Richard Nordan, the administrator of the estates of the four Blackwater independent contractors who were mutalated in Falluja in 2004, had sued the company at the behest of the families for "wrongful death and fraud under North Carolina tort law".
Blackwater in turn:
removed the case to federal district court, asserting that the Defense Base Act, which Congress passed in 2000, completely pre-empted the state law claims and presented unique federal interests sufficient to create a federal question. Once in federal court, Blackwater sought dismissal based on the district court's purported lack of subject-matter jurisdiction.
This was shot down by the district court and shot down again by the 4th US Court of Appeals.
UPDATE And SCOTUS shot it down the following day after I wrote this diary, so back to the State Court.
The case is Blackwater Security Consulting v. Nordan and the question at hand is whether the state court can hear the case. Blackwater argues that it can not, and further, argued that the "remand" order of the appeals court:
undermined the constitutional sequestration of foreign affairs and war powers within the political branches of government, because a state court would be forced to decide issues affecting military operations in the Iraq War; but the court again rejected Blackwater's views, stating its belief that the Constitution does not override Congress' ability to circumscribe appellate jurisdiction in this matter.(the DBA requires claimants to litigate their claims before the Department of Labor, though its decision would be subject to review by a federal district court).
The district court rejected Blackwater's arguments, concluding that the DBA does not completely pre-empt state law claims because it does not present original jurisdiction over the matter in federal district court, but rather in a government agency. The court also concluded that there was no unique federal interest involved that was sufficient to establish jurisdiction, because it was unclear whether the DBA applied to the decedents. Thus, the federal court remanded the suit back to state court.
Blackwater has been dodging this law suit in all kinds of ways, mostly based on jurisdiction, and (not surprisingly), Ken Starr is representing their appeal to SCOTUS:
Represented by Kenneth Starr of Kirkland & Ellis, Blackwater has now asked the Supreme Court to consider the issue, arguing that the remand order circumvented federal statutory and constitutional designs to preclude state-court jurisdiction.
This, and I am not a lawyer so please step in if you are, is one of the big unaswered legal question regarding "contractors on the battlefield" and the lawsuits arising from them and that is: wrongful death suits.
This is kind of an open-ended diary, but I will say that the man who brought you the inquisition of Bill Clinton is representing Blackwater in their attempt to have the SCOTUS dis this case. It is very possible this case will not be heard by the Supreme Court, but if it is, it will be something to keep an eye on.
If Blackwater were to be heard and win, then their argument:
that a removal action should be dismissed rather than remanded in a situation where both the state and federal courts lack subject-matter jurisdiction to hear the case
would make the case against them null and void.
The man who argued jurisdiction over Bill Clinton's blowjob, is arguing no one has jurisdiction over Blackwater's decisions for its contractors in Iraq.