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Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed. The grisly details of the murder and dismemberment of four U.S. citizen contractors in the Iraqi city of Fallujah have found their way onto U.S. soil in a dispute that may reach the Supreme Court. In the case, the estates of the four late contractors filed suit against Blackwater Security, a company with whom the decedents contracted to perform military escort services. The estates attribute the contractors’ deaths to the allegedly negligent and deceitful actions of the contracting companies, asserting claims of common-law fraud and wrongful death under North Carolina law. Blackwater, however, contends that the state law claims are pre-empted by federal law, and that no court, state or federal, has jurisdiction to review the claims. Interestingly, no court has yet ruled on whether Blackwater ought to be held financially responsible for the deaths of the four contractors; instead, in Blackwater Security Consulting v. Nordan, 06-857, the company is asking the Supreme Court to step in and determine where the next confrontation, if any, over the responsibility for the decedents’ deaths will take place. The four decedents were employed as independent contractors by Blackwater, which provided security and logistical support for private contractors in Iraq. On March 30, 2004, the contractors were ordered to escort three trucks carrying food supplies to a U.S. Army base. Lacking the necessary support, the four ultimately became lost in the city of Fallujah at a time when reportedly even the U.S. military would not enter the city. Insurgents ambushed the convoy, murdered the contractors, and beat, burned and dismembered their remains. Richard Nordan, in his capacity as administrator for the decedents’ estates, sued Blackwater and other related parties in the North Carolina state court. The suit alleged wrongful death and fraud under North Carolina tort law, and it claims that Blackwater failed to provide the armored vehicles, equipment, personnel, weapons, maps or necessary lead time in which the four men could have familiarized themselves with the area. Blackwater removed the case to federal district court, asserting that the Defense Base Act, which Congress passed in 2000, completely pre-empted the state law claims and presented unique federal interests sufficient to create a federal question. Once in federal court, Blackwater sought dismissal based on the district court’s purported lack of subject-matter jurisdiction (the DBA requires claimants to litigate their claims before the Department of Labor, though its decision would be subject to review by a federal district court). The district court rejected Blackwater’s arguments, concluding that the DBA does not completely pre-empt state law claims because it does not present original jurisdiction over the matter in federal district court, but rather in a government agency. The court also concluded that there was no unique federal interest involved that was sufficient to establish jurisdiction, because it was unclear whether the DBA applied to the decedents. Thus, the federal court remanded the suit back to state court.
Blackwater argues that a removal action should be dismissed rather than remanded in a situation where both the state and federal courts lack subject-matter jurisdiction to hear the case.

Blackwater appealed, and the Fourth Circuit U.S. Court of Appeals affirmed the district court’s decision, concluding that it lacked authority to review the case on appeal. Blackwater argued that the district court’s decision to remand undermined the constitutional sequestration of foreign affairs and war powers within the political branches of government, because a state court would be forced to decide issues affecting military operations in the Iraq war; but the court again rejected Blackwater’s views, stating its belief that the Constitution does not override Congress’ ability to circumscribe appellate jurisdiction in this matter. Represented by Kenneth Starr of Kirkland & Ellis, Blackwater has now asked the Supreme Court to consider the issue, arguing that the remand order circumvented federal statutory and constitutional designs to preclude state-court jurisdiction. The petition asks the court to revisit the “derivative-jurisdiction doctrine,” which states that where a state court lacks jurisdiction over a case that is removed to federal court, the federal court must dismiss rather than remand the case. In other words, Blackwater argues that a removal action should be dismissed rather than remanded in a situation where both the state and federal courts lack subject-matter jurisdiction to hear the case. Nordan’s brief in opposition, for which Daniel Callahan of Callahan & Blaine served as counsel of record, argues that Congress eliminated the derivative-jurisdiction doctrine and that Blackwater’s argument rests on the erroneous assumption that the North Carolina court lacks jurisdiction in this case. It asserts that the decision below was correct, and that the high court need not step in and hear the case. The justices will consider Blackwater’s petition at its private conference this Friday, and we may know whether the court will hear the case as early as Monday.

Christopher Pudelski

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