Jeremy ScahillTwitterJeremy Scahill is the author of the best-selling Blackwater: The Rise of the Worlds Most Powerful Mercenary Army, published by Nation Books. On February 1, 2005, defendant Justin L. McQuown ("McQuown") filed a motion to dismiss, pursuant to Rule 12 (b) (6), also asserting a defense of preemption under the DBA or the related Longshore and Harbor Workers' Compensation Act (LHWCA). They will be accountable., Still, Blackwater has friends in high places. Under what has become known as the well-pleaded complaint rule, 1331 federal question jurisdiction is limited to actions in which the plaintiff's well-pleaded complaint raises an issue of federal law; actions in which defendants merely claim a substantive federal defense to a state-law claim do not raise a federal question. at 811-13. 1447(c). Blackwater assigned the decedents to support its venture with Regency Hotel and Hospital Company ("Regency") to provide security to ESS Support Services Worldwide, Eurest Support Services (Cyprus) International, Ltd. ("ESS"). tn_keyword: ['academi', 'security-c'], See Venkatraman v. REI Sys., Inc., 417 F.3d 418, 421-22 (4th Cir.2005) (holding that a miscarriage of justice had not occurred, so as to require appellate review, when the district court failed to consider a cause of action not presented to it). In fact, Blackwaters then-general counsel, Steve Capace, gave a workshop last May on the subject to an International Super-Conference for contractors. Instead, it had remanded the case because 1445(a) prohibited removal in that instance. We expressed in Shives some doubt about our ability to exercise appellate jurisdiction, but concluded that we could, in the alternative, issue a writ of mandamus "[t]o avoid forfeiting the federal courts' role of reviewing LHWCA coverage issues." We therefore decline to expand Shives so far afield of the original congressional intent embodied in 1447(d). Lontz, 413 F.3d at 442-43. Sign in with Facebook. Blackwater attempts to characterize our opinions in Mangold, Jamison, and Shives as authority for the proposition that a writ of mandamus may issue despite the applicability of 1447(d) simply because the remand will have the practical effect of allowing a state court to decide a federal issue. See Borneman, 213 F.3d at 825 (holding 1447(d) inapplicable to two "antecedent components of the district court's remand order"). When they took that word armored out, Blackwater was able to save $1.5 million in not buying armored vehicles, which they could then put in their pocket, says attorney Miles. 1447(d). We now turn our attention to the district court's actions in this case to determine whether 1447(d) removes our ability to hear it. No such conceptual antecedent exists here. Because the LHWCA did not apply, the court concluded, the claim had been properly filed under the FELA. 28 U.S.C. Uncategorized . These men were told that theyd be operating in armored vehicles. Its lead counsel is Greenberg Traurig, the influential DC law firm that once employed lobbyist Jack Abramoff. Blackwater was paying its men $600 a day but billing Regency $815, according to the Raleigh News and Observer. See, e.g., Martin v. Am. Justin has been found in 2 states including Virginia, Pennsylvania. However, if the LHWCA governed the claim instead, the employee could not proceed under the FELA and 1445(a) would not apply. 1439, 52 L.Ed.2d 1 (1977) (per curiam)). For the reasons that follow, we hold that we lack jurisdiction to hear the appeal and decline to issue a writ of mandamus.3. Since its filing in January 2005, the case has moved slowly through the legal system. If such a certification is issued in a case brought in state court, the case "shall be removed without bond . 2006). After the killings, Katy Helvenston joined the families of Mike Teague, Jerko Zovko and Wesley Batalona in grieving and in seeking details about the incident. It has fought to have the case dismissed on grounds that because Blackwater is servicing US armed forces it cannot be sued for workers deaths or injuries and that all liability lies with the government. Blackwater is able to operate over there in Iraq free from any oversight that would typically exist in a civilized society. Blackwater overstates both the extent of our decision today and the state of the record. View contact information: phones, addresses, emails and networks. Looking for Justin Mcquown? Helvenston believed McQuown resented him and deliberately reassigned Helvenston at the last minute. Both constitutional interpretations are too extravagantly recursive for us to accept. What we have right now is something worse than the wild, wild west going on in Iraq, Callahan says. Blackwater signed a revised contract with Regency on March 12, 2004 that removed the word "armored". It was good money, but it was never enough, his mother remembers. 901-950 (West 2001 & Supp. Shives thus presented the court of appeals with an order in which the district court actually decided, on an uncontested factual record and as part of its inquiry into the permissibility of removal, whether the LHWCA covered the plaintiff's claims. Waco, 293 U.S. at 143, 55 S.Ct. While some of that may be legitimate defense tactics, the lawyers argue that the company has actively prevented court-ordered depositions from taking place, including taking steps to prevent a key witness from testifying: John Potter, the man who blew the whistle on Blackwaters removal of the word armored from the contract and was subsequently removed. Once in federal court, Blackwater moved to dismiss the case, arguing that the district court lacked subject matter jurisdiction because the DBA covered Nordan's claims and, therefore, that Nordan could litigate his claims only before the Department of Labor, which decides DBA claims in the first instance. Had they been, I sincerely believe that theyd be alive today. The lawyers for the families charge that Blackwater has continued its practice of stonewalling. . McQuown refused to allow it. . McQuown On March 27, two days before Helvenston's scheduled deployment to Iraq, McQuown reassigned him to a team leaving on the 28th, over the objections of numerous other Blackwater employees. Just like with tobacco litigation or gun litigation, once they lose that first case, theyd be fearful there would be other lawsuits to follow., The families two-year quest to hold those responsible accountable has taken them not to Falluja but to the sprawling Blackwater compound in North Carolina. United States ex rel. To submit a correction for our consideration, click here. Thats how I work.. By contrast, under the principles of "ordinary" preemption, some federal laws may simply provide either a substantive defense to a plaintiff's state-law claims or a right to adjudication of those claims in a federal administrative forum or according to a federal scheme. Lontz, 413 F.3d at 441. The tension-creating statute inBorneman was a portion of the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("the Westfall Act"). Scott Helvenston and his team were to deploy to Iraq on March 29. Justin McQuown has worked for a number of companies since 2004. Helvenston began training at Blackwater USA's facilities in March 2004, and developed a personal conflict with head trainer Justin "Shrek" McQuown. See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 346, 96 S.Ct. 1447(c) (2000),1 determined that it must remand the case. That conceptual antecedent took the form of the district court's substantive ruling that, because the plaintiff had not been engaged in maritime employment, the application of the LHWCA had not been triggered in that case. !, The White House, for its part, has turned the issue of accountability of Blackwater and other private security companies into a joke, literally. ' Those were some of the last words Helvenston would ever write. 2679(d)(2) (2000).10 That statute thus directly and specifically addressed the removability of the relevant class of claims and contained language that channeled the district court's authority to remand in such cases. 584, 46 L.Ed.2d 542 (1976) ("[O]nly remand orders issued under 1447(c) and invoking the grounds specified therein . As they tell it, after demanding answers about how the men ended up dead in Falluja that day and being stonewalled at every turn, they decided to conduct their own investigation. Similarly here, the district court's findings regarding complete preemption could foreclose state-court litigation of Blackwater's DBA and constitutional claims only if principles of preclusion prevented Blackwater from later raising a defense of ordinary federal preemption. After the training session, Helvenston got on a plane to Kuwait, where he touched down on March 18. We note again the caution in Nutter that, for the purpose of determining whether an order meets the criteria of Waco, "[a]t a minimum, the challenged portion of the order must affect the parties' substantive rights" by having a preclusive effect in subsequent proceedings. at 813-14. If the LHWCA was applicable, it would erase 1445(a)'s protection of state-filed FELA claims from removal. 2006) (holding that Waco requires that the reviewed decision be both conclusive on the parties and logically and factually precedent to the remand order); Hernandez v. Seminole County, 334 F.3d 1233, 1241 (11th Cir.2003) (construing Waco to require the challenged decision to be both conclusive on the parties and logically and factually precedent to the remand order); Christopher v. Stanley-Bostitch, Inc., 240 F.3d 95, 99 (1st Cir.2001) (holding Waco applicable to a decision that was not "inextricably intertwined with" or essential to the remand order); Carr v. Am. Helvenston believed McQuown resented him and deliberately reassigned Helvenston at the last minute. What theyre trying to do is to say, Lookwe can do anything we want and not be held accountable. Here, the district court appropriately did not decide whether the DBA applied to Nordan's claims because such an inquiry was both unnecessary to its jurisdictional analysis and unreachable on the merits once the court had determined that removal jurisdiction was absent.7. Plan, 407 F.3d 643, 650, 653 (4th Cir.2005). The Nutter defendant had claimed that removal jurisdiction was proper because two federal statutes completely preempted the plaintiff's state-law claims and, therefore, presented federal questions. Nordan, 382 F.Supp.2d at 813-14. The deposition was set for January 28, 2005, and Miles was to fly to Alaska, where the Potters were living. Copyright (c) 2023 The Nation Company LLC, By signing up, you confirm that you are over the age of 16 and, agree to receive occasional promotional offers for programs that support. Among other categories of cases, the federal district courts possess original jurisdiction over civil cases raising federal questions, which are "all civil actions arising under the Constitution, laws, or treaties of the United States." I have worked extensively in international security, anti . I had my bedroom phone ringer turned offI didnt get the call, so he left me a message. According to the suit,McQuown lacked the creden-tials of Helvenston and otherex-SEALs. Unbeknownst to Helvenston, this goal would drive a series of events that would ultimately lead to his death. See, e.g., Mangold, 77 F.3d at 1450 (holding that courts must "look past contextually ambiguous allusions and even specific citations to 1447(c) to determine by independent review of the record the actual grounds or basis upon which the district court considered it was empowered to remand"). The district court concluded that the employee had not been engaged in maritime work and, therefore, that the LHWCA did not apply. A district court exceeds its statutory authority when it remands a case "on grounds that seem justifiable to [the court] but which are not recognized by the controlling statute." Or is the Saudi nose in the Ame Shives, 151 F.3d at 168. Previously, Justin was a Research Engineer at L una Innovations and also held positions at AeroVironment, Stryten Energy, GE Healthcare, TopRank Marketing, Emerson, General Electric. In one of its few statements on the suit, Blackwater spokesperson Chris Bertelli said, Blackwater hopes that the honor and dignity of our fallen comrades are not diminished by the use of the legal process. Katy Helvenston calls that total BS in my opinion, and says that the families decided to sue only after being stonewalled, misled and lied to by the company. Judge DUNCAN wrote the opinion, in which Judge SHEDD and Judge JONES joined. Scott Helvenston was a walking ad for the military. Scotty had tried to call me in the middle of the night, Katy Helvenston remembers. 423 U.S. at 352-53, 96 S.Ct. Gen. Mark Kimmitt vowed, We will be back in Falluja. Thermtron, 423 U.S. at 343, 96 S.Ct. Second, Blackwater fails to acknowledge a key difference between the record before us today and the record before us in Shives. Jane and did a few stints on reality television. 1443 (2000), which concerns removal of state civil and criminal actions involving civil rights claims. 584. Historical Amnesia About Slavery Is a Tool of White Supremacy. You can read our Privacy Policy here. APPEAL DISMISSED; PETITION FOR WRIT OF MANDAMUS DENIED; MOTION TO STRIKE DENIED AS MOOT. justin mcquown blackwater. As the Supreme Court recently reiterated, Waco also requires that the reviewable decision be able to be "disaggregated" from the remand order itself because "the order of remand cannot be affected notwithstanding any reversal of a separate order." . tn_subject: ['criminal-j', 'society', 'us-wars-an', 'war-and-pe', 'war-on-ter'], . Because we conclude that Blackwater has not overcome the hurdle of 1447(d), we have no occasion to consider whether the doctrine of finality has been satisfied in this case. You need to put a face on these acts. at 443-44. See Mangold, 77 F.3d at 1453; Jamison, 14 F.3d at 233-34. Blackwater Security, et al Filing 4 Memorandum by Blackwater Security, Blackwater Lodge & T, Justin L. McQuown, Thomas Powell in support of [3-1] to dissolve ex parte state court orders permitting notice of deposition. In that case, the district court dismissed the claim upon which the court's removal jurisdiction had been based; it then remanded the case to the state court because, once the claim was no longer part of the case, no basis for federal jurisdiction existed. Blackwater founder Erik Prince personally delivered money to some of the families for funeral expenses, and the company moved to get the mens wives and children benefits under the governments Defense Base Act, which in some cases insures those on contract supporting US military operations abroad. Thats the only thing they understand, she says. McQuown. We also need not decide whether, possessing a proper understanding of the district court's role in the judicial review of DBA claims, the district court would have been correct to dismiss the case rather than remand it. It based this determination upon the erroneous belief that district courts play no role in the federal judicial review of DBA claims.9 Id. Nordan, 382 F.Supp.2d at 814. We from "The Nation" article | posted April 19, 2006 (May 8, 2006 issue) Blood Is Thicker Than Blackwater Jeremy Scahill . Home; About; MISSIONS; Ministries; Messages; EVENTS; Blog; CONTACT US "[A]ctions in which defendants merely claim a substantive federal defense to a state-law claim do not raise a federal question." When Helvenston set off for the Middle East, his family thought he was going to be working on Blackwaters high-profile job of guarding the head of the US occupation, Paul Bremer. See Louisville & Nashville R.R. 6). Without the big gun, without the third man, without the armored vehicle, they were sitting ducks, says Callahan. Blackwater has. Keith L. Flicker, Flicker, Garelick & Associates, L.L.P., New York, New York, for American International Group, Incorporated, Amicus Supporting Appellants. We recognized in Lontz that, to the extent that the NLRA applied to the plaintiff's claims, the statute entitled the defendant to adjudication of those claims solely before the NLRB. It will be precise, and it will be overwhelming. Within days of the ambush, US forces laid siege to Falluja, beginning what would be one of the most brutal and sustained US operations of the occupation. Finally, once a district court determines that it lacks subject matter jurisdiction over a removed case, 1447(c) directs that the case "shall be remanded." Nutter, 4 F.3d at 321. at 813. By signing up, you confirm that you are over the age of 16 andagree to receive occasional promotional offers for programs that support The Nations journalism. In Re: Blackwater Security v., 4th Cir. The suit also alleges that McQuown intentionally refused to allow the Blackwater security contractors to conduct ride-alongs with the teams they were replacing from Control Risk Group. . Kircher v. Putnam Funds Trust, ___ U.S. ___, ___ n. 13, 126 S.Ct. The correctness of the district court's jurisdictional analysis is irrelevant under 1447(d). Id. targeting:{ 36: Filed: 8/11/2005, Entered: 8/11/2005 Judgment for Estate of Batalona, Estate of Zovko, Estate of Teague, Estate of Helvenston, Richard P. Nordan against Justin L. McQuown, Blackwater Lodge & T, Blackwater Security IT IS ORDERED, ADJUDGED and DECREED that the court GRANTS plaintiff's motion to remand, pursuant to 28 U.S.C. local food spots in aruba; what divisions were in patton's third army at 814. 6. The party seeking removal bears the burden of demonstrating that removal jurisdiction is proper. to the state court. To conclude that the remand order was issued pursuant to 1447(c), we need not delve into whether the district court was correct to hold that it lacked subject matter jurisdiction over the removed action. The doctrine of complete preemption provides a corollary to the well-pleaded complaint rule. Since the Falluja incident, and also because of it, Blackwater has emerged as one of the most successful and profitable security contractors operating in Iraq. See City of Waco v. U.S. Fid. As we have noted, a key component of Waco's collateral order exception is that the challenged order "in logic and in fact . tn_loc:'atf' [Blackwater] then flew him to Jordan for ultimate deployment in the Middle East, Miles says. He was working as a security contractor for Blackwater Security when he was killed in the 31 March 2004 Fallujah ambush within days of arriving in Iraq. tn_pos: 'rectangle_1', As we have noted, the federal district courts, followed by the federal courts of appeals and the United States Supreme Court, review DBA claims after they have been initially adjudicated in the Department of LaborSee 42 U.S.C. 244 (1934) (holding 1447(d) inapplicable to the portion of a remand order that dismissed a cross-claim because the dismissal "in logic and in fact . Justin McQuown works as a Vice President, Business Development at Guardian Centers, which is an Education company with an estimated 458 employees; and founded in 2011. On March 30, 2004, Helvenston, Teague, Zovko and Batalona left Baghdad on the ESS security mission. In concluding that Blackwater had not met this burden, the district court rejected both of Blackwater's asserted bases for removal jurisdiction. camille rowe supplements. In other words, appellate jurisdiction existed in Shives because the district court's order did not rest upon lack of subject matter jurisdiction, the ground set forth in 1447(c).6 By contrast, as we have explained, the district court remanded this case under 1447(c) for lack of subject matter jurisdiction. We similarly do not have jurisdiction under Waco's severable order exception to review the district court's conclusions that neither complete preemption nor a unique federal interest created a federal question for the purposes of removal. Jun 21, 2022 Eventually, their corpses are chopped and burned. eclipse sample sale mother denim what is truth? Its natural to assume that the visibility of the dangers could drive up salaries for the folks who have to stand in the path of the bullets, he said. Fund, 500 U.S. 72, 89, 111 S.Ct. Well, that left Scott no choice. 28 U.S.C. See Int'l Primate Prot. First, the Supreme Court has interpreted 1447(d) to prohibit review only when the order of remand was based upon 1447(c), which requires remand when the district court determines that it lacks subject matter jurisdiction. 458, sec. Over a thousand people died because of what happened to Scotty that day, says Katy Helvenston. United States Court of Appeals, Fourth Circuit. ." See, e.g., Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1700, 114 L.Ed.2d 134 (1991) (noting that 1447(c) grants "no discretion to dismiss rather than remand [a removed] action" in which subject matter jurisdiction is lacking (internal quotation marks and citation omitted)), superseded on other grounds by 28 U.S.C. freestar.config.enabled_slots.push({ This April at a forum at Johns Hopkins, Bush was asked by a student about bringing private military contractors under a system of law, to which Bush replied, laughing, that he was going to ask Defense Secretary Rumsfeld, I was going toI pick up the phone and say, Mr. Secretary, Ive got an interesting question [laughter]. We further note that remanding despite a potential federal defense does not hamstring the litigation of that defense in state court. Indeed, the real scandal here isnt that these men were sent into Falluja with only a four-person detail when there should have been six or that they didnt have a powerful enough machine gun to kill their attackers. 2679(d)(1)-(2). We first discuss the contours of the Waco severable order exception and then consider whether Waco permits review of two constituent aspects of the district court's remand order. The suit alleges that there were six guards available that day, but McQuown intervened and ordered only the four to be sent. Co., 517 U.S. 706, 714-15, 116 S.Ct. We directed the district court to remand, rather than dismiss, claims that, if the NLRA applied to them, would not be justiciable in state court. Beast, he was the only contestant to defeat the beast, outmaneuvering a chimpanzee in an obstacle course. If it had been up to Katy Helvenston, her son wouldnt have been in Iraq at all. Alternatively, we concluded that the district court's decision concerning the LHWCA's applicability to the employee's claim was a "conceptual antecedent" to the order of remand. (2006) - Free download as PDF File (.pdf) or read online for free. farmers' almanac ontario summer 2021. In re BLACKWATER SECURITY CONSULTING, LLC, a Delaware Limited Liability Company; Blackwater Lodge and Training Center, Incorporated, a Delaware Corporation, Petitioners.In re Justin L. McQuown, Petitioner.Richard P. Nordan, as Ancillary Administrator for the separate Estates of Stephen S. Helvenston, Mike R. Teague, Jerko Gerald Zovko and Wesley J.K. Batalona, Plaintiff-Appellee, andEstate of Stephen S. Helvenston; Estate of Mike R. Teague; Estate of Jerko Gerald Zovko; Estate of Wesley J.K. Batalona, Plaintiffs,v.Blackwater Security Consulting, LLC, a Delaware Limited Liability Company; Blackwater Lodge and Training Center, Incorporated, a Delaware Corporation, Defendants-Appellants, andJustin L. McQuown, an individual; Thomas Powell, Defendants.Professional Services Council; International Peace Operations Association; American International Group, Incorporated, Amici Supporting Appellants.Richard P. Nordan, as Ancillary Administrator for the separate Estates of Stephen S. Helvenston, Mike R. Teague, Jerko Gerald Zovko and Wesley J.K. Batalona, Plaintiff-Appellee, andEstate of Stephen S. Helvenston; Estate of Mike R. Teague; Estate of Jerko Gerald Zovko; Estate of Wesley J.K. Batalona, Plaintiffs,v.Justin L. McQuown, an individual, Defendant-Appellant, andBlackwater Security Consulting, LLC, a Delaware Limited Liability Company; Blackwater Lodge and Training Center, Incorporated, a Delaware Corporation; Thomas Powell, Defendants.Professional Services Council; International Peace Operations Association; American International Group, Incorporated, Amici Supporting Appellants. Rather, it failed to argue before the district court that the provision supported removal. Blackwater misapprehends the import of our jurisprudence in two fundamental respects. tn_articleid: [72445], And Scott says, Youre nuts, you know, he says, Im not goin in there to Falluja. 1441(a). The legal principles that govern appellate jurisdiction in this case derive from Congress's limitation on our authority to review remand orders. . The district court thus remanded the case to state court without reaching the merits of Blackwater's motion to dismiss. Specifically, it contends that: Even if the DBA is not applicable, the constitutional separation of powers would preclude judicial intrusion into the manner in which the contractor component of the American military deployment in Iraq is trained, armed, and deployed. . 584, we concluded that 1447(d) did not prohibit appellate jurisdiction, see Shives, 151 F.3d at 167. We must instead look to the substantive reasoning behind the order to determine whether it was issued based upon the district court's perception that it lacked subject matter jurisdiction. It asserted that 28 U.S.C. See id. We then address whether the principles inherent in that body of law allow us to exercise appellate jurisdiction in this case. 731, 732, 25 U.S.C. See, e.g., Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d 1046, 1052 (8th Cir. Instead, each vehicle had only two men and far less powerful Mach 4 guns, which they had not even had a chance to test out. Id. Because we interpreted the statute creating that tension to prohibit absolutely the district court's remand of the case, we concluded that this tension alternatively permitted review via mandamus. Extent of our decision today and the record before us today and the state of the last words would! 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