PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2325
_____________
CHERYL HARRIS, Co-administratrix of the Estate
of Ryan D. Maseth, deceased;
DOUGLAS MASETH, Co-Administrator of the Estate
of Ryan D. Maseth, deceased,
v.
KELLOGG BROWN & ROOT SERVICES, INC.,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-08-cv-00563
District Judge: The Honorable Nora B. Fischer
Argued June 22, 2010
Before: SMITH, FISHER, and COWEN, Circuit Judges
(Filed: August 17, 2010)
Patrick K. Cavanaugh (argued)
Stephen J. Del Sole
William S. Stickman, IV
Del Sole Cavanaugh Stroyd LLC
200 First Avenue
Suite 300, The Waterfront Building
Pittsburgh, PA 15222
Counsel for Appellee
Raymond B. Biagini
Kurt J. Hamrock
Michelle L. Hylton
Daniel L. Russell, Jr.
McKenna, Long & Aldridge
1900 K Street, N.W.
Washington, DC 20006
Counsel for Appellant
John R. Dingess
Joseph L. Luciana, III (argued)
Dingess, Foster, Luciana, Davidson & Chleboski LLP
20 Stanwix Street
PNC Center, Third Floor
Pittsburgh, PA 15222
Counsel for Appellant
William D. Wickard
K&L Gates
210 Sixth Avenue
Pittsburgh, PA 15222
Counsel for Appellant
2
OPINION
SMITH, Circuit Judge.
This case raises interesting and important questions about
the scope of the political question doctrine and the Federal Tort
Claims Act’s “combatant activities” exception. We do not reach
those questions now, however, because they are not properly
before us. We must dismiss this premature appeal for lack of
jurisdiction.
I.
This appeal arises from the accidental death of Staff
Sergeant Ryan Maseth, an active duty Army Ranger and Green
Beret serving in Iraq. On January 2, 2008, Sergeant Maseth was
showering in his quarters when the electric water pump
servicing the building short-circuited. Because the building’s
electrical system was not properly grounded, a charge flowed
through the pipes and water, shocking Sergeant Maseth and
inducing cardiac arrest.
His parents, Cheryl Harris and Douglas Maseth
(collectively, “Plaintiffs”) filed a wrongful death and survival
action against Kellogg Brown & Root Services, Inc. (“KBRSI”)
3
in Pennsylvania state court. KBRSI is a government contractor
that performs various services for the United States military in
combat zones, including Iraq. Pursuant to a contract with the
Army, KBRSI was responsible for electrical maintenance in the
building in which Sergeant Maseth was electrocuted. Plaintiffs
allege that the electrical problems in Sergeant Maseth’s building
were well-known; that KBRSI negligently failed to repair them;
and that this negligence caused the death of their son.
After properly removing the suit to the United States
District Court for the Western District of Pennsylvania,1 KBRSI
moved to dismiss under Rule 12 of the Federal Rules of Civil
Procedure. KBRSI identified two grounds for dismissal. First,
it argued that the case presented non-justiciable political
questions. See Baker v. Carr, 369 U.S. 186, 217 (1962).
Second, it argued that it was immune from suit under the
“combatant activities” exception to the Federal Tort Claims
Act’s waiver of sovereign immunity. See 28 U.S.C. § 2680(j)
(preserving immunity to “[a]ny claim arising out of the
combatant activities of the military or naval forces, or the Coast
Guard, during time of war”). The parties conducted several
months of discovery related to this motion.
On March 31, 2009, the District Court denied the motion
to dismiss without prejudice. On the political question issue, it
1
The District Court had jurisdiction under 28 U.S.C. §
1332(a).
4
concluded:
Upon consideration of the present record . . . the
Court finds that Plaintiffs’ claims do not present
non-justiciable political questions . . . . The
principles of separation of powers will not be
violated by the Court resolving the merits of
Plaintiffs’ claims. Accordingly, [KBRSI’s]
motion to dismiss Plaintiffs’ claims based on the
political question doctrine is denied, without
prejudice. If further factual development
illuminates the presence of political questions in
this action, [KBRSI] may renew its motion at that
time.
The Court also held that KBRSI was not entitled to immunity
under the combatant activities exception “at this time” but
emphasized that its decision was informed by the fact that only
“limited discovery” had been conducted to date.
KBRSI sought certification for an interlocutory appeal
under 28 U.S.C. § 1292(b). That too was denied. The District
Court concluded first that its March 31 order did not involve a
“controlling” question of law. See 28 U.S.C. § 1292(b). It also
held that there was no substantial basis for difference of opinion,
and that allowing an interlocutory appeal would not materially
advance the ultimate termination of the litigation. Id. The
District Judge again noted that the case was in the early stages
of discovery, and that KBRSI’s motion to dismiss was denied
5
without prejudice. She reiterated that she would entertain a
renewed motion, if one was warranted in light of the facts
obtained through further discovery. In the interim, however, she
thought Plaintiffs should have the opportunity to conduct merits
discovery—of which there had been virtually none, nearly a year
and a half after Sergeant Maseth’s death—without the delay that
an appeal would inevitably cause.
Instead of proceeding in the District Court, KBRSI
immediately filed a Notice of Appeal. It argues that the District
Court erred by rejecting its political question and § 2680(j)
defenses. On May 7, 2009, we ordered the parties to provide
briefing as to whether we have jurisdiction. KBRSI insists that
we do; Plaintiffs disagree.
II.
28 U.S.C. § 1291 gives us jurisdiction over the “final
decisions” of the district courts. “A ‘final decision’ generally is
one which ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.” Catlin v. United
States, 324 U.S. 229, 233 (1945). KBRSI concedes that the
order denying its motion to dismiss does not fit this description.
It argues, however, that the order is immediately reviewable
under the collateral order doctrine set forth in Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). This
doctrine “is best understood not as an exception to the ‘final
decision’ rule laid down by Congress in § 1291, but as a
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‘practical construction’ of it,” Digital Equip. Corp. v. Desktop
Direct, 511 U.S. 863, 867 (1994) (quoting Cohen, 337 U.S. at
546), which recognizes that “[w]hile a final judgment always is
a final decision, there are instances in which a final decision is
not a final judgment.” Abney v. United States, 431 U.S. 651,
658 (1977) (quoting Stack v. Boyle, 342 U.S. 1, 12 (1951)
(Jackson, J., concurring in part)).
To establish collateral order jurisdiction, KBRSI must
show that the District Court’s order (1) conclusively determined
(2) “an important issue completely separate from the merits of
the action” and (3) “would be effectively unreviewable on
appeal from a final judgment.” Will v. Hallock, 546 U.S. 345,
349 (2006). We conclude that the order appealed did not
“conclusively determine” whether KBRSI could successfully
invoke the political question doctrine or the combatant activities
exception. Therefore, the Cohen test is not satisfied, and we
need not address the other two prongs of the test. Jones v. Lilly,
37 F.3d 964, 966 (3d Cir. 1994) (noting that all three prongs of
the Cohen test must be satisfied before collateral order review
is appropriate).
The Supreme Court has used varying language to
implement the “conclusively determined” prong of Cohen, but
we perceive no change in the governing standard. The Court
has described Cohen as requiring a “fully consummated
decision” and “a complete, formal, and . . . final” resolution of
the disputed issue. Abney, 431 U.S. at 659. It has allowed
7
collateral order review where there was “no basis to suppose
that the District Judge contemplated any reconsideration of his
decision,” Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 12-13 (1983), and prohibited it where the
relevant order was left “subject to revision.” Coopers &
Lybrand v. Livesay, 437 U.S. 463, 469 (1981). More recently,
the Court has explained that the district court’s ruling must be
“the final word on the subject addressed.” Digital Equip. Corp.,
511 U.S. at 868. “Tentative” rulings can never satisfy the
“conclusively determined” requirement. See, e.g., id. at 869 n.2;
Coopers & Lybrand, 437 U.S. at 469 n.11; Cohen, 337 U.S. at
546.
Consistent with this authority, we have long held that
collateral order review requires “a final rather than a provisional
disposition of an issue.” Rodgers v. U.S. Steel Corp., 508 F.2d
152, 159 (3d Cir. 1975). An illustrative case is Metex Corp. v.
ACS Industries, Inc., 748 F.2d 150 (3d Cir. 1984). There,
plaintiff Metex sued a competitor for unfair trade practices. In
furtherance of that claim, it sought certain records from the
Department of Justice under the Freedom of Information Act
(“FOIA”). When the DOJ resisted, Metex joined it as a
defendant in its unfair trade practices claim, then moved for
summary judgment on the FOIA issue. The district court denied
the motion. Metex immediately appealed. We dismissed for
lack of appellate jurisdiction, because the “district court did not
treat its ruling on the summary judgment motion as final; rather,
it indicated that it was prepared to reconsider the motion at a
8
later time.” Id. at 153. We held that “[b]ecause the district
court explicitly left open renewed consideration of the FOIA
claim, the order was not ‘conclusively determined’ within the
meaning of Cohen.” Id. That decision echoed our holding in
Lusardi v. Xerox Corp., 747 F.2d 174 (3d Cir. 1984). In that
case, plaintiffs filed a purported class action against Xerox,
alleging unlawful age discrimination. After a hearing, the
district court conditionally certified the class. It ordered Xerox
to provide plaintiffs with a list of all potential claimants, and
plaintiffs to provide notice of the lawsuit to everyone on that
list. Id. at 175-76. The court proposed using the class notice,
and an accompanying questionnaire, as a “discovery device that
ultimately would enable it to determine whether a group of
‘similarly situated’ individuals” existed. Id. at 176. It intended
to decertify the class “if the evidence elicited by the
questionnaires and consent forms did not demonstrate an
adequate number of sufficiently similar claims.” Id. When
Xerox appealed the conditional certification order, we dismissed
for lack of jurisdiction. We held that the first prong of Cohen
was not satisfied because the order was explicitly made “subject
to revision by the district court” depending on the responses to
the questionnaire. Id. at 177. We noted that such “conditional
certification [could] in no way be termed a final disposition of
the class action issue.” Id. at 177-78. Other cases in this Circuit
have unfolded similarly. See, e.g., New York v. U.S. Metals Ref.
Co., 771 F.2d 796, 799 (3d Cir. 1985) (rejecting jurisdiction
under Cohen because the district court “intend[ed] to reconsider
its order” as soon as certain fact-finding was completed);
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Silberline Mfg. Co. v. Int’l Nickel Co., 569 F.2d 1217, 1220 (3d
Cir. 1977) (per curiam) (finding collateral order doctrine
inapplicable where district court had not yet “settled [the
disputed issues] conclusively”). Cf. Fed. Ins. Co. v. Rubin &
Co., 12 F.3d 1270, 1280 (3d Cir. 1993) (finding Cohen test
satisfied where the district court rejected a claim of sovereign
immunity, and “gave no indication that it would reopen [that]
issue at a later pre-trial stage of the proceedings”).
These cases convince us that the District Court’s March
31 order did not conclusively determine the disputed issues in
this case. Judge Fischer made clear that her rejection of
KBRSI’s political question and § 2680(j) defenses was not
necessarily her “final disposition” of these issues. Cohen, 337
U.S. at 546. In fact, she did so twice—first in denying KBRSI’s
motion to dismiss, and again in denying certification for
interlocutory appeal under §1292(b). Her ruling was nothing
resembling a “complete, formal, and . . . final rejection” of
KBRSI’s position. Abney, 431 U.S. at 659. Rather, it was a
“tentative” ruling based solely on the limited discovery that had
been conducted to date. Digital Equip. Corp., 511 U.S. at 869
n.2. As in Metex, the “district court did not treat its ruling as
final; rather, it indicated that it was prepared to reconsider the
motion at a later time.” 748 F.2d at 153. Under these
circumstances, accepting KBRSI’s appeal now would not be
“review”; it would be improper “intervention,” if not outright
“intrusion.” Cohen, 337 U.S. at 546.
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KBRSI’s argument for jurisdiction relies chiefly on
Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007), and U.S.
Steel Corp. v. United Mine Workers, 456 F.2d 483 (3d Cir.
1972). KBRSI cites these cases for the general proposition that
collateral order jurisdiction may exist “notwithstanding that the
order appealed was issued ‘without prejudice.’” That principle
is true as far as it goes, but it does not go nearly far enough to
help KBRSI. Both Frederico and U.S. Steel are distinguishable.
In Frederico, the plaintiff filed a class action lawsuit
against Home Depot in state court. The complaint sounded in
fraud and breach of contract. Home Depot removed to federal
court, and the district court dismissed the complaint without
prejudice pursuant to Rules 9(b) and 12(b)(6). Frederico, 507
F.3d at 190-91. The plaintiff chose not to amend her complaint
to remedy the deficiencies noted by the district court. Instead,
she appealed. We raised the issue of jurisdiction sua sponte, and
noted our prior holding that “a dismissal with leave to amend
will be treated as a final order if the plaintiff has elected to stand
upon the original complaint,” rather than amend it. Id. at 192
(internal quotations omitted). Because the plaintiff maintained
that her complaint was legally sufficient, and clearly signaled
her intent to stand upon it, we treated the dismissal without
prejudice as a final decision. Id. Accordingly, we held that we
had jurisdiction under § 1291, notwithstanding the district
court’s dismissal “without prejudice.” We noted that allowing
appellate review under these circumstances was “consistent with
the goal of the final judgment rule—to prevent piecemeal
11
litigation—because if plaintiff cannot or will not bring a second
action, there is no risk of multiple litigation.” Id. (internal
quotations omitted).
U.S. Steel involved an attempt by certain steel and mining
interests to enjoin a work stoppage organized by labor unions.
456 F.2d at 485. A preliminary injunction issued, but was
vacated on appeal. When the matter returned to the district
court, the parties entered into a stipulation which “end[ed] the
lawsuit for all practical purposes.” Id. at 486. The unions then
filed a motion to recover litigation costs incurred in the
injunction proceedings. The district court denied that motion
without prejudice, and the unions promptly appealed. We held
that we had jurisdiction under Cohen, because “the order
appealed from, although in form interlocutory, was in practical
effect final on the issue” of costs, as it was clear that “no further
proceedings would take place in the district court.” Id. at 487
(emphasis added).
The differences between these cases and the case before
us are apparent. In Frederico and U.S. Steel, we had jurisdiction
because it was clear that the district court had rendered its final
disposition of the disputed issues, notwithstanding the “without
prejudice” designation. In other words, in both cases the order
appealed was “the final word on the subject addressed,” Digital
Equip. Corp., 511 U.S. at 868, and thus there was no danger of
duplicative appeals. Here, there are no such indicia of finality.
The District Court explicitly invited the parties to revisit the
12
disputed issues as the factual record developed.
Nor would asserting jurisdiction now comport with the
goal of the finality rule—avoiding piecemeal litigation.
Frederico, 507 F.3d at 192. It takes little imagination to foresee
how reviewing the District Court’s ruling now could undermine
that goal. Suppose we undertook review here and concluded
that, on the record before us, no political question existed. We
would then remand the case, and presumably, discovery would
continue. But because the presence or absence of a political
question is such a fact-intensive inquiry, see Baker, 369 U.S. at
217, a better-developed record could give rise to another
colorable motion to dismiss.2 Suppose that this time, the District
Court granted KBRSI’s motion, and Plaintiffs appealed.3 We
2
Indeed, KBRSI has already informed the District Court
that it intends to file a renewed motion to dismiss and/or a
summary judgment motion once merits discovery is completed.
3
This is not a far-flung hypothetical. It is exactly what
happened in Carmichael v. Kellogg Brown & Root Servs., Inc.,
572 F.3d 1271 (11th Cir. 2009). There, plaintiffs brought a tort
claim against KBRSI based on an accident involving a military
convoy in Iraq. KBRSI moved to dismiss on political question
grounds. The district court denied that motion and allowed
discovery to run its course. KBRSI again moved to dismiss on
political question grounds. This time, with the benefit of a
complete record, the district court agreed that political questions
13
would again be required to decide the applicability of the
political question doctrine to this case. There could be no
clearer example of the very redundancy, delay, and waste of
judicial resources that the final decision rule is intended to
prevent. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
368, 374 (1981).
III.
Because the District Court’s March 31 order did not
conclusively determine the disputed issues in this case, we
cannot review it under the collateral order doctrine. We will
dismiss the appeal for lack of jurisdiction.
were present and dismissed the case. Id. at 1279. Plaintiffs
appealed, and after a lengthy, fact-intensive analysis, the
Eleventh Circuit affirmed. If KBRSI had been permitted to
appeal after the district court denied its initial motion, the
Eleventh Circuit might well have been forced to examine the
same case twice in search of political questions.
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