Latasha Freeman v. American K-9 Detection Services, L.L.C. and Hill Country Dog Center, L.L.C.

ACCEPTED
13-14-00726-cv
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
6/4/2015 3:59:29 PM
DORIAN RAMIREZ
CLERK
No. 13-14-00726-CV

FILED IN
IN THE COURT OF APPEALS FOR13th
THE COURT OF APPEALS
CORPUS
THIRTEENTH DISTRICT OF TEXAS AT CORPUS CHRISTI/EDINBURG,
CHRISTI -EDINBURG TEXAS
6/4/2015 3:59:29 PM
CECILE FOY GSANGER
Clerk
LATASHA FREEMAN,
Appellant,

v.

AMERICAN K-9 DETECTION SERVICES, LLC AND
HILL COUNTRY DOG CENTER, LLC,
Appellees.

On Appeal from the 198th Judicial District Court
Bandera County, Texas
Cause No. CV-13-246

BRIEF OF APPELLEE
AMERICAN K-9 DETECTION SERVICES, LLC

James M. Parker Wallace B. Jefferson
State Bar No. 15488710 State Bar No. 00000019
jparker@namanhowell.com wjefferson@adjtlaw.com
NAMAN, HOWELL, SMITH & LEE Rachel A. Ekery
10001 Reunion Place, Suite 600 State Bar No. 00787424
San Antonio, Texas 78216 rekery@adjtlaw.com
Telephone: (210) 731-6364 Amy Warr
Facsimile: (210) 785-2964 State Bar No. 00795708
awarr@adjtlaw.com
ALEXANDER DUBOSE JEFFERSON &
TOWNSEND LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701-3562
Telephone: (512) 482-9300
Facsimile: (512) 482-9303

ATTORNEYS FOR APPELLEE AMERICAN K-9 DETECTION SERVICES, LLC
Oral Argument Requested
 TABLE OF CONTENTS
Table of Contents .......................................................................................................i

Index of Authorities ................................................................................................ iii
Statement Regarding Oral Argument ......................................................................iv

Issues Presented .......................................................................................................vi
Statement of Facts .....................................................................................................1

Summary of the Argument........................................................................................5

Argument...................................................................................................................8
I. The trial court correctly granted AMK9’s plea to the jurisdiction .................8
A. Because military decisions are potentially responsible for all or
part of Freeman’s alleged injuries, the political-question doctrine
bars jurisdiction ....................................................................................8

1. The political-question doctrine generally shields military
decisions from judicial review ...................................................9

2. If the parties’ claims or defenses require analysis of
military decisions, the claim is a political question .................11
3. AMK9’s defense that the Army caused all or part of
Freeman’s alleged injury makes her claim nonjusticiable.......19
B. Freeman’s claim should be dismissed because it is preempted
under federal law ................................................................................27
1. The Federal Tort Claims Act is jurisdictional in Texas
courts ........................................................................................27

2. Federal policy under the FTCA preempts Freeman’s
claims .......................................................................................27
C. Because AMK9 was exercising discretion in performing a
governmental function, it is entitled to absolute official immunity ...... 33

D. AMK9 is immune under the Defense Production Act of 1950 ..........39

i
II. The trial court correctly denied Freeman’s request to replead .....................42
III. The trial court’s grant of AMK9’s responsible-third-party designation
was correct ....................................................................................................44

Conclusion and Prayer ............................................................................................44

Certificate of Service ..............................................................................................46
Certificate of Compliance .......................................................................................47

ii
 INDEX OF AUTHORITIES

Cases
Ackerson v. Bean Dredging LLC,
589 F.3d 196 (5th Cir. 2009) ..............................................................................41

Allen v. Albin,
97 S.W.3d 655 (Tex. App.—Waco 2002, no pet.) .............................................24

Baker v. Carr,
369 U.S. 186 (1962) ................................................................................10, 11, 18

Barr v. Matteo,
360 U.S. 564 (1959) ............................................................................................33

Beebe v. Wash. Metro. Area Transit Auth.,
129 F.3d 1283 (D.C. Cir. 1997) ..........................................................................34

Boyle v. United Techs.,
47 U.S. 500 (1988) ..............................................................................................28

Brown & Gay v. Olivares,
2015 WL 1897646 (Tex. Apr. 24, 2015) ............................................................41
Bushnell v. Mott,
254 S.W.3d 451 (Tex. 2008) (per curiam) .........................................................24
Carmichael v. Kellogg, Brown & Root Servs., Inc.,
572 F.3d 1271 (11th Cir. 2009) ..........................................................9, 12, 13, 26

Del Lago Partners, Inc. v. Smith,
307 S.W.3d 762 (Tex. 2010) ..............................................................................24

Dugger v. Arredondo,
408 S.W.3d 825 (Tex. 2013) ..............................................................................17

Fisher v. Halliburton,
667 F.3d 602 (5th Cir. 2012) ........................................................................16, 17
Gilligan v. Morgan,
413 U.S. 1 (1973) ......................................................................................9, 13, 21

iii
Gonzales v. State Farm Lloyds,
No. 13-05-00730-CV, 2006 WL 2327259 (Tex. App.—Corpus
Christi-Edinburg Aug. 10, 2006) (mem. op.) ....................................................... 8

Greater Houston Transp. Co. v. Phillips,
801 S.W.3d 523 (Tex. 1990) ..............................................................................24
Harris v. Kellogg Brown & Root Servs., Inc.,
724 F.3d 458 (3rd Cir. 2013) ........................................... 14-16, 19, 21, 26, 28-32

Hercules, Inc. v. United States,
24 F.3d 188 (Fed. Cir. 1994). .............................................................................40
Hercules Inc. v. United States,
516 U.S. 417 (1996) ............................................................................................40

Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc.,
481 F.3d 265 (5th Cir. 2007) ..............................................................................34
JCW Elecs., Inc. v. Garza,
257 S.W.3d 701 (Tex. 2008) ..............................................................................26
Johnson v. United States,
170 F.2d 767 (9th Cir. 1948) ........................................................................ 29-32

Jones v. Halliburton,
791 F.Supp.2d 567 (S.D. Tex. 2011) ..............................................................6, 38

Koepke v. Martinez,
84 S.W.3d 393 (Tex. App.—Corpus Christi 2002, pet. denied) .................. 23-25

Koohi v. United States,
976 F.2d 1328 (9th Cir. 1992) ............................................................................29

Labaj v. VanHouten,
322 S.W.3d 416 (Tex. App.—Amarillo 2010, pet. denied) ...............................24

Lane v. Halliburton,
529 F.3d 548 (5th Cir. 2008) ................................................. 5, 6, 8-11, 16-19, 26

Marbury v. Madison,
5 U.S. 137, 1 Cranch 137 (1803) .......................................................................... 5

iv
Martin v. Halliburton,
618 F.3d 476 (5th Cir. 2010) ..............................................................................41

McManaway v. KBR, Inc.,
554 Fed. App’x. 347 (5th Cir. 2014)
(dissent to denial of reh’g en banc)............................. 5, 11, 17, 18, 20, 26, 31-33
Mellon Mortg. Co. v. Holder,
5 S.W. 3d 654 (Tex. 1999)..................................................................................23

Merkulov v. United States Park Police,
__ F.Supp.3d __, Civil Action No. 14-0854 (BAH), 2014 WL
6743608 (D.D.C. Dec. 1, 2014) ..........................................................................27

Mills v. Warner Lambert Co.,
157 S.W.3d 424 (Tex. 2005) (per curiam) .........................................................27
Murray v. Northrop Grumman Info. Tech., Inc.,
444 F.3d 169 (2d Cir. 2006) ......................................................................... 34-36
Nabors Well Servs., Ltd. v. Romero,
456 S.W.3d 553 (Tex. 2015) ..................................................................17, 19, 22
Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist.,
176 S.W.3d 746 (Tex. 2005) ..............................................................................10
Palsgraf v. Long Island R. Co.,
248 N.Y. 339, 162 N.E. 99 (1928)................................................................23, 25
Saleh v. Titan Corp.,
580 F.3d 1 (D.C. Cir. 2009) .................................................................... 28-31, 33
San Antonio Water Sys. v. Nicholas,
__S.W.3d __, 2015 WL 1873217 (Tex. Apr. 24, 2015) .....................................34
Taylor v. Kellogg Brown & Root Servs., Inc.,
658 F.3d 402 (4th Cir. 2011) ...................................................... 13-15, 19, 21, 26
Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) ..............................................................................42
U.S. v. Munoz-Flores,
495 U.S. 385 (1990) ..............................................................................................9

v
United States v. Bradshaw,
840 F.2d 871 (11th Cir. 1988) ............................................................................41

United States v. Vertac Chem. Corp.,
46 F.3d 803 (8th Cir. 1995) ................................................................................40

Viehdeffer v. Tryon,
2012 WL 3746372 (W.D.N.Y. Aug. 28, 2012) (unpublished) .....................36, 37

Westfall v. Erwin,
484 U.S. 292 (1988) .................................................................................. 7, 33-35

Yearsley v. W.A. Ross Constr. Co.,
309 U.S. 18 (1940) ..............................................................................................41

Constitution and Statutes
28 U.S.C. §1346(b)(1)..............................................................................................27

28 U.S.C. §2671 .......................................................................................................27
28 U.S.C. §2674 .......................................................................................................27
28 U.S.C. §2679(d) ..................................................................................................34
28 U.S. C. §2680(a) .................................................................................................28

28 U.S.C. §2680(j) ....................................................................................... 27-29, 32

42 U.S.C. §§1651-54............................................................................................6, 38
50 U.S.C. Appendix §2061 et. seq. ..........................................................................39

50 U.S.C. Appendix §2157 ................................................................................39, 40

50 U.S.C. §2071(a) ..................................................................................................39
50 U.S.C. §2071(a)(1) ..............................................................................................39

TEX. CIV. PRAC. & REM. CODE 33.002(a) ................................................................26

TEX. CIV. PRAC. & REM. CODE §33.003.........................................................8, 17, 22
TEX. CIV. PRAC. & REM. CODE §33.004(g)(1) .........................................................44

vi
U.S. CONST. art. II, §2, cl. 1 .....................................................................................11

Other Authorities
http://news.nationalgeographic.com
/news/2003/04/0409_030409_militarydogs.html (Apr. 9, 2003) ......................... 2

http://www.npr.org/2013/03/10/173815691/sniffing-out-bombs-in-
afghanistan-a-job-thats-gone-to-the-dogs (Mar. 8, 2013) .................................... 2
http://www.telegraph.co.uk/news/10399699/Four-military-dogs-
killed-in-action-in-Afghanistan.html (Oct. 25, 2013) .......................................... 2

http://www.wsj.com/articles/military-dogs-sniff-out-ieds-save-lives-
1414772453 (Oct. 31, 2014) .................................................................................2

Remembering CIA’s Heroes: Johnny Micheal Spann,
https://www.cia.gov/news-information/featured-story-
archive/johnny-micheal-spann.html (last visited June 3, 2015) ........................... 1
www.en.wikipedia.org/wiki/Forward_operating_base#Active_FOBs_i
n_Afghanistan (last visited May 20, 2015) .......................................................... 1
www.irs.gov/uac/Combat-Zones (last visited May 20, 2015) ................................... 1

vii
 STATEMENT REGARDING ORAL ARGUMENT
The unusual context of this appeal—alleged injuries that occurred on a U.S.

military base in Afghanistan—gives rise to jurisdictional bars that have been

frequently litigated in the federal courts but not in Texas courts. Because the

jurisdictional issues are legally complex and novel to Texas courts, oral argument

will assist the Court.

viii
 STATEMENT OF THE CASE
Nature of the Personal injury action against military contractor providing
Case: U.S. Defense Department with canine teams to detect
improvised explosive devices and narcotics. Appellant
alleges that the contractor’s working dog bit her at a U.S.
forward-operating base in a war zone in Afghanistan.

Parties in the Plaintiff: LaTasha Freeman
Trial Court:
Defendants: American K-9 Detection Services, LLC
(“AMK9”), and Hill Country Dog Center, L.L.C (“HCDC”).

Trial Court: Hon. M. Rex Emerson, 198th District Court, Bandera County

Trial Court AMK9 filed a plea to the jurisdiction based on the political-
Proceedings: question doctrine, the combatant-activities exception to the
Federal Tort Claims Act, shared or derivative immunity, and
the Defense Production Act of 1950.

Trial Court’s Granted plea to the jurisdiction. See App. 1.
Disposition:

Parties in the Appellant: Freeman
Court of Appeals: Appellees: AMK9 and HCDC

ix
 ISSUES PRESENTED
1. Under federal “battlefield tort” precedent, the political-question doctrine
renders a claim against a government contractor nonjusticiable if the
contractor asserts that military decision-making contributed to cause the harm.
In this case, the defendant contractor asserts that the design of Army kennels
contributed to the dog’s escape and alleged attack on the plaintiff. Should the
plaintiffs’ claims be dismissed as nonjusticiable?
2. Under federal “battlefield tort” precedent, the policy animating the Federal
Tort Claims Act’s combatant-activities exception preempts tort suits against
government contractors if (1) the contractors’ activities were necessary to and
in direct connection with combatant activities and (2) the military retained
command authority. In this case, the contractor served on a forward-operating
Army base in a war zone in Afghanistan performing narcotics and explosive
detection alongside military troops, and the Army retained command over
those services.
a. Are the plaintiff’s claims preempted?
b. Does preemption deprive Texas courts of jurisdiction because federal
district courts have exclusive, original jurisdiction over suits under the
Federal Tort Claims Act?
3. Does the defendant contractor have absolute official immunity because the
government delegated to it a quintessential governmental function, and it
performed a discretionary act in the course and scope of its duties?
4. The Defense Production Act of 1950 provides immunity from suit under
“rated” contracts, which are deemed by the President of the United States to
be necessary or appropriate to promote the national defense. The defendant
contractor’s contract with the Army was a rated contract. Should the
plaintiff’s suit be dismissed?

x
 STATEMENT OF FACTS

Parties

LaTasha Freeman, a civilian contractor administrative clerk with Honeywell,

was stationed at Camp Mike Spann 1 near Mazar-e-Sharif, in Afghanistan. This base

is in the heart of a military combat zone. 2 1 CR 9; 1 RR 10. Camp Mike Spann is a

United States Army Forward Operating Base—a secured military position

supporting tactical combat operations. 3

Defendant American K-9 Detection Services, LLC (“AMK9”) provides the

United States Armed Forces with teams of contract working dogs and handlers

trained to detect improvised explosive devices and narcotics. 1 CR 477 (¶ 1.1).

Defendant Hill Country Dog Center, LLC (“HCDC”) trained dogs and handlers in

Texas. 1 CR 9.

AMK9 teams train in the United States, fly to Kandahar or Bagram Air Bases,

and deploy throughout Afghanistan’s Combined Joint Operations Area. 1 CR 477.

The U.S. military has its own canine-detection teams, but not enough; it needs

1
Johnny Micheal Spann, an Auburn University graduate, was the first American killed in combat
during the United States’ invasion of Afghanistan in 2001. See Remembering CIA’s Heroes:
Johnny Micheal Spann, https://www.cia.gov/news-information/featured-story-archive/johnny-
micheal-spann.html (last visited June 3, 2015).
2
See www.irs.gov/uac/Combat-Zones (last visited May 20, 2015).
3
See www.en.wikipedia.org/wiki/Forward_operating_base#Active_FOBs_in_Afghanistan (last
visited May 20, 2015).
contract teams “to execute force protection requirements in support of combat

operations.” 1 CR 477 (¶ 1.1). This includes detection of IEDs. See 1 CR 400.

Canine detection teams are an essential component of the U.S. military’s war

effort. “IEDs . . . are the No. 1 killer of civilians and troops in Afghanistan.”

http://www.npr.org/2013/03/10/173815691/sniffing-out-bombs-in-afghanistan-a-

job-thats-gone-to-the-dogs (Mar. 8, 2013). Canine-detection teams have proven to

be the most effective counter to this threat. After spending $19 billion on high-tech

innovations, the Pentagon concluded that “the best weapon against IEDs was still a

handler and his dog.” http://www.wsj.com/articles/military-dogs-sniff-out-ieds-

save-lives-1414772453 (Oct. 31, 2014). “On average, these four-footed soldiers are

98 percent accurate in their detection abilities . . . and depending on the task and

climate, can work up to 12 hours a day.” http://news.nationalgeographic.com

/news/2003/04/0409_030409_militarydogs.html (Apr. 9, 2003). Canine-detection

teams work in treacherous conditions, and some have been killed in action.

http://www.telegraph.co.uk/news/10399699/Four-military-dogs-killed-in-action-in-

Afghanistan.html (Oct. 25, 2013). Freeman admits that “[t]he job that they do as far

as training and having their dogs go out and sniff for bombs to protect our soldiers

out in the field is absolutely critical to protecting our soldiers, protecting our

civilians . . .” 1 RR 12.

2
 The alleged dog attack at a U.S. military base in Afghanistan

Freeman alleges that she was waiting by a gate to escort a vehicle into Camp

Mike Spann when “Kallie,” an AMK9 contract working dog, escaped the adjacent

kennel through an open door and attacked her. 1 CR 564. AMK9 alleges that Kallie

got out of the kennel by jumping over an internal partition between pens and then

escaping through an open door. 1 RR 24; 1 CR 398, 401. The internal partition did

not extend all the way to the kennel’s ceiling. Id. As Freeman admits, the Army

designed and constructed the kennel, and required AMK9 to use it. 1 RR 14; 1 CR

266; 2 CR 1293 (¶7.1.1). After the incident, tops were put on the kennels, and

handlers were instructed to keep the doors closed at all times. 1 CR 398, 401.

In her original petition, Freeman alleged that Kallie bit her three times,

resulting in physical injury, before a bystander pulled the dog away. 1 CR 5-9, 564.

She alleged that the attack caused a nerve condition called “complex regional pain

syndrome,” completely disabling her and making her unable to work. 1 RR 11. But

in both a handwritten complaint and an email written just days after the alleged

attack, Freeman did not claim that she was injured. 1 CR 399; 2 CR 1388. The only

after-effect Freeman reported was a torn coat. Id. AMK9’s contemporaneous

incident report states that there was a “[s]mall puncture mark on left sleeve of jacket”

but no physical injury (“Nature of Injury NONE”) (“Injured Person(s) NONE”)

3
(“Details of First Aid/ Medical Attention/ Hospitalization/ Evacuation/ Leave

NONE”). 1 CR 400-01.

Freeman sued AMK9 and HCDC for negligence and strict liability, seeking

more than $1 million in pain and suffering, mental anguish, medical expenses, and

lost wages. 1 CR 10-11, 15; 1 RR 10. She alleges that AMK9 did not properly

restrain the “dangerous” dog, train its handler, or warn base personnel. 1 CR 10-11.

She alleges that HCDC trained the dog to attack despite awareness of its dangerous

propensities. 1 CR 9-10, 12. In its answer, AMK9 denied that Freeman was attacked

or injured or that Kallie was a dangerous canine with aggressive propensities.

Alternatively, AMK9 designated the Army as a responsible third party. 1 CR 221

(first amended answer), 436-38 (RTP designation).

AMK9 sought dismissal on four independent jurisdictional grounds: the

political-question doctrine, the combatant-activities exclusion to the Federal Tort

Claims Act, derivative sovereign immunity, 4 and the Defense Production Act of

1950. 1 CR 215-17. The trial court granted the plea, 1 CR 612, and Freeman

appealed.

4
In proceedings below, AMK9 argued that it was entitled to derivative sovereign immunity. That
argument has been called into question by a recent decision of the Texas Supreme Court.
Accordingly, AMK9 has elected not to advance the derivative immunity argument in this brief.
Nevertheless, because the law in this area develops rapidly, AMK9 will promptly alert this Court
if a subsequent decision is in line with AMK9’s earlier stance.

4
 SUMMARY OF THE ARGUMENT
Our recent wars in Iraq and Afghanistan have been marked by an “explosion

in the military’s use of contractors to wage war.” McManaway v. KBR, Inc., 554

Fed. App’x. 347, 353 (5th Cir. 2014) (Jones, J., dissenting to denial of reh’g en banc).

In fact, “the military finds the use of civilian contractors in support roles to be an

essential component of a successful wartime mission.” Lane v. Halliburton, 529 F.3d

548, 554 (5th Cir. 2008). This is a suit against a government contractor for a

“battlefield tort,” i.e., an alleged civil wrong for an action or decision that occurred

on or near a combat zone, triggering important threshold questions regarding the

power of courts to adjudicate military operations in time of war. This appeal presents

four such issues.

The Political Question Doctrine. Marbury v. Madison famously declared:

“It is emphatically the province and duty of the judicial department to say what the

law is.” 5 U.S. 137, 177, 1 Cranch 137, 177 (1803). Lesser known, but fundamental

to our form of government, is Marbury’s holding that the judiciary is not the

appropriate forum for all questions: “Questions, in their nature political, or which

are, by the constitution and laws, submitted to the executive, can never be made in

this court.” Id. at 170.

This case involves such a question, because Freeman’s claims would require

a jury to decide whether the United States Army properly equipped its military base.

5
In the military context, a trial court’s exercise of jurisdiction could frustrate the

armed forces’ quest to defeat a United States adversary. The political question

doctrine bars a claim that weakens the autonomy of military decision-making. Lane,

529 F.3d at 558.

Under well-developed federal jurisprudence regarding the political-question

doctrine’s application to battlefield torts, Freeman’s claims are non-justiciable

because the Army’s negligence in causing Freeman’s alleged injury is directly at

issue. Under Texas’s proportionate-responsibility system, this allegation means that

the fact-finder must evaluate the Army’s wartime decision-making. Because such

review is impermissible, Freeman’s claims cannot be adjudicated in a Bandera

County court. However, Freeman is not without a remedy, as defense contractors

providing services to the Armed Forces overseas (such as Freeman’s employer,

Honeywell) must carry workers’ compensation coverage pursuant to the Defense

Base Act. See 42 U.S.C. §§1651-54; Jones v. Halliburton, 791 F.Supp.2d 567, 582

(S.D. Tex. 2011).

The Combatant-Activities Exception to the Federal Tort Claims Act.

Freeman’s claims are also preempted under federal law. The combatant-activities

exception prevents suits against government contractors when their activities are

integrated with the military, and the military retains operational control. Those facts

6
are present here, as AMK9 performed its explosives and narcotics detection duties

jointly with Army troops.

Absolute Official Immunity. AMK9 is entitled to immunity under the

Westfall doctrine because it (1) was delegated a quintessential government function

and (2) performed a discretionary act within the course and scope of its duties under

its contract with the Army.

Defense Production Act of 1950. AMK9 is immune under the Defense

Production Act of 1950 because it performed under a “rated” contract essential for

national defense.

No Repleading. Freeman did not establish the trial court’s subject-matter

jurisdiction, and she is not entitled to replead. She has not shown—and cannot even

articulate—what additional facts could conceivably bring her claims within the

court’s jurisdiction.

Responsible Third-Party Designation. The evidence supports the Army’s

responsibility, at least in part, for Freeman’s alleged injuries. Therefore, the trial

court could not have denied, and therefore correctly granted, AMK9’s designation

of the Army as a responsible third party under Texas’s proportionate responsibility

statute.

Accordingly, this Court should affirm the trial court’s grant of AMK9’s plea

to the jurisdiction and dismiss Freeman’s claims.

7
 ARGUMENT

I. The trial court correctly granted AMK9’s plea to the jurisdiction.
AMK9 advanced four grounds in its plea to the jurisdiction. 1 CR 215-17.

The trial court granted the plea without specifying which ground or grounds it relied

on, 1 CR 612 (App. 1); therefore, Freeman must negate all four grounds to prevail

in her appeal. See Gonzales v. State Farm Lloyds, No. 13-05-00730-CV, 2006 WL

2327259, at *2 (Tex. App.—Corpus Christi-Edinburg Aug. 10, 2006) (mem. op.)

(summary judgment).

A. Because military decisions are potentially responsible for all or
part of Freeman’s alleged injuries, the political-question doctrine
bars jurisdiction.
In many battlefield-tort cases, causation is “the most critical element for

political question analysis.” Lane, 529 F.3d at 565. Based on evidence that the Army

controlled the existence and design of the Camp Spann kennels, AMK9 asserts that

the Army caused some or all of Freeman’s alleged injuries. Under Texas’s

proportionate responsibility scheme, the jury must apportion responsibility among

each person who “in any way” causes or contributes to cause an injury. TEX. CIV.

PRAC. & REM. CODE §33.003. No matter how Freeman couches her claims, this case

will require Texas courts to evaluate (1) the Army’s choice of a kennel design that

allowed Kallie to scale an internal wall and escape, and (2) the Army’s contractual

requirement that AMK9 use Army kennels. See 1 CR 266, 398, 401; 2 CR 1293

8
(¶7.1.1); 1 RR 14. These are battlefield-related questions that no jury, and no court,

can second-guess. The political-question doctrine bars jurisdiction.

1. The political-question doctrine generally shields military
decisions from judicial review.
As the Fifth Circuit has observed, “an arena in which the political question

doctrine has served one of its most important and traditional functions” is to

“preclude[e] judicial review of decisions made by the Executive during wartime.”

Lane, 529 F.3d at 558. 5 Not all cases involving the military fall into this category.,

Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1281 (11th Cir.

2009), but the political-question doctrine is particularly applicable to wartime

military decisions:

[i]t would be difficult to think of a clearer example of the type of
governmental action that was intended by the Constitution to be left to
the political branches . . . . Moreover, it is difficult to conceive of an
area of governmental activity in which the courts have less competence.
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. The ultimate responsibility for
these decisions is appropriately vested in branches of the government
which are periodically subject to electoral accountability.

Lane, 529 F.3d at 558-59 (quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)).

5
Stated another way, the doctrine is “designed to restrain the Judiciary from inappropriate
interference in the business of the other branches of Government.” U.S. v. Munoz-Flores, 495 U.S.
385, 394 (1990).

9
 Baker v. Carr, 369 U.S. 186 (1962), “define[s] nonjusticiable political

questions.” See Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d

746, 778 (Tex. 2005) (assuming, without deciding, that Baker governs political

questions even under Texas Constitution). As the Fifth Circuit has observed, Baker

“is not satisfied by ‘semantic cataloguing’ of a particular matter as one implicating

‘foreign policy’ or ‘national security.’” Lane, 529 F.3d at 558 (quoting Baker, 369

U.S. at 216). “Instead, Baker demands a ‘discriminating inquiry into the precise facts

and posture of the particular case’ before a court may withhold its own constitutional

power to resolve cases and controversies.” Id. (quoting Baker, 369 U.S. at 216).

The six Baker factors are:

(1) “a textually demonstrable constitutional commitment of the issue to
a coordinate political department;” or

(2) “a lack of judicially discoverable and manageable standards for
resolving it;” or

(3) the impossibility of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion;” or

(4) “the impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government;” or

(5) “an unusual need for unquestioning adherence to a political decision
already made;” or

(6) “the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.”

10
369 U.S. at 217. “The inextricable presence of one or more of [the Baker] factors

will render the case nonjusticiable . . . .” Lane, 529 F.3d at 558.

2. If the parties’ claims or defenses require analysis of military
decisions, the claim is a political question.
Because the Constitution’s text commits to the President controversies

regarding foreign affairs and the armed forces, the political-question doctrine

precludes judicial review of cases involving military decision-making. See U.S.

CONST. art. II, §2, cl. 1. In the wake of our recent wars in Iraq and Afghanistan,

federal courts have developed a significant body of political-question

jurisprudence—particularly its application to military contractors’ actions on or near

the battlefield.

In federal courts’ battlefield-tort decisions, Baker’s “discriminating inquiry”

requires an in-depth evaluation of claims and defenses. The key issue is whether the

parties’ claims and defenses implicate “the Executive’s wartime decision-making.”

Lane, 529 F.3d at 557. If AMK9’s actions “form the sole issues,” Freeman’s

battlefield-tort claim is justiciable. Id. But if resolving the claim would require the

factfinder to analyze military decisions, then the claim is a non-justiciable political

question. Id.; see also McManaway, 554 Fed. App’x. at 350 (Jones, J., dissenting to

denial of reh’g en banc) (“[C]ases involving competing claims of negligence by the

United States military and a contractor are barred from federal court adjudication.”).

11
 Eleventh Circuit. Numerous federal circuit courts have applied the political-

question doctrine to suits against military contractors for torts on or near the

battlefield. The Eleventh Circuit dismissed a negligence suit by an injured soldier

against a civilian-contractor truck driver for an accident along an Iraq convoy route.

Carmichael, 572 F.3d at 1288. The fuel truck overturned on a sharp curve, pinning

the soldier—a passenger—underneath. Id. at 1278. The soldier brought what on

the surface was a typical tort action, alleging the truck driver traveled at excessive

speed, failed to keep a proper lookout, and failed to properly inspect his vehicle. Id.

at 1279.

The Eleventh Circuit nevertheless held that the political question doctrine

barred the tort action. The soldier’s suit would require examination of military

judgments made in the moment of war, including nearly all convoy travel on the day

of the incident. Id. at 1280. (applying the first and second Baker factors: “a textually

demonstrable constitutional commitment of the issue to a coordinate political

department,” and “a lack of judicially discoverable and manageable standards for

resolving it”). The court first noted that the Army had almost complete control over

the fuel convoy, which made it likely that that the suit would implicate military

decisions. Id. at 1283-84.

However, “even assuming [the driver] bore some blame for the accident, none

of the facts cited by Carmichael shows that [the driver] would be the only party to

12
blame.” Id. at 1286. “Whatever evidence Carmichael would present in an effort to

show [the driver’s] negligence, KBR would surely [present other evidence] to argue

that the military convoy commander was negligent . . . .” Id. Because “KBR would

inevitably . . . try to show that unsound military judgments . . . were either

supervening or concurrent causes of the accident . . . . litigation involving these

issues is undeniably foreclosed by the political question doctrine.” Id.

Importantly, the Eleventh Circuit recognized that the political-question

doctrine’s purview is not limited to battlefield or combat activities per se. Id. at

1287-88 (collecting cases applying political-question doctrine to military training

policies, conscription, and location of military bases). “[S]afe[] deliver[y of] vital

military supplies through hostile territory in war time . . . [is] among the ‘complex,

subtle, and professional decisions as to the composition, training, equipping, and

control of a military force’ that are ‘essentially professional military judgments’

and . . . properly insulated from judicial review.’” Id. at 1288 (quoting Gilligan, 413

U.S. at 10); see also Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402,

406, 408 (4th Cir. 2011) (applying political-question doctrine to dismiss suit

regarding electrocution during generator repair that occurred on Army base near

Fallujah, Iraq—in “combat theatre” but not in combat).

Fourth Circuit. The Fourth Circuit has also held that a contractor’s defense

injects a political question into a battlefield-tort suit. See Taylor, 658 F.3d at 411-

13
12. In Taylor, a marine was electrocuted while trying to install a backup generator

at an Army base in Iraq. He alleged that KBR, the contractor in charge of

maintaining electrical facilities on the base, disregarded explicit instructions not to

turn on the generator. Its activation caused the soldier’s injuries.

Unlike in Carmichael, the Army did not have pervasive control. Indeed, the

contract with the Army assigned KBR complete discretion over generator

maintenance and safety of base residents during KBR operations. Id. at 411.

Nonetheless, the court held that KBR’s contributory-negligence defense introduced

non-justiciable political questions. Id. at 411-12. Deciding “the merits of Taylor’s

negligence claim would require the judiciary to question ‘actual, sensitive judgment

made by the military,’” such as whether Taylor and his fellow marines had made a

reasonable decision to work on the generator, and whether the base leadership had

acted reasonably in determining the allocation of backup power generators to various

areas of the base. Id. As a result, the claim was non-justiciable. Id.

Third Circuit. The Third Circuit has also held that a contractor’s defense

must be appraised when assessing whether the political-question doctrine applies.

Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 465-66 (3rd Cir. 2013).

In Harris, a soldier was electrocuted while showering in a military barracks in Iraq.

Id. at 463. The barracks was in an old building known to have significant electrical

14
problems, and KBR allegedly failed to ground and bond the shower’s water pump.

Id.

As in Taylor, KBR had—through its contract with the military—significant

discretion over how to accomplish repairs at the barracks, but analysis of the claims

and defenses was nevertheless needed to decide whether the claim involved a

political question. Id. at 467. Although the plaintiff’s claims did not in themselves

raise a political question, id. at 467-69, KBR’s defenses potentially did. Id. at 469.

KBR alleged that the military’s actions in providing unsafe barracks were the sole

cause of the soldier’s death. Id. at 470. Ultimately, the Third Circuit concluded that

the political-question determination depended on which state’s law applied. Id. at

474. It thus remanded the case so that the district court could make a choice-of-law

determination. Id. at 482.

Because Texas law was implicated in Harris, the Third Circuit’s analysis is

particularly instructive here. The court concluded that, if Texas law applied, the case

would be nonjusticiable under the political-question doctrine. Id. at 474. This is

because of Texas’ proportionate-responsibility scheme:

If a jurisdiction uses a proportional-liability system which assigns
liability by the degree of fault, then a proximate-cause defense
introduces a nonjusticiable issue. In such a system, there is simply no
way to determine damages without evaluating military decisions. The
fact finder cannot decide the respective degrees of fault as between a
military contractor like KBR and the military without evaluating the
decisions made by each—particularly, the military’s decisions to house
troops in unsafe barracks that would not be repaired.

15
Id. As support for its conclusion, the court cited Fisher v. Halliburton, in which the

Fifth Circuit explained that Texas’s proportionate-liability scheme could introduce

a political question but resolved the case on other grounds. 667 F.3d 602, 621-22

(5th Cir. 2012).

Fifth Circuit. The Fifth Circuit has taken the same approach as the Third,

Fourth, and Eleventh Circuits. See Lane, 529 F.3d at 564 (“Ultimately, we focus our

attention on causation because it is under this element that the confluence of the

Plaintiffs’ proof and KBR’s defense presents the greatest potential for

inextricableness.”). In Lane, civilian-contractor truck drivers sued their employers,

Halliburton and KBR, for injuries they sustained when Iraqi insurgents attacked their

fuel-transport convoy. Id. at 555. The drivers contended their employers were

negligent in continuing the convoys despite awareness of a strong likelihood of

attacks, and for fraud in promising them 100% safety as a condition of employment.

Id. at 554-55. The employers alleged, instead, that the insurgents’ attack and the

military’s failure to adequately protect the convoys caused the plaintiffs’ injuries.

Id. at 566.

The Fifth Circuit declined to dismiss the case on political-question grounds

under the record presented, although it noted that “further factual development very

well may demonstrate that the claims are barred.” Id. at 567. The court held that the

fraud claims “might be triable without raising a political question because the court

16
could assess [the employers’] liability by simply being aware of the information the

military provided to [the employers], not second-guessing that information.” Id. The

court came to a similar conclusion as to the negligence claims, although they “move

precariously close to implicating the political question doctrine.” Id. However, the

court’s analysis hinged on its understanding that Texas law could impose liability

on the employers as long as their conduct was a cause of the harm, notwithstanding

a superseding or intervening cause. See id. at 566-67.

AMK9 submits, however, that the Circuit’s understanding of Texas law is

incomplete. The Circuit did not take into account Texas’s proportionate-

responsibility scheme, under which the trier of fact must apportion all causes-in-fact

of the harm, including actions of any responsible third party such as the military. See

TEX. CIV. PRAC. & REM. CODE §33.003(a). The court did not have the benefit of

recent Texas jurisprudence emphasizing that all common law defenses are governed

by proportionate responsibility, and the jury must consider all acts contributing in

any way to cause the harm. See Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d

553, 559 (Tex. 2015); Dugger v. Arredondo, 408 S.W.3d 825, 832 (Tex. 2013). In

fact, a subsequent Fifth Circuit decision recognized that, when the military is

designated as a responsible third party under Texas’s proportionate-responsibility

scheme, the political-question doctrine is “a significant issue.” Fisher, 667 F.3d at

621; see also McManaway, 554 Fed. App’x. 348 n.1 (Jones, J., dissenting to denial

17
of reh’g en banc) (recognizing that when the government is designated as an RTP,

“the jury [has] to formally assess a percentage of liability against [it] despite its

sovereign immunity from suit”).

Courts must analyze claims and defenses in determining whether the political

question doctrine applies in battlefield tort cases. Four judges of the Fifth Circuit

have opined that competing claims of causation involving the military always raise

a political question, regardless of which state’s law applies. McManaway, 554 Fed.

App’x. at 351-52 (Jones, J., dissenting from denial of reh’g en banc) (“Since

causation is always a necessary element, no particular tort regime can make the

problem go away.”). Either way, because Freeman has sued under Texas law, the

Army’s potential responsibility for the harm must be part of the political-question

analysis.

Freeman does not discuss these federal cases as a part of her political-question

analysis. Rather, she limits herself to an abstract discussion of the Baker v. Carr

factors that ignores AMK9’s defense. But neither federal precedent nor Texas law

allows the Army’s responsibility to be ignored. “If we must examine the Army’s

contribution to causation, ‘political question’ will loom large.” Lane, 529 F.3d

at 561.

18
 3. AMK9’s defense that the Army caused all or part of
Freeman’s alleged injury makes her claim nonjusticiable.
In assessing whether a political question exists, the Court must “look beyond

the complaint” [and] consider [] how [Freeman] might prove [her] claim [] and how

[AMK9] would defend.” Taylor, 658 F.3d at 409; Lane, 529 F.3d at 565; see also

Harris, 724 F.3d at 465-66. “[Freeman’s] claims might still present unreviewable

military decisions if proving those claims or [AMK9’s] defenses necessarily requires

evaluating such decisions.” Harris, 724 F.3d at 467 (emphasis added). Freeman’s

claims are justiciable only if AMK9’s actions “form the sole issues.” Lane, 529 F.3d

at 557.

Freeman argues that her pleadings do not implicate the kennel’s design, but

only (1) the dog’s training, and (2) the handler’s conduct after the dog escaped.

Appellant’s Br. at 6, 24-25. But Freeman cannot pre-determine the political-question

analysis unilaterally. Defenses must be considered in the political-question analysis,

and AMK9 has pleaded comparative responsibility as a defense. See 1 CR 219.

Under Texas proportionate-responsibility law, the jury must consider and apportion

all causes of the injury. Nabors, 456 S.W.3d at 560 (“[F]act-finders should consider

each person’s role in causing, ‘in any way,’ harm for which recovery of damages is

sought.”).

This case cannot be litigated without evaluating military decisions regarding

kennel design and use. It is therefore not justiciable. See Lane, 529 F.3d at 557; see

19
also McManaway, 554 Fed. App’x. at 350 (Jones, J., dissenting to denial of reh’g en

banc) (“[C]ases involving competing claims of negligence by the United States

military and a contractor are barred from federal court adjudication.”). Because of

the competing claims of fault and causation, the claims are “inextricable” from the

first four Baker factors.

The parties disagree on a decisive threshold issue of Texas law: the viability

of AMK9’s defense that the Army is at least partially at fault for Freeman’s alleged

injury. There is evidence that the Army’s kennel—which the Army required AMK9

to use—contained dividers between individual enclosures that were too low,

enabling Kallie to leap into another dog’s unlocked enclosure and then run outside

through the main kennel’s open door. 1 CR 398, 401. AMK9 contends that the

dividers’ height was a contributing cause of Freeman’s alleged injury. 1 CR 221,

436-38; 1 RR 24.

Freeman’s brief discussion of the Baker factors ignores the importance of

AMK9’s defense and, therefore, does not address the applicable legal standard. But

Freeman does make three arguments that deserve a response. First, she states that

the kennel’s design was not a “strategic” decision by the Army. Appellant’s Br. at

13. She cites no authority that “strategic” is a requirement, but presumably contends

that the kennel design is not important enough to be protected by the political-

question doctrine. She does not offer any evidence or argument to support her

20
statement, nor does she dispute that the kennel’s design was a but-for cause of her

asserted injury.

Caution is warranted when making presumptions about the relative

importance of military decisions. If viewed in isolation, the military’s failure to

provide a backup generator to a tank ramp, at issue in Taylor, might not seem

“strategic.” However, backup power was a limited resource at the camp, available

to the “battle square,” but not to other areas. Taylor, 658 F.3d at 406. Similarly, the

military’s decision to house soldiers in an old building with faulty wiring, at issue in

Harris, might not seem strategic. But the building was chosen because it was less

vulnerable than other locations to missile and mortar attacks. Harris, 724 F.3d

at 471.

Neither the Fourth nor Third Circuits second-guessed the “strategic” nature of

the military’s decisions when evaluating whether the political-question doctrine

applied. Likewise, there could be multiple important reasons for the kennels’ design

and the Army’s requirement that contractors utilize them: scarcity of building

materials and the need for maximum efficiency in transporting war material to

remote forward-operating bases are only a few that come to mind. The limited

capacity of courts to evaluate the strategic nature of military decisions confirms that

the question is not part of the political-question analysis. See Gilligan, 413 U.S. at

10 (“Courts lack the necessary standards to review military judgments involving

21
“complex[], subtle, and professional decisions as to the . . . equipping . . . of a

military force.”).

Freeman also contends there is no evidence that the Army owed her a duty to

“supply . . . non-defective kennels.” Appellant’s Br. at 15. She argues there is no

evidence that the kennel was defective or that any defects caused Kallie to escape.

Id. at 15-16. But AMK9 was not required to demonstrate a “defect.” Negligence in

design of the kennels or in the requirement that they be utilized exclusively justifies

the Army’s inclusion as a responsible third party. See TEX. CIV. PRAC. & REM. CODE

§33.003(a). In any event, Freeman’s alleged injuries occurred only because the dog

escaped, which would not have happened had the internal kennel walls confined her.

The decisions about the effectiveness of the kennel as an instrument of confinement

were made by the Army—not AMK9.

Freeman argues that Texas law does not support a proportionate-responsibility

question regarding the Army’s fault for Freeman’s alleged injuries because only a

domestic animal’s owner or “keeper” has a duty of care regarding the animal.

Appellant’s Br. at 17-19. The Army was not Kallie’s owner or keeper, she argues,

and thus had no duty to help prevent the alleged attack. Id.

But Texas law does not embrace such a cramped view of duty. Rather, the

scope of a duty in any given case is governed by foreseeability. See Nabors, 456

S.W.3d at 565 (Tex. 2015) (recognizing “the duty everyone has to guard against

22
foreseeable risks—a duty that has been recognized at least since Palsgraf v. Long

Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928)”). “[F]oreseeability turns on

existence of a general danger, not awareness of the exact sequence of events that

produces the harm.” Id. (citing Mellon Mortg. Co. v. Holder, 5 S.W. 3d 654, 655

(Tex. 1999)).

The cases Freeman cites do not contradict these longstanding principles. She

relies on this Court’s decision in Koepke v. Martinez, 84 S.W.3d 393 (Tex. App.—

Corpus Christi 2002, pet. denied). In Koepke, Teresa Canales bought a Shar-Pei

named Jackie Chan from James Koepke. Koepke, 84 S.W.3d at 395. Canales sent

her employee, Maria Martinez, to pick up the dog. Id. Later, at Canales’s house, the

dog attacked Martinez’s husband, injuring him. Id. Martinez’s husband sued

Koepke—the dog’s former owner—for negligence and obtained a judgment against

him. Id. This Court reversed, holding that Koepke had no duty as a matter of law

“[b]ecause Koepke was neither the owner, nor the handler, of Jackie Chan at the

time of the incident.” Id. at 396.

Freeman suggests that Koepke establishes a bright-line rule for dog attacks:

liability lies only against the owner or handler. Appellant’s Br. at 17-19. But the

Court was merely describing the most common characteristics of dog-attack claims,

not setting parameters: “[t]he gist of a [dog-attack] action . . . is usually negligence

23
of the owner or keeper in the keeping or handling of the animal.” Koepke, 84 S.W.3d

at 396 (emphasis added).

Far from setting a hard-and-fast rule about duty, this Court employed

traditional foreseeability analysis, emphasizing that the attack occurred on

Canales’s—not Koepke’s—property, id., even though this fact is not coextensive

with status as the dog’s owner or handler. The Court also suggested its no-duty

holding is limited to the specific allegation that Koepke “mishandled” Jackie Chan.

Id. (“Appellees cannot now argue Koepke mishandled Jackie Chan because he was

neither the owner, nor the handler at the time of the incident.”). 6 This statement

indicates the duty analysis would be different if the plaintiff had alleged a different

negligent act, or if the facts had given rise to potential premises liability. See Del

Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010) (recognizing that

premises owner owes invitees a duty of ordinary care).

Finally, as support for its no-duty holding, this Court cited a Texas Supreme

Court decision that employed traditional, case-specific foreseeability analysis.

Koepke, 84 S.W.3d at 396 (citing Greater Houston Transp. Co. v. Phillips, 801

6
The other decisions Freeman cites to support her no-duty rule similarly state the rule in terms of
negligent-handling claims only, not negligence actions regarding dog attacks in general. See
Bushnell v. Mott, 254 S.W.3d 451, 452 (Tex. 2008) (per curiam) (holding that owner of dog can
be liable for negligent handling); Labaj v. VanHouten, 322 S.W.3d 416, 420-21 (Tex. App.—
Amarillo 2010, pet. denied) (same); Allen v. Albin, 97 S.W.3d 655, 660 (Tex. App.—Waco 2002,
no pet.) (“[T]he elements of an action for injuries caused by the negligent handling of an animal
are: (1) the defendant was the owner or possessor or an animal . . . .”) (emphasis added).

24
S.W.3d 523, 525 (Tex. 1990) (stating that cases imposing a duty to protect third

parties “involve a straightforward application of the Palsgraf rule: ‘[t]he risk

reasonably to be perceived defines the duty to be obeyed.’”)).

Koepke, therefore, does not preclude AMK9 from designating the Army as an

RTP and seeking to assign it fault for causing Freeman’s alleged injuries. The Army

had a duty even though it was neither owner nor handler of the dog in question. The

Army contracted with AMK9 to provide dogs and handlers for explosive and

narcotics detection, housed AMK9’s dogs on the busy forward-operating base where

the alleged attack occurred, and required the dogs to be housed in kennels that the

Army designed and constructed. The Army required AMK9 to use Army kennels,

so the Army had a duty to minimize the risk of escape by providing adequate internal

dividers. The incident report and the email are evidence that the low internal dividers

contributed to the dog’s escape and the resulting alleged attack on Freeman. See 1

CR 398, 401. After the incident with Kallie, tops were put on the kennels. 1 CR

398.

Finally, Freeman contends that AMK9 had sole responsibility for kennel

maintenance. Appellant’s Br. at 16. This is true, but irrelevant, because AMK9

contends the design—not maintenance—of the kennel contributed to Freeman’s

alleged injuries. 1 CR 221, 436-38; 1 RR 24.

25
 Citing Harris, Freeman also argues that any claim not implicating

proportionate responsibility should proceed. Appellant’s Br. at 16. But, as has been

demonstrated, all of Freeman’s claims are subject to apportionment. Chapter 33

applies to “any cause of action based on tort.” TEX. CIV. PRAC. & REM. CODE

33.002(a). Freeman brought negligence and strict liability claims, 1 CR 10-11, both

of which are torts. See JCW Elecs., Inc. v. Garza, 257 S.W.3d 701, 704 (Tex. 2008).

AMK9 also asserts tortious conduct—that the Army negligently caused or

contributed to cause Freeman’s alleged injury. 1 CR 221 (first amended answer),

436-38 (RTP designation). Therefore, all of Freeman’s claims are subject to the

proportionate-responsibility statute.

For that reason, her claims “inextricably” involve a political question. This

case is non-justiciable under the first four Baker factors. See Harris, 724 F.3d 474

(case is non-justiciable if Texas law applies); Taylor, 658 F.3d at 411-12 (political-

question doctrine applies to competing claims of causation involving military

decisions); Carmichael, 572 F.3d at 1286 (same); see also McManaway, 554 Fed.

App’x. at 350 (Jones, J., dissenting to denial of reh’g en banc) (same) (citing Lane,

529 F.3d at 567).

26
 B. Freeman’s claim should be dismissed because it is preempted
under federal law.

1. The Federal Tort Claims Act is jurisdictional in Texas courts.
Freeman’s claims are also preempted under the combatant-activities

exception to the Federal Tort Claims Act (“FTCA”). Although federal preemption

does not typically divest a state court of jurisdiction, an exception applies when the

preempted claim is subject to exclusive federal-court jurisdiction. Mills v. Warner

Lambert Co., 157 S.W.3d 424, 427 (Tex. 2005) (per curiam). Federal district courts

have exclusive original jurisdiction over FTCA claims—“civil actions on claims

against the United States for money damages.” 28 U.S.C. §1346(b)(1); Merkulov v.

United States Park Police, __ F.Supp.3d __, Civil Action No. 14-0854 (BAH), 2014

WL 6743608, at *4 (D.D.C. Dec. 1, 2014). Thus, if the combatant-activities

exception applies to Freeman’s claims, it divests Texas courts of jurisdiction.

2. Federal policy under the FTCA preempts Freeman’s claims.
The FTCA is a limited waiver of the United States’ sovereign immunity. 28

U.S.C. §2674. There are exceptions, one of which is for combatant activities. 28

U.S.C. §2680(j). Under that exception, the United States retains immunity for “[a]ny

claim arising out of the combatant activities of the military of naval forces, or the

Coast Guard, during time of war.” Id.

Because contractors are not part of the government, the FTCA’s waiver and

exceptions do not apply directly to them. See 28 U.S.C. §2671. But the U.S.

27
Supreme Court has held that the FTCA expresses federal policies that impliedly

preempt some state claims against government contractors providing services to the

military. Boyle v. United Techs., 47 U.S. 500, 511-12 (1988).

In Boyle, the Supreme Court held that a different FTCA exception (the

discretionary-function exception) expresses a federal policy that preempts state-law

tort claims. Id. This exception precludes suits for “[a]ny claim . . . based upon the

exercise or performance or the failure to exercise or perform a discretionary function

or duty on the part of a federal agency or an employee of the Government, whether

or not the discretion involved be abused.” 28 U.S. C. §2680(a). The discretionary-

function exception expressed a federal policy to prevent courts from second-

guessing government decisions that “often involve[] not merely engineering analysis

but judgment as to the balancing of many technical, military, and even social

considerations.” Boyle, 487 U.S. at 511.

Federal circuit courts have, in turn, applied Boyle to a second FTCA

exception: the combatant-activities exception, which preempts state-law claims

“arising out of the combatant activities” of the military during wartime. See 28

U.S.C. §2680(j). This exception may foreclose, by means of preemption, suits

against defense contractors. Saleh v. Titan Corp., 580 F.3d 1, 9 (D.C. Cir. 2009).

The first step is to identify the federal interest that the combatant-activities exception

protects. Harris, 724 F.3d. at 479.

28
 The three federal circuit courts to have considered the question agree that there

is a unique federal interest in the management of wars. Id.; Saleh, 580 F.3d at 5-7;

Koohi v. United States, 976 F.2d 1328, 1334 (9th Cir. 1992). They are divided,

however, about the policy’s scope and the applicable test. The Ninth Circuit takes

the narrowest view. In a seminal decision, it defined “combatant activities” to

exclude recovery for “not only physical violence, but activities necessary to and in

direct connection with actual hostilities.” Johnson v. United States, 170 F.2d 767,

770 (9th Cir. 1948). However, a more recent Ninth Circuit decision seems to protect

contractors from liability only to those “against whom force is directed.” Koohi, 976

F.2d at 1337. The District of Columbia Circuit has taken a broader view, holding

that exception’s purpose is “the elimination of tort from the battlefield.” Saleh, 580

F.3d at 7.

The Third Circuit rejected Koohi’s approach as too narrow for the operative

language, which encompasses any claim “arising out of” combatant activities.

Harris, 724 F.3d at 480 (citing 28 U.S.C. §2680(j)). It also pointed out that such an

interpretation would not prevent suits against the military for friendly fire, contrary

to the statute’s plain language. Id. It also rejected the D.C. Circuit’s view of the

federal policy as too broad, stating that it “loses sight of the fact that . . . the [FTCA]

does not provide immunity to nongovernmental actors.” Id. The Third Circuit held

29
that the purpose of the combat-activities exception is “to foreclose state regulation

of the military’s battlefield conduct and decisions.” Id.

Regardless of its disagreement as to the exception’s purpose, the Third Circuit

adopted the D.C. Circuit’s test, which inquires whether a contractor’s services are

“integrated” with combatant activities and the extent to which the military retained

command authority. Harris, 724 F.3d at 480 (quoting Saleh, 580 F.3d at 9). It held

the test was “well-tailored” to the exception’s purpose:

The first prong—whether the contractor is integrated into the military’s
combatant activities—ensures that preemption occurs only when
battlefield decisions are at issue. And the second prong—whether the
contractor’s actions were the result of the military’s retention of
command authority—properly differentiates between the need to
insulate the military’s battlefield decisions from state regulation and the
permissible regulation of harm resulting solely from contractors’
actions.

Id. at 481.

Applying this test, the Third Circuit held that the exception did not preempt

the suit against KBR for the faulty electric work in the military barracks in Iraq. Id.

The first prong was satisfied because “maintaining the electrical systems for a

barracks in an active war zone is analogous to supplying ammunition to fighting

vessels in a combat area and is certainly ‘necessary to and in direct connection’ to

the hostilities engaged in by the troops living in those barracks.” Id. (quoting

Johnson, 170 F.2d at 770). But the second prong was not satisfied because the

30
military did not retain command authority because the contract was “performance-

based” and thus did not prescribe how KBR was to do its work. Id.

By contrast, the D.C. Circuit held that the claim in that case—a tort suit

against private interpreters and interrogators employed at Abu Ghraib in Iraq—was

preempted, as the private contractors were integrated with military personnel, and

“the military retained control over the tactical and strategic parameters of the

mission.” Saleh, 580 F.3d at 2, 9.

The Fifth Circuit has not yet weighed in on the scope of the combatant-

activities exception, but four judges recently wrote a separate opinion on the subject.

See McManaway, 554 Fed. App’x. at 352-54 (Jones, J., dissenting to denial of reh’g

en banc). These judges indicated their agreement with the two-prong test adopted by

the D.C. and Third Circuits. See id. at 353-54. They also would have held that the

facts of the case—a tort suit by soldiers against KBR for chemical exposure while

protecting KBR employees working to restore operations at an Iraqi oil facility—

met the test and should be preempted. Id. at 354. Because the facility was subjected

to looting and sabotage, and because on some occasions work was halted because of

security concerns, the plaintiffs’ injuries were “’necessary to and in direct

connection with actual hostilities’ in Iraq.” Id. (quoting Johnson, 170 F.2d at 770).

The contractors’ “mission was fully intertwined with that of the military,” and “the

tasks were joint.” Id. Preemption furthered the exception’s purpose because:

31
 [e]ven a pinched reading of the combatant activities exception should
shield KBR and, indirectly, the United States from jurors’ state law-
based second-guessing. The United States ultimately pays the
judgment, if not by indemnifying KBR, then by having to pay ever-
higher costs for private contractors who must be hired to fill vital gaps
in military actions.

Id.

Freeman continues to focus on her allegations of negligent training and

conduct, emphasizing that these are (1) not the Army’s fault, and (2) not the result

of military decision-making. Appellant’s Br. at 32-34. She also contends that the

incident violated the Army’s own rules. Id. at 32-33. These arguments are beside

the point, as they do not address the tests adopted by any of the circuit courts that

have grappled with the question.

This Court should adopt the test utilized by the D.C. and Third Circuits

because it is consistent with the broad “arising out of” language in §2680(j). See

Harris, 724 F.3d at 480. Freeman’s claim satisfies the test. First, like supplying

ammunition, repairing oil-production facilities, and maintaining electrical systems

in a barracks, AMK9’s explosives and narcotics detection services were “necessary

to and in direct connection with actual hostilities” in Afghanistan. McManaway, 554

Fed. App’x. at 354 (Jones, J., dissenting to denial of reh’g en banc); Harris, 724 F.3d

at 481; Johnson, 170 F.2d at 770. Second, AMK9’s work was fully integrated with

the military. See 2 CR 1288 (¶4.1.5) (listing joint operations with “Government or

Coalition forces,” such as “circulation control and cordon support within base

32
perimeter,” “static and mobile vehicle checkpoints,” and “perimeter security.”).

Third, the military retained command authority. Although AMK9 was given

discretion in training the dogs and caring for them, and although AMK9 was

“responsible for management of CWD teams,” 2 CR 1285 (¶1.1), the operations

were joint, and the military retained overall operational command. 1 CR 266 (¶7).

For example, canine detection teams deployed to the base perimeter “will be used in

a patrol or detection capacity to compliment [sic] the security in-depth posture of the

installation at the Battlefield Commander’s discretion.” 2 CR 1285 (¶1.1). In short,

“the military retained control over the tactical and strategic parameters of the

mission.” Saleh, 580 F.3d at 2, 9. These facts are analogous to those of McManaway

and Saleh. Therefore, Freeman’s suit is preempted.

C. Because AMK9 was exercising discretion in performing a
governmental function, it is entitled to absolute official immunity.
Official immunity promotes effective government administration by ensuring

that officials are “free to exercise their duties unembarrassed by the fear of damage

suits.” Barr v. Matteo, 360 U.S. 564, 571 (1959) (plurality opinion). Its purpose is

not “to protect an erring official, but to insulate the decisionmaking process from the

harassment of prospective litigation.” Westfall v. Erwin, 484 U.S. 292, 295 (1988).

The doctrine rests on the premise that the threat of damage suits might “appreciably

inhibit the fearless, vigorous, and effective administration of policies of

government.” Barr, 360 U.S. at 571. Moreover, government is more effective and

33
efficient “if officials are freed of the costs of vexatious and often frivolous damages

suits.” Westfall, 484 U.S. at 295.

In Westfall, the U.S. Supreme Court recognized absolute official immunity

from state-law tort suits for federal officials who were exercising discretion while

acting within the scope of their official duties, so long as the public benefits derived

from the grant of immunity outweigh the costs. Westfall, 484 U.S. 292, 295-98 &

n.3 (1988). Although Westfall was superseded by the Federal Employees Liability

Reform and Tort Compensation Act, see 28 U.S.C. §2679(d), the common-law

“Westfall test remains the framework for determining when non-governmental

persons or entities are entitled to the same immunity.” Murray v. Northrop Grumman

Info. Tech., Inc., 444 F.3d 169, 174 (2d Cir. 2006); accord Houston Cmty. Hosp. v.

Blue Cross & Blue Shield of Tex., Inc., 481 F.3d 265, 269 (5th Cir. 2007); see also

Beebe v. Wash. Metro. Area Transit Auth., 129 F.3d 1283, 1289 (D.C. Cir. 1997).

Westfall immunity is absolute and applies to nongovernmental persons or

entities performing “quintessential government function[s]”. Murray, 444 F.3d at

175. A nongovernmental entity is entitled to official immunity from state tort

liability for discretionary acts that fall within the scope of that entity’s duty. Id. at

174. AMK9 did not include Westfall immunity as a ground for its plea to the

jurisdiction, but immunity from suit may be raised for the first time on appeal. San

34
Antonio Water Sys. v. Nicholas, __S.W.3d __, 2015 WL 1873217, at *3 (Tex. Apr.

24, 2015).

The Second Circuit held that Westfall immunity applied to a government

contractor serving as program administrator for the Irish Peace Process Cultural and

Training Program, which brought young Irish people to the U.S. to “develop job

skills and conflict resolution abilities.” Murray, 444 F.3d at 172. The State

Department and the Immigration and Naturalization Service (“INS”) had delegated

day-to-day operations to the contractor, including monitoring the youths’

employment status. Id. After the contractor informed the State Department and the

INS of accusations from an employer that two of the Irish youths might be involved

in terrorism, the youths sued the contractor. Id. at 173.

The Second Circuit held that the contractor’s actions “easily satisfy the

Westfall test.” Id. at 175. Monitoring the youths’ employment status while in the

U.S. was a quintessentially governmental function and within the course and scope

of contractor’s duties. Id. And its action was discretionary. Id. The government did

not prescribe the contractor’s actions when faced with allegations that program

participants may be national-security threats. Id. The contractor’s employees “were

left to determine the appropriate course of action.” Id. Finally, with regard to the

benefits and detriments of granting immunity, the court held “[t]he balance here tips

strongly in favor of immunity,” as forwarding the information “is precisely the type

35
of discretionary action that sound public policy requires to be protected by official

immunity.” Id. Concluding that contractors should be encouraged to convey such

information to the government, the court held that applying immunity furthered the

purpose of the Westfall doctrine. Id. at 176.

Similarly, a federal district court in New York held that Westfall immunity

applied to a private contractor that provided detention officers to the federal

government to assist with “monitoring, transporting, and controlling persons

detained for being illegally in the United States.” Viehdeffer v. Tryon, 2012 WL

3746372, at *12 (W.D.N.Y. Aug. 28, 2012) (unpublished). In Viehdeffer, a detention

officer sued her former employer, the contractor, for falsely reporting to the

government that she had been arrested. Id. at *1. She was fired, at the government’s

request, because of the report. Id.

Applying the Westfall test, the court concluded that criminal detention is “an

exclusively governmental function.” Id. at *12. Further, the contractor’s action was

within the scope of its contract because the contract obligated the contractor to

provide qualified detention officers and to “report to ICE any conduct that might be

characterized as ‘immoral’ or as constituting ‘any other criminal offense.’” Id. The

contractor’s report was discretionary because it had to “determine what

information . . . was sufficiently immoral or criminal to warrant it being transmitted

to ICE.” Id. And, public policy favored immunity’s application because deterring

36
companies from sharing information with the government could “negatively affect[]

that agency’s ability to ensure the safe and secure administration of detention

centers.” Id.

This case is analogous to Murray and Viehdeffer. AMK9 is performing a

quintessentially governmental function by providing the U.S. Army with contract

working dog teams to detect IEDs in a combat zone. AMK9’s canine teams

supplement the Army’s own military working dog teams “to execute force protection

requirements in support of combat operations.” 2 CR 1285 (¶ 1.1). AMK9’s role is

analogous to that of the Viehdeffer contractor in providing detention officers.

Also, the conduct at issue here was within the course and scope of AMK9’s

contractual duties, as AMK9 and its employees were responsible for caring for and

supervising Kallie. See 2 CR 1292-93. Likewise, the AMK9 actions that Freeman

alleges led to her injuries—the failure to control canine Kallie and properly train

both her and her handler, 1 CR 5-9—were discretionary. The contract establishes

certification requirements for canine teams, 2 CR 1303-07, and requires training,

2 CR 1288 (¶4.1.4), but it prescribes neither training techniques nor specific actions

handlers must take to control dogs.7 Rather, the contract establishes performance

goals, 2 CR 1288 ¶4.1.4 (“Contractor is required to conduct additional training and

7
The contract prescribes the content of training in only one area: explosives safety training for
handlers. 2 CR 1289 ¶4.2.1.

37
maintain [patrol explosive detector dog] detection proficiency at 95 percent or better

on explosive compounds in common usage by enemy forces in Afghanistan.”),

leaving to AMK9’s discretion how to achieve them. This discretion is analogous to

that provided in Murray and Viehdeffer.

Finally, the benefits of granting immunity to AMK9 in this circumstance

outweigh the detriments. Freeman would not be able to recover from AMK9 for her

alleged injuries, but she is not without a remedy. Under the Defense Base Act,

defense contractors providing services to the Armed Forces overseas (such as

Freeman’s employer, Honeywell) must carry workers’ compensation coverage. See

42 U.S.C. §§1651-54; Jones v. Halliburton, 791 F.Supp.2d 567, 582 (S.D. Tex.

2011). Indeed, Freeman may already be in the process of receiving DBA benefits.

On the other hand, significant harm could occur if immunity is not afforded

here. The decisionmaking process about proper training for dogs and handlers must

be protected. Just as a court should be loathe to second-guess training for the

military per se, it should also be reluctant to sit in judgment on the equivalent for a

government contractor, especially when contract teams are replacing military teams,

are integrated in military operations, and are performing quintessential military

functions under the overall command of military authorities. See 2 CR 1288

(requiring AMK9 to maintain 95% success rate in detection performed in joint

operations with Government and Coalition forces). Otherwise, readiness for IED

38
detection—a crucial military function—would be compromised. Just as in

Viehdeffer, the threat of suits like Freeman’s could lead contractors like AMK9 to

train their dogs to be more docile and hesitant, which would decrease effectiveness

for detection dogs working in a dangerous and hostile combat zone. It could also

discourage private contractors from providing crucial services to the military.

The Westfall test is satisfied. AMK9 is entitled to absolute official immunity

from Freeman’s claims.

D. AMK9 is immune under the Defense Production Act of 1950.
AMK9’s contract with the Defense Department is a “rated order” contract

with assigned priority rating “DO-C9.” 1 CR 265-66. As a contractor under a rated-

order contract, AMK9 is immune under the Defense Production Act of 1950. See

50 U.S.C. Appendix §2061 et. seq. Rated order contracts are deemed by the

President of the United States to be “necessary or appropriate to promote the national

defense.” See 50 U.S.C. §2071(a)(1). The Act contains a broad immunity provision:

No person shall be held liable for damages or penalties for any act or
failure to act resulting directly or indirectly from compliance with a
rule, regulation, or order issued pursuant to this Act . . . .

50 U.S.C. Appendix §2157. “Order” means an order of goods or services (such as

“placing” and order), not a command or decree. See 50 U.S.C. §2071(a) (discussing

“performance under contracts or orders (other than contracts of employment)”); see

1 CR 267 (describing Defense Department priorities for rated-order contracts as

39
compared to unrated-order contracts). The United States Supreme Court has held

that this provision “plainly provides immunity.” Hercules Inc. v. United States, 516

U.S. 417, 429 (1996).

The Act provides broad protection to government contractors in their

performance of defense-related contracts, a point that Freeman does not dispute. She

argues that the scope of the protection extends only to contract actions by customers

of the contractor whose orders were delayed or denied by the contractor’s fulfillment

of the government’s needs. Under Freeman’s interpretation, therefore, the Act

would not provide immunity from tort suits such as this one.

Freeman relies solely on an Eighth Circuit decision that, in turn, relies on the

Federal Circuit decision that the Supreme Court reviewed in Hercules. See

Appellant’s Br. at 40-41 (citing United States v. Vertac Chem. Corp., 46 F.3d 803,

812 (8th Cir. 1995) (citing Hercules, Inc. v. United States, 24 F.3d 188, 203-04 (Fed.

Cir. 1994), aff’d on other grounds, Hercules, 516 U.S. at 429)). The Supreme Court

affirmed the judgment but explicitly declined to decide the scope of the Act’s

immunity. Hercules, 516 U.S. at 430 n.14. AMK9 is aware of no other decisions

that settle this question.

Courts are guided principally by a statute’s text. The statute’s plain language

is broad, conferring immunity for “any act or failure to act.” 50 U.S.C. Appendix

§2157. If Congress had intended to limit the scope to contract actions by the

40
contractor’s competing customers, it could have said so. See United States v.

Bradshaw, 840 F.2d 871, 875 (11th Cir. 1988). The statute simply cannot be read as

Freeman suggests.

Freeman also argues that the Act’s immunity is not jurisdictional, relying on

a Fifth Circuit decision holding that the Act’s immunity is not appealable in federal

court under the collateral-order doctrine. Appellant’s Br. at 39-40 (citing Martin v.

Halliburton, 618 F.3d 476, 485-86 (5th Cir. 2010)). However, the federal collateral-

order doctrine is not always co-extensive with analysis of subject-matter jurisdiction

in Texas courts. Compare Brown & Gay v. Olivares, 2015 WL 1897646, at *5 n.8

(Tex. Apr. 24, 2015) (disposing of an issue of derivative sovereign immunity in

context of plea to the jurisdiction), with Ackerson v. Bean Dredging LLC, 589 F.3d

196, 207 (5th Cir. 2009) (holding that derivative sovereign immunity under Yearsley

v. W.A. Ross Constr. Co., 309 U.S. 18 (1940), does not deprive district court of

jurisdiction).

As the purpose of the Defense Production Act is to allow contractors to

concentrate all their resources on providing goods and services to the government

for purposes of national defense, it should be construed as jurisdictional to spare

contractors the burdens of defending suits that will only prove fruitless, as

contractors cannot be liable. Such a construction would also spare the military itself

from intrusive and time-consuming discovery. For example, if this suit proceeds,

41
the parties will need to obtain substantial discovery from the Defense Department,

including the depositions of multiple officers from Camp Mike Spann. The Defense

Production Act was intended to prevent this sort of disruption of military activities.

II. The trial court correctly denied Freeman’s request to replead.
Even if the plea was correctly granted, Freeman asserts that the trial court

erred in dismissing her claim because she is entitled to an opportunity to amend her

pleadings to bring her claim within the trial court’s jurisdiction. Appellant’s Br. at

41-43. Courts should afford a plaintiff the opportunity to replead “[i]f the pleadings

do not contain sufficient facts to affirmatively demonstrate the trial court’s

jurisdiction.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27

(Tex. 2004). But “[i]f the pleadings affirmatively negate the existence of jurisdiction,

then a plea to the jurisdiction may be granted without allowing the plaintiffs an

opportunity to amend.” Id. at 227.

The trial court correctly dismissed, as Freeman cannot show the defect is

curable. Indeed, she did not append a proposed revised pleading to her motion for

leave to amend, and in the motion she never once articulates how she would replead

to bring her claims within the trial court’s jurisdiction. The contours of Freeman’s

claim and AMK9’s defenses are clear. This is not a case in which pleading additional

facts would change the jurisdictional analysis. Additional facts will not alter:

42
 • The need for the factfinder to weigh the Army’s fault (a political

question) against AMK9’s and HCDC’s fault as part of its

proportionate-responsibility analysis;

• The integration of AMK9 with the military on the battlefield in

Afghanistan (establishing preemption under combatant activities

exception of FTCA);

• AMK9’s contractual discretion in training dogs and handlers in the

performance of its governmental function (establishing Westfall

immunity)

• The fact that the contract is a “rated order” contract (establishing

immunity under the Defense Production Act of 1950).

Indeed, the Conclusion to Freeman’s motion to amend makes clear that the pleading

defect is legal, and therefore incurable: “[I]t is possible to amend Freeman’s Original

Petition to emphasize and clarify that the only matter at issue in this lawsuit is

AMK9’s failure to properly attend to the CWD’s training, handling, and behavior—

which even AMK9 concedes is solely its responsibility.” 2 CR 1400. As AMK9 has

demonstrated, Freeman cannot plead around the proportionate-responsibility statute.

The trial court properly denied Freeman’s request to replead and dismissed the case.

43
III. The trial court’s grant of AMK9’s responsible-third-party designation
was correct.
Freeman also challenges the trial court’s grant of AMK9’s designation of the

Army as a responsible third party regarding Freeman’s injuries. Chapter 33

provides:

the court shall grant leave to designate the person as a responsible third
party unless the objecting party establishes: (1) the defendant did not
plead sufficient facts concerning the alleged responsibility of the person
to satisfy the pleading requirement of the Texas Rules of Civil
Procedure . . .

TEX. CIV. PRAC. & REM. CODE §33.004(g)(1). Freeman did not make the showing

§33.004(g)(1) requires. See 1 CR 590. Nor could she have done so, because AMK9

pleaded sufficient facts to establish all elements of a negligence claim against the

Army: duty, negligence, and proximate cause. See 1 CR 221 (first amended answer),

436-38 (RTP designation). Moreover, the record contains evidence of those facts. 1

CR 266, 398, 401. Thus, the trial court correctly granted the RTP designation.

CONCLUSION AND PRAYER
Appellee American K-9 Detection Services, LLC respectfully requests that

the Court affirm the trial court’s grant of the plea to the jurisdiction and its dismissal

of the case.

44
Respectfully submitted,

/s/ Wallace B. Jefferson
Wallace B. Jefferson
State Bar No. 00000019
wjefferson@adjtlaw.com
Rachel A. Ekery
State Bar No. 00787424
rekery@adjtlaw.com
Amy Warr
State Bar No. 00795708
awarr@adjtlaw.com
Alexander Dubose Jefferson &
Townsend LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701-3562
Telephone: (512) 482-9300
Facsimile: (512) 482-9303

James M. Parker
State Bar No. 15488710
jparker@namanhowell.com
NAMAN, HOWELL, SMITH & LEE
10001 Reunion Place, Suite 600
San Antonio, Texas 78216
Telephone: (210) 731-6364
Facsimile: (210) 785-2964

Counsel for Appellee American K-9
Detection Services, LLC

45
 CERTIFICATE OF SERVICE
On June 4, 2015, I electronically filed this Brief of Appellee with the Clerk of

the Court using the eFile.TXCourts.gov electronic filing system which will send

notification of such filing to the following.

Frank Herrera, Jr. Albert D. “Pat” Pattillo, III.
State Bar No. 09531000 State Bar No. 15623350
fherrera@herreralaw.com pat@prhlaw.com
Javier Herrera PATTILLO RICHARDS & HARPOLD, P.C.
State Bar No. 24075498 280 Thompson Drive, Suite B
javier@herreralaw.com Kerrville, Texas 78028
THE HERRERA LAW FIRM, INC. Telephone: (830) 257-8080
111 Soledad Street, #1900 Facsimile: (830) 896-8489
San Antonio, Texas 78205
Telephone: (210) 224-1054 Attorneys for Appellee
Facsimile: (210) 228-0887 Hill Country Dog Center, LLC

Beth Watkins
State Bar No. 24037675
beth.watkins@watkinsappeals.com
Shannon K. Dunn
State Bar No. 24074162
shannon.dunn@watkinsappeals.com
LAW OFFICE OF BETH WATKINS
926 Chulie Drive
San Antonio, Texas 78216
Telephone: (210) 225-6666
Facsimile: (210) 225-2300

Attorneys for Appellant
LaTasha Freeman

/s/ Wallace B. Jefferson
Wallace B. Jefferson

46
 CERTIFICATE OF COMPLIANCE
Based on a word count run in Microsoft Word 2013, this brief contains 10,196

words, excluding the portions of the brief exempt from the word count under Texas

Rule of Appellate Procedure 9.4(i)(1).

/s/ Wallace B. Jefferson
Wallace B. Jefferson

47
 INDEX

1. Trial Court's Order granting plea to the jurisdiction (7-28-14)
2. Performance Work Statement

3. Freeman email and handwritten statement (11-16-11)

4. Freeman Affidavit
5. Dorough email and Freeman response (11-16-11)

6. AMK-9 Incident Report (9-11-11)
7. Affidavit of Willard Chipman (5-29-15)
8. Defense Priorities and Allocation System (DPAS)
APPENDIX 1
 CAUSE NO. CV-13-246

LATASHA FREEMAN § IN THE DISTRICT COURT
§
§
vs. § 1981 H JUDICIAL DISTRICT
§
AMERICAN K-9 DETECTION §
SERVICES, L.L.C. and HILL §
COUNTRY DOG CENTER, L.L.C. § BANDERA COUNTY, TEXAS

ORDER GRANTING PLEA TO THE JURISDICTION

On the 2nd day of July, 2014, the Court considered DEFENDANT, AMERICAN K-9

DETECTION SERVICES, LLC'S PLEA TO THE JURISDICTION, and after reviewing the

materials filed with the Court and hearing the arguments, the Court finds that the Plea to

the Jurisdiction should be GRANTED.

IT IS THEREFORE ORDERED that Defendant, American K-9 Detection Services,

LLC's Plea to the Jurisdiction is hereby GRANTED IN ALL THINGS, and American K-9

Detection Services, L.L.C. and Hill Country Dog Center, L.L.C. are both hereby dismissed

as parties to this case.

d~---­
SIGNED on ~l? . day of

p~
JAVIER HERRERA: Facsimile: (210) 228-0887
PLAINTIFF'S ATTORNEY

PAT PATILLO: Facsimile: (830) 896-8489
ATTORNEYS FOR HILL COUNTRY DOG CENTER, LLC

JAMES M. PARKER, JR.: Facsimile: (210) 785-2964
ATTORNEYS FOR AMERICAN K-9 DETECTION SERVICES, LLC

//,r;as ,4at-10,,J c:X 67- 7o--g"o

612
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