) is inapplicable to plaintiffs' claims. I agree with the parties that the fifth test is inapplicable here.
Finally, as to the sixth Baker test (the potential for embarrassment due to multiple pronouncements by various departments on one question), adjudication of plaintiffs' claims would not raise any clear risk of multiple conflicting pronouncements on the same question. No governmental department has issued any pronouncement bearing on the question of defendants' liability. On the facts currently available in the record, there is therefore no indication that plaintiffs' claims could be inextricably linked with the sixth Baker test.
Because none of the Baker formulations is inextricable from the issues raised by plaintiffs' claims, the political question doctrine does not deprive this court of subject-matter jurisdiction. See Baker, 369 U.S. at 217, 82 S.Ct. 691. Defendants' motion to dismiss is therefore denied to the extent premised on the political question doctrine.
Under the so-called "government contractor defense," where certain conditions are met a government contractor enjoys derivative sovereign immunity against tort actions arising out of the contractor's provision of services to the government:
In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1000 (9th Cir.2008) (emphasis supplied).
The Griffin court analyzed the Ninth Circuit's application of the government contractor defense, as well as law review articles on the subject, and concluded that:
Id. at 1137, n. 30. The Griffin court further noted that:
Id. at 1138 (first modification supplied; subsequent modifications original).
Defendants here assert that their "provision of engineering and logistical support services at Qarmat Ali" took place pursuant to the specifications of a contract with the government, and that they did not exceed their authority under those specifications. On this basis, defendants argue that they were merely "executing the will of the United States" and are entitled to the benefits of derivative sovereign immunity. The evidentiary record belies both of defendants' assertions.
The rationale underlying the government contractor defense is easy to understand. Where the government hires a contractor to perform a given task, and specifies the manner in which the task is to be performed, and the contractor is later haled into court to answer for a harm that was caused by the contractor's compliance with the government's specifications, the contractor is entitled to the same immunity the government would enjoy, because the contractor is, under those circumstances, effectively acting as an organ of government, without independent discretion. Where, however, the contractor is hired to perform the same task, but is allowed to exercise discretion in determining how the task should be accomplished, if the manner of performing the task ultimately causes actionable harm to a third party the contractor is not entitled to derivative sovereign immunity, because the harm can be traced, not to the government's actions or decisions, but to the contractor's independent decision to perform the task in an unsafe manner. Similarly, where the contractor is hired to perform the task according to precise specifications but fails to comply with those specifications, and the contractor's deviation from the government specifications actionably harms a third party, the contractor is not entitled to immunity because, again, the harm was not caused by the government's insistence on a specified manner of performance but rather by the contractor's failure to act in accordance with the government's directives.
Assuming without deciding that the Ninth Circuit would apply the government contractor defense to the provision of the kinds of services KBR contracted to provide in Iraq under RIO and Task Order 3—likely a justifiable assumption, cf. Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 20-21, 60 S.Ct. 413, 84 L.Ed. 554 (1940); McKay v. Rockwell Int'l Corp., 704 F.2d 444, 448-49 (9th Cir.1983)—analysis of the RIO contract and of Task Order 3 fails to establish that the defendants' actions alleged to have caused plaintiffs' injuries were taken in direct compliance with any "reasonably precise" government directive. Quite to the contrary, defendants were contractually obliged to perform an environmental assessment of Qarmat Ali and to report any environmental hazards to the Army Corps of Engineers.
Moreover, assuming arguendo that the government's specifications regarding defendants' obligations in connection with operations to be performed in an environmentally contaminated worksite were sufficiently precise to trigger the defense, plaintiffs have offered evidence tending to establish that the defendants violated those contractual duties, by failing to report the contamination at Qarmat Ali and by permitting the Oregon National Guard to perform duties at the site without appropriate protective gear.
Because defendants did not conduct operations at Qarmat Ali in accordance with precise government specifications and without independent discretion as to the manner in which the operations were to be performed, defendants are not entitled to the government contractor defense. See Hanford Nuclear, 534 F.3d at 1000. Defendants' motion to dismiss is therefore denied to the extent premised on the government contractor defense.
The Federal Tort Claims Act (the "FTCA") provides a waiver of sovereign immunity for claims against the government sounding in tort. One exception to that waiver is the combatant activities exception, codified at 28 U.S.C. § 2680(j), which expressly preserves the United States' sovereign immunity in connection with "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." 28 U.S.C. § 2680(j). The Ninth Circuit has specified that he combatant activities exception is to be applied neither strictly nor liberally, but rather according to its plain language. See Johnson v. United States, 170 F.2d 767, 769 (9th Cir. 1948).
The Johnson court further clarified that, for the exception to apply, the alleged tortfeasor "must not only have been actually engaged in `combatant activities' at the time covered by the complaint, but such `combatant activities' must be shown to have taken place `during time of war.'" Id. at 769-770. The Johnson court analyzed the exception as follows:
Id. at 770 (footnotes omitted; emphasis supplied).
In Koohi, discussed supra (arising out of the shooting down of a civilian aircraft by a United States warship), the Ninth Circuit clarified that "time of war" "has come to mean periods of significant armed conflict rather than times governed by formal declarations of war" for purposes of the combatant activities exception. Koohi, 976 F.2d at 1334. The Koohi court concluded that the armed conflict in which the civilian aircraft was mistaken for an enemy combatant aircraft was shut down constituted a time of war, and that shooting it down constituted a combatant activity. See id. at 1334-1336. The Koohi court found that the combatant activities exception therefore applied to bar claims arising out of those combatant activities. See id. at 1335.
Although the combat activities exception to the FTCA by its own terms operates to preserve the federal government's independently existing sovereign immunity, and in no way suggests that involvement in the "combatant activities of the military or naval forces, or the Coast Guard" could confer sovereign immunity on any private actor that, absent such involvement, would lack such immunity,
McMahon v. Presidential Airways, Inc., 460 F.Supp.2d 1315, 1330 (M.D.Fla.2006) (footnote omitted) ("McMahon I"); see also McMahon II, 502 F.3d at 1366 (affirming McMahon I and formally declining to reach defendant's theory of preemption based on the combatant activities exception but expressly casting "considerable doubt" on its validity). However, other courts, including the D.C. Circuit, have interpreted the combatant activities exception as "embod[ying]" a "policy" of "the elimination of tort from the battlefield, both to preempt state or foreign regulation of federal wartime conduct and to free military commanders from the doubts and uncertainty inherent in potential subjection to civil suit." Saleh v. Titan Corp., 580 F.3d 1, 7 (D.C.Cir.2009). The Saleh court determined that "the policies of the combatant activities exception are equally implicated whether the alleged tortfeasor is a soldier or a contractor engaging in combatant activities at the behest of the military and under the military's control," and on that basis interpreted the combatant activities exception as embodying a policy to preempt state tort claims against private contractors where the tort claims arise out of combatant activities. Id.; see also Taylor v. Kellogg Brown & Root Servs., Case No. 09-341, 2010 WL 1707530, *10, *10-11, 2010 U.S. Dist. LEXIS 50610, *30, *31-32 (E.D.Va. Apr. 16, 2010) (in a case arising out of the electrocution of the plaintiff when employees of KBR turned on a generator at a military base in Iraq in July 2007 while plaintiff was conducting repairs on it, combatant activities exception barred the plaintiffs claim because the generator was necessary for tank maintenance and tank maintenance was both necessary to and performed in direct connection with combatant activities); but cf. Harris, 618 F.Supp.2d at 434 (in a case arising out of the electrocution of an army soldier in Iraq in January 2008 while using a shower facility maintained by KB & RS pursuant to a contract with the U.S. Army, combatant activities exception inapplicable because the maintenance services provided by KB & RS at the military basis were not in direct connection with combatant activities); Lessin, 2006 WL 3940556 at *4-5, 2006 U.S. Dist. LEXIS 39403 at *13-14 (in a case arising out of injuries sustained in Iraq in March 2004 by an army soldier escorting a commercial truck convoy owned and operated by KBR, combatant activities exception held inapplicable because KBR was engaged in conducting convoys in Iraq with military escorts rather than the manufacture of weapons).
Assuming without deciding that the Ninth Circuit would agree with the D.C. Circuit's decision in Saleh, construing the combatant activities exception as
Because the KBR defendants' operations at Qarmat Ali were neither necessary to nor in direct connection with actual hostilities involving the military, but rather were performed in support of the foreign-policy goal of restoring Iraqi oil production, plaintiffs' claims cannot be preempted in connection with the combatant activities exception to the FTCA waiver of sovereign immunity. Defendants' motion to dismiss is therefore denied to the extent premised on the combatant activities exception.
For the reasons set forth above, defendants' motion (# 45) to dismiss for lack of subject-matter jurisdiction is denied. The Court finds that this Order is appropriate for immediate appeal pursuant to 28 U.S.C. § 1292(b). The Order involves a controlling question of law as to which there is substantial ground for difference of opinion, and an immediate appeal from this Order may materially advance the ultimate termination of the litigation.
Hanford, 534 F.3d at 1001 (emphasis supplied).
