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, v. Blackwater Security Consulting, LLC, a Delaware Limited Liability Company; Blackwater Lodge and Training Center, Incorporated, a Delaware Corporation, Defendants-Appellants, and Justin L. McQuown, an individual; Thomas Powell, Defendants. Professional Services Council; International Peace Operations Association; American International Group, Incorporated, Amici Supporting Appellants.
Nos. 05-1949, 05-1992, 05-2033, 05-2034
United States Court of Appeals, Fourth Circuit
Argued March 14, 2006. Decided Aug. 24, 2006.
460 F.3d 576
Before SHEDD and DUNCAN, Circuit Judges, and JAMES P. JONES, Chief United States District Judge for the Western District of Virginia, sitting by designation.
However, I am concerned that in certain circumstances, the conduct covered by the statute might not provide constitutionally sufficient notice of possible regulation. For example, under the statute, a person who knowingly owns just five percent of a money transmitting business is covered by the prohibition. Such a person would be subject to up to five years’ imprisonment for the business‘s noncompliance with the licensing, registration, or regulatory requirements. In my view, a significant due process question exists regarding whether the individual‘s conduct would provide notice of a possible crime. Owning a small stake in a business does not require involvement in the business activity. Indeed, it may well be greatly attenuated from the operation of the enterprise. In such a case, minimal ownership resembles the passive conduct proscribed by the flawed Lambert ordinance, raising a question as to whether the individual‘s conduct provides the notice required by due process. No doubt other circumstances could raise similar constitutional doubts, given the breadth of the statute. I would therefore leave open the question of whether certain situations could give rise to a successful as-applied challenge to
III.
For the reasons stated, I would affirm the dismissal of the indictment. Moreover, although I agree that the charged provisions of
Appeal dismissed; petition for writ of mandamus denied; motion to strike denied as moot by published opinion. Judge DUNCAN wrote the opinion, in which Judge SHEDD and Judge JONES joined.
DUNCAN, Circuit Judge:
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 Center, 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
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
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. Id. 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.” Id. at 813.
Finding no basis for removal, the district court concluded that it lacked subject matter jurisdiction and, citing
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.3
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.
A.
1.
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.”4
Second,
Finally,
2.
In order to determine whether an exception to
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, e.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....” Id. 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 either 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 440. “Complete preemption is a jurisdictional doctrine, while ordinary preemption simply declares the primacy of federal law, regardless of the forum or the claim.” Id. (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
1.
As we have explained,
The district court‘s remand order in this case clearly falls within the ambit of
To conclude that the remand order was issued pursuant to
2.
Having determined that the order before us was, indeed, predicated upon
a.
The Supreme Court in Waco construed
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, 547 U.S. 633, 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 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, 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
b.
i.
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
Shives concerned a railroad employee‘s action in state court under the Federal Employers’ Liability Act (“FELA“),
“[W]ith 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
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. Id. 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
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,
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.7
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 sub-
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 at 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“),
Finally, once a district court determines that it lacks subject matter jurisdiction over a removed case,
ii.
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 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. Id. 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 preemption findings were merely subsidiary legal steps on the way to its determination that the case was not properly removed.” Id. 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.8
Notes
As we have explained,
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.9 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
riage 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
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
The correctness of the district court‘s jurisdictional analysis is irrelevant under
4.
Finally, Blackwater argues 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 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.” Lontz, 413 F.3d at 442. For these reasons, we decline to graft a new exception onto the already significantly burdened text of
III.
Blackwater alternatively claims that, even if
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 (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.”
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, 403, 96 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 U.S. 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.
Blackwater argues, however, that we may issue a writ of mandamus because this case presents a conflict between
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
First, Blackwater contorts the meaning of Thermtron, in which the Supreme Court held that federal appellate courts may review via mandamus remand orders that are not covered by
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.” Shives, 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
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
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.