          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                                        FILED
                                                                                     January 12, 2012

                                   No. 10-20202 c/w 10-20371                          Lyle W. Cayce
                                                                                           Clerk

INGRID FISHER, Individually and as Successor in Interest to Decedent
Steven Fisher; KRISTEN FISHER, Individually and as Successor in Interest
to Decedent Steven Fisher; S. F., JR., a Minor, Individually and as Successor
in Interest to Decedent Steven Fisher by and through Next Friend Ingrid
Fisher; K. F., a Minor Individually and as Successor in Interest to Decedent,
Steven Fisher, by and through Next Friend Ingrid Fisher; MARJORIE
BELL-SMITH, Individually and as Successor in Interest to Decedent Timothy
Bell; ET AL,

                                                          Plaintiffs–Appellees,

v.

HALLIBURTON, a Corporation; KELLOGG BROWN & ROOT
INCORPORATED, a Corporation and Wholly Owned Subsidiary of
Halliburton and KBR Holdings Limited Liability Company; SERVICE
EMPLOYEES INTERNATIONAL INCORPORATED, a Foreign Corporation
and Wholly Owned Subsidiary of Halliburton and Kellogg Brown & Root
International Incorporated; BROWN & ROOT SERVICES, a Division of
Kellogg Brown & Root Incorporated, a Corporation; KELLOGG BROWN &
ROOT SERVICES INCORPORATED,

                                                          Defendants–Appellants.

------------------------------------------------------------------------------------------------------------

REGINALD CECIL LANE, an individual, by and through Linda Marlene
Lane, as the duly appointed Conservator/Guardian of Reginald Cecil Lane;
ET AL,

                                                          Plaintiffs,

v.
                                   No. 10-20202 c/w 10-20371


HALLIBURTON, a Corporation; ET AL,

                                                          Defendants.

Consolidated with No. 10-20371

INGRID FISHER, Individually and as Successor in Interest to Decedent
Steven Fisher; KRISTEN FISHER, Individually and as Successor in Interest
to Decedent Steven Fisher; S. F., JR., Individually and as Successor in
Interest to Decedent Steven Fisher; K. F., Individually and as Successor in
Interest to Decedent Steven Fisher; MARJORIE BELL-SMITH, Individually
and as Successor in Interest to Decedent Steven Fisher; ET AL, Individually
and as Successor in Interest to Decedent Steven Fisher,

                                                          Plaintiffs–Appellees
                                                          Cross-Appellants,

v.

HALLIBURTON, a Corporation; KELLOGG BROWN & ROOT INC, a
Corporation; SERVICE EMPLOYEES INTERNATIONAL INC, a
Corporation; KELLOGG BROWN & ROOT SERVICES INC, a Corporation;
BROWN & ROOT SERVICES CORP, a Corporation,

                                                          Defendants–Appellants
                                                          Cross-Appellees.

------------------------------------------------------------------------------------------------------------

REGINALD CECIL LANE, an Individual, by and through Linda Marlene
Lane, as the duly appointed Conservator/Guardian of Reginald Cecil Lane;
ET AL,

                                                          Plaintiffs,

v.

HALLIBURTON, a Corporation; ET AL,

                                                          Defendants.


                                                     2
                                  No. 10-20202 c/w 10-20371


                    Appeals from the United States District Court
                         for the Southern District of Texas


Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      This interlocutory appeal arises out of the deaths of Steven Fisher and
Timothy Bell, who were civilian drivers in a United States military supply-truck
convoy in Iraq when insurgents attacked in April 2004. State tort claims were
brought by or on behalf of spouses and family members of the decedents
(collectively Plaintiffs) against Halliburton, Kellogg Brown & Root, Inc., and
various subsidiaries or affiliates (collectively KBR), who employed the decedents.
In this appeal, KBR contends that the district court erred in denying KBR’s
motion to dismiss and motion for summary judgment in which it argued that the
Defense Base Act (the DBA or Act)1 provides Plaintiffs’ exclusive remedy and
preempts all state tort claims that have been asserted. The district court
certified its order regarding the DBA for immediate appeal under 28 U.S.C.
§ 1292(b). KBR also seeks review of interlocutory orders denying motions to
dismiss that had asserted that this case concerns a political question and is
nonjusticiable and had asserted the government contractor defense and
combatant activities exception. We conclude that the DBA preempts Plaintiffs’
claims, and we therefore do not consider whether we have jurisdiction to
entertain the alternative grounds on which KBR seeks dismissal.




                                              I




      1
          42 U.S.C. §§ 1651-54.

                                             3
                                 No. 10-20202 c/w 10-20371

        In the district court, this case was considered with another case, Lane v.
Halliburton, which arose out of injuries sustained by another KBR employee,
Reginald Cecil Lane, who was attacked the same day in Iraq while driving a
truck in a supply convoy. Lane was joined in his suit against KBR by his
guardian and conservator and the representative of the estate of a family
member. The district court’s order ruling that the DBA did not apply was
entered in both cases, and this interlocutory appeal originally included the
Fisher as well as the Lane plaintiffs. The plaintiffs in Lane reached a settlement
agreement with KBR while this appeal was pending, and the appeal has been
dismissed as to all the Lane plaintiffs. The Fisher claims remain pending.
        We have previously considered an appeal in this case, Lane v.
Halliburton.2 We again recount the pertinent facts.
        In December 2001, the United States Army awarded KBR a contract
pursuant to its Logistics Civil Augmentation Program (LOGCAP). As we
explained in the prior appeal before this court: “Under LOGCAP, the Army is
authorized to employ ‘civilian contractors to perform selected services in wartime
to augment Army forces.’ U.S. Army Reg. 700-137, at 1-1 (Dec. 16, 1985).”3
Contracts under LOGCAP “allow the Army to ‘achieve the maximum combat
potential . . . by capitalizing on the civilian sector . . . .’ Id. at 2-1(a).”4 Under its
contract with the Army, known as the LOGCAP III contract, and task orders
issued subsequent to the contract, KBR was responsible for providing logistical
support and transportation services to the Army as it conducted operations in
Iraq.



        2
            529 F.3d 548 (5th Cir. 2008).
        3
            Id. at 554.
        4
       Id.; see also Martin v. Halliburton, 618 F.3d 476, 479-80 (5th Cir. 2010) (discussing
the LOGCAP program).

                                             4
                          No. 10-20202 c/w 10-20371

      Pursuant to its responsibilities under the contract, KBR and its employees
conducted supply convoy missions in Iraq under the supervision of the Army.
Both the LOGCAP III contract and the task orders that defined KBR’s
responsibilities in Iraq provided that the Army would maintain responsibility for
the safety of KBR convoys by providing adequate force protection for the convoys
and ensuring the security of the routes on which the convoys would travel. In
fulfilling its duties under the contract, the Army determined where commodities
were needed, when and from where a convoy would deploy, the route the convoy
would travel, the necessary force protection, and whether a specific route was too
dangerous to travel. Despite the Army’s significant role in the planning and
operation of KBR convoys, KBR retained the authority to halt convoy operations
unilaterally due to safety concerns.
      The events giving rise to this litigation occurred primarily on April 9,
2004, in Iraq. The record includes evidence that KBR was on notice that April
9 was a day that would present an increased risk of insurgent violence and that
KBR employees were concerned about the levels of violence that their convoys
were facing. For example, KBR security calendars noted April 9, 2004, marked
the first anniversary of the United States’ presence in Baghdad, and the
weekend of April 9 through April 11 coincided with a Shia commemorative
event. On April 7, a KBR security manager e-mailed KBR’s theater project
manager and expressed his concern that convoys could face serious security risks
on April 9 and 10.     On April 8, several KBR convoys were attacked by
insurgents, and internal KBR e-mails suggest KBR employees were aware the
security situation with respect to their convoys had deteriorated. Some of the
e-mails expressed doubt the military could adequately protect KBR convoys
under current conditions, and KBR management, on the evening of April 8,
debated the merits of sending out convoys on April 9. KBR ultimately resolved
to continue convoy operations.


                                        5
                             No. 10-20202 c/w 10-20371

      The suit below focused on the drivers of fuel tankers in two separate
supply convoys on April 9—the Hamill convoy and the Longstreet convoy. Both
convoys were traveling between Camp Anaconda and Baghdad International
Airport (BIAP) when they were attacked by Iraqi insurgents. Plaintiffs’ convoys
were not the only KBR convoys to suffer insurgent attacks that day. There is
evidence in the record, for example, that, before the Hamill convoy had even
departed Camp Anaconda on its mission to supply BIAP, other KBR convoys in
the vicinity of the intersection of two supply routes—MSR Sword and MSR
Tampa—were receiving small arms fire from insurgents. Internal KBR e-mails
suggest that KBR executives who had authority to halt convoy operations were
aware of these attacks before the Hamill convoy left Camp Anaconda.
      The Hamill convoy ultimately proceeded from Camp Anaconda toward
BIAP via MSR Sword. As the Hamill convoy was traveling down MSR Sword
toward its intersection with MSR Tampa, insurgents attacked the convoy with
improvised-explosive devices, rocket-propelled grenades, and machine-gun fire.
The Longstreet convoy was en route from BIAP to Camp Anaconda on MSR
Tampa when it, too, fell under attack by insurgents wielding rocket-propelled
grenades, small arms, and rocks. The attacks killed seven KBR drivers and
injured at least ten others. As a result of the attacks, KBR suspended its convoy
operations for April 10.
      Plaintiffs subsequently filed suit against KBR raising a number of claims,
including negligence and fraud.          Plaintiffs based their negligence claims
primarily on their allegations that KBR, in its zeal to fulfill its role providing
logistical support services to the United States military in Iraq, allowed
Plaintiffs’ convoys to proceed on these missions despite knowing insurgent
attacks on the convoys were likely to occur.5 The fraud claims, on the other


      5
        See Lane v. Halliburton, 529 F.3d 548, 567 (5th Cir. 2008) (describing Plaintiffs’
negligence claims).

                                            6
                                  No. 10-20202 c/w 10-20371

hand, were based primarily on Plaintiffs’ allegations that KBR, during recruiting
and orientation activities, intentionally misled the drivers into believing they
would only be engaging in rebuilding activities, not combat.6
       The district court dismissed Plaintiffs’ suit after determining it was
nonjusticiable pursuant to the political question doctrine.7 Plaintiffs appealed,
and our court reversed after concluding that “the case need[ed] further factual
development before it can be known whether that doctrine is actually an
impediment.”8 After these cases were remanded to the district court, the parties
proceeded with discovery and refined their pleadings. The Fisher Plaintiffs’
most recent complaint alleged several state-law causes of action against KBR:9
(1) Fraud and Deceit, Fraud in the Inducement, Continuing Fraud, Intentional
Concealment           of   Material       Facts,       and   Negligent    and    Intentional
Misrepresentations; (2) Negligence; (3) Civil Conspiracy; (4) Intentional
Infliction of Emotional Distress; and (5) Intent to Injure/Assault.
       KBR subsequently moved to dismiss Plaintiffs’ claims pursuant to FED. R.
CIV. P. 12(b)(1), arguing that the district court lacked subject-matter jurisdiction
over the claims because the DBA provided Plaintiffs’ exclusive remedy for their
injuries.      The district court treated the motion as a motion for summary
judgment and denied it after determining genuine issues of material fact existed
as to whether the DBA covered Plaintiffs’ injuries. The district court certified
its order for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and
we granted KBR leave to appeal from the district court’s order. The Plaintiffs


       6
           Id. at 554-55 (describing Plaintiffs’ fraud allegations).
       7
           Fisher v. Halliburton, Inc., 454 F. Supp. 2d 637, 638 (S.D. Tex. 2006).
       8
           Lane, 529 F.3d at 554.
       9
         The complaint also included causes of action under the Racketeer Influenced and
Corrupt Organizations Act. The district court dismissed those claims in an order not at issue
in these appeals.

                                                   7
                               No. 10-20202 c/w 10-20371

filed a conditional cross-petition in this court, urging that we hold that the DBA
does not preempt the fraud in the inducement claim.
                                              II
       In the proceedings below, KBR invoked the DBA’s exclusivity provision in
a Rule 12(b)(1) motion, claiming the provision deprived the district court of
subject-matter jurisdiction over Plaintiffs’ state-law causes of action.                  The
district court treated KBR’s motion as a motion for summary judgment and
denied the motion after determining genuine issues of material fact exist as to
whether the DBA covers Plaintiffs’ injuries. On appeal, KBR asserts the district
court erred when it treated KBR’s motion as a motion for summary judgment.
KBR stresses the importance of distinguishing between these two types of
motions in this case because the district court premised its denial of KBR’s
motion on the existence of fact questions with respect to whether Plaintiffs’
injuries fall within the coverage of the DBA. Had the district court properly
treated its motion as a Rule 12(b)(1) motion, KBR argues, the court would have
resolved those fact issues and could not have denied the motion simply because
fact questions exist.10
       We disagree with KBR’s assertion that the district court erred by treating
KBR’s motion as a Rule 56 motion for summary judgment rather than a Rule
12(b)(1) motion to dismiss for lack of subject-matter jurisdiction. We do so
because the applicability of the DBA’s exclusivity provision, like the applicability
of the LHWCA’s exclusivity provision, presents an issue of preemption, not
jurisdiction.11 Federal preemption is an affirmative defense that a defendant


       10
          See Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. May 1981) (“Jurisdictional
issues are for the court—not a jury—to decide, whether they hinge on legal or factual
determinations. The unique power of district courts to make factual findings which are
decisive of jurisdiction is, therefore, not disputed.” (internal citations omitted)).
       11
         See Garcia v. Amfels, Inc., 254 F.3d 585, 588 (5th Cir. 2001) (observing “[t]he LHWCA
is a preemption defense”); Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 364-67 (5th Cir. 1995)

                                              8
                                No. 10-20202 c/w 10-20371

must plead and prove.12 Unless the complaint itself establishes the applicability
of a federal-preemption defense—in which case the issue may properly be the
subject of a Rule 12(b)(6) motion13—a defendant should ordinarily raise
preemption in a Rule 12(c) motion for judgment on the pleadings or a Rule 56
motion for summary judgment.14 We will review the district court’s order
denying KBR’s Rule 12(b)(1) motion as an order denying KBR summary
judgment.
                                               A
       We ordinarily review a district court’s grant of summary judgment de
novo, applying the same standards as the district court.15 As noted above,
however, in this case we are reviewing a district court’s denial of a summary
judgment motion certified for interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b).      “[O]ur appellate jurisdiction under § 1292(b) extends only to
controlling questions of law . . . .”16 Accordingly, “we review only the issue of law


(discussing preemptive effect of the LHWCA’s exclusivity provision).
       12
         Met. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987) (“Federal pre-emption is ordinarily
a federal defense to the plaintiff’s suit.”); Fifth Third Bank ex rel. Trust Officer v. CSX Corp.,
415 F.3d 741, 745 (7th Cir. 2005) (“Federal preemption is an affirmative defense upon which
the defendants bear the burden of proof.”); see also Elam v. Kan. City S. Ry. Co., 635 F.3d 796,
802 (5th Cir. 2011) (“The party asserting federal preemption has the burden of persuasion.”).
       13
         See Kansa Reinsurance Co. v. Cong. Mortg. Corp. of Tex., 20 F.3d 1362, 1366 (5th Cir.
1994) (observing that dismissal under Rule 12(b)(6) may be appropriate “when a successful
affirmative defense appears on the face of the pleadings”).
       14
         See Mosely v. Bd. of Educ. of Chi., 434 F.3d 527, 533 (7th Cir. 2006) (observing that
the earliest possible time to consider an affirmative defense “would normally be after the
answer has been filed, if it is possible to decide the issue through a Rule 12(c) motion for
judgment on the pleadings”).
       15
          Travelers Lloyds Ins. Co. v. Pac. Emp’rs Ins. Co., 602 F.3d 677, 681 (5th Cir. 2010)
(citing Allstate Ins. Co. v. Disability Servs. of the Sw., Inc., 400 F.3d 260, 262-63 (5th Cir.
2005)).
       16
        Tanks v. Lockheed Martin Corp., 417 F.3d 456, 461 (5th Cir. 2005) (citing Malbrough
v. Crown Equip. Corp., 392 F.3d 135, 136 (5th Cir. 2004)).

                                                9
                                No. 10-20202 c/w 10-20371

certified for appeal,” which in this case is whether the district court properly
interpreted the scope of the DBA’s coverage.17
                                             B
      The DBA is a general reference statute that extends workers’
compensation coverage under the Longshore and Harbor Workers’ Compensation
Act (LHWCA) to “employees of American contractors engaged in construction
related to military bases in foreign countries, and to foreign projects related to
the national defense whether or not the project is located on a military base.”18
As the United States observes in its amicus brief in this court, the DBA
establishes a uniform, federal compensation scheme for civilian contractors and
their employees for injuries sustained while providing functions under contracts
with the United States outside its borders. The DBA provides compensation for
“the injury or death of any employee engaged in any employment . . . under a
contract entered into with the United States [or any sub-component thereof] . . .
where such contract is to be performed outside the continental United States.”19
“[T]he compensation protocol provided by the LHWCA governs a claim under the
DBA except to the extent the DBA specifically modifies a provision of the
LHWCA. If the DBA provides a specific modification then the provisions of the
DBA control.”20
      We have explained that the DBA “was adopted at the request of the
Secretary of War in order to save the previous heavy expense of providing its
contractors with insurance of such employees on the basis of tort liability and




      17
           Id.
      18
           AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 1112 (5th Cir. 1991).
      19
           42 U.S.C. § 1651(a)(4).
      20
           AFIA/CIGNA, 930 F.2d at 1112-13 (internal citations omitted).

                                             10
                                 No. 10-20202 c/w 10-20371

full accident insurance.”21 Like the LHWCA and other workers’ compensation
statutes, the DBA represents a compromise between employees and their
employers. “Employers relinquish[] their defenses to tort actions in exchange
for limited and predictable liability,”22 and “[e]mployees accept the limited
recovery because they receive prompt relief without the expense, uncertainty,
and delay that tort actions entail.”23 Thus, the DBA, like the LHWCA, includes
a provision making an employer’s liability under the workers’ compensation
scheme exclusive.24 If an employee’s injury is covered under the DBA, he is
generally precluded from pursuing a tort claim against his employer to recover
for the same injury.25
       Here, KBR argues Plaintiffs’ injuries are compensable under the DBA and
Plaintiffs thus cannot proceed with their tort claims against KBR. As the
district court properly recognized, whether Plaintiffs’ claims come within the
DBA is resolved by determining whether Plaintiffs suffered an “injury” as that
term is defined by the DBA through reference to the LHWCA. The LHWCA
provides:


       21
            O’Keeffe v. Pan Am. World Airways, Inc., 338 F.2d 319, 322 (5th Cir. 1964).
       22
         Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs, 461 U.S.
624, 636 (1983).
       23
         Id.; see also Davila-Perez v. Lockheed Martin Corp., 202 F.3d 464, 468 (1st Cir. 2000)
(“The purpose of the Defense Base Act is to provide uniformity and certainty in availability of
compensation for injured employees on military bases outside the United States.”).
       24
            See 42 U.S.C. § 1651(c).
       25
           See Flying Tiger Lines, Inc. v. Landy, 370 F.2d 46, 52 (9th Cir. 1966) (“[T]he coverage
provisions of the Defense Base Act clearly evidence the intent that the act shall afford the sole
remedy for injuries or death suffered by employees in the course of employments which fall
within its scope.”); cf. Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 367 (5th Cir. 1995) (holding
plaintiff’s claim under Texas’s Deceptive Trade Practices Act preempted by the LHWCA’s
exclusivity provision); Johnson v. Odeco Oil & Gas Co., 864 F.2d 40, 44 (5th Cir. 1989) (holding
that the LHWCA preempts worker’s negligence claim against his employer for injuries suffered
on offshore oil rig during hurricane).

                                               11
                                 No. 10-20202 c/w 10-20371

      The term “injury” means accidental injury or death arising out of
      and in the course of employment, and such occupational disease or
      infection as arises naturally out of such employment or as naturally
      or unavoidably results from such accidental injury, and includes an
      injury caused by the willful act of a third person directed against an
      employee because of his employment.26
      After reviewing the briefs and arguments of the parties and amici, and the
district court’s order, we believe that the question of whether the DBA bars
Plaintiffs from proceeding with their state tort claims against KBR turns on
three issues. First, we will consider whether Plaintiffs’ injuries were injuries
“caused by the willful act of a third person directed against [Plaintiffs] because
of [their] employment.” Second, we will address whether, if Plaintiffs’ injuries
do fall within the scope of the DBA’s coverage as the result of willful acts of third
parties directed against them because of their employment, Plaintiffs can
nevertheless proceed with their intentional tort claims against KBR under the
theory that KBR knew the insurgent attacks were substantially certain to occur
and failed to protect Plaintiffs from the attacks. Third, we will consider whether
coverage of Plaintiffs’ injuries under the DBA precludes Plaintiffs from pursuing
their fraud claims against KBR.
                                               1
      We begin with the definition of “injury . . . arising out of and in the course
of employment” as “an injury caused by the willful act of a third person directed
against an employee because of his employment.”27 We read this definition of
injury as encompassing four distinct elements in addition to the requirement
that the injury arose out of and in the course of employment. There must (1) be
a willful act; (2) by a third person; (3) directed against the employee because of
his employment; (4) that causes the employee’s injury. Here, the first two of


      26
           33 U.S.C. § 902(2).
      27
           Id. (internal quotation marks omitted).

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                               No. 10-20202 c/w 10-20371

those elements are clearly satisfied. Insurgent attacks on KBR convoys no doubt
qualify as willful acts by third persons. The questions we must resolve are
whether the insurgent forces attacked Plaintiffs “because of [their] employment”
and whether the insurgent attacks “caused” Plaintiffs’ injuries for purposes of
DBA coverage.
                                               a
       We first address the scope of the requirement that a third party act
against an employee “because of his employment.” As an initial matter, we note
that in the typical case the question of whether a third party acts against an
employee “because of his employment” will present a question of fact28 residing
outside of this court’s jurisdiction over an interlocutory appeal under § 1292(b).29
It is well established, however, that a question of law is presented when the facts
of a case are undisputed and a reasonable person can draw only one plausible
inference from those facts.30 This is such a case, and, for the reasons below, we
conclude the district court erred as a matter of law when it failed to determine
that the insurgent attacks on Plaintiffs constituted the willful acts of third
persons directed against Plaintiffs because of their employment.



       28
         Cf. Tanks v. Lockheed Martin Corp., 417 F.3d 456, 465 (5th Cir. 2005) (applying
Mississippi’s workers’ compensation statute).
       29
         See La. Patients’ Comp. Fund Oversight Bd. v. St. Paul Fire & Marine Ins. Co., 411
F.3d 585, 588 (5th Cir. 2005) (observing that under § 1292(b) we do not review whether a party
has presented sufficient evidence to avoid summary judgment).
       30
           See Tanks, 417 F.3d at 465 (applying Mississippi law and holding “if the facts
surrounding the cause of an employment-related injury are undisputed, we will treat the issue
as a legal one”); cf. Boos v. AT&T, Inc., 643 F.3d 127, 132 (5th Cir. 2011) (“Although intent is
often a question of fact, here, where the underlying facts are undisputed, the question is one
of law.”); Wilander v. McDermott Int’l, Inc., 887 F.2d 88, 89-90 (5th Cir. 1989) (quoting Barrett
v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1072-73 (5th Cir. 1986) (en banc)) (“Even where the
facts are largely undisputed, the question at issue is not solely a question of law when, because
of conflicting inferences that may lead to different conclusions among reasonable men, a trial
judge cannot state an unvarying rule of law that fits the facts.” (internal quotation marks and
citations omitted)).

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                                No. 10-20202 c/w 10-20371

       As in any case involving the interpretation of a statute, we begin with the
statute’s language.31 Section 902(2)’s requirement that a third party act against
an employee “because of his employment” clearly indicates Congress’s intent to
require some connection between an injured employee’s employment and a third
party’s assault on that employee. In this respect, the language represents
Congress’s recognition of the proposition that employees are generally entitled
to workers’ compensation for injuries caused by the intentional acts of third
parties when there is a connection between the third-party assault and the
conditions and character of the employee’s occupation.
       On this point we note that Congress patterned the LHWCA on the New
York Workers’ Compensation Law of 1922.32 Although the New York law did not
include a provision explicitly providing for the coverage of injuries caused by the
willful acts of third parties,33 New York cases from the period prior to the
LHWCA’s enactment consistently recognized coverage under New York’s
compensation scheme for such injuries.34                   New York courts rejected
compensation claims, however, in cases in which the third party acted against
the employee for purely personal reasons having no relationship to the
employee’s work. For example, in Scholtzhauer v. C&L Lunch Co.,35 the Court


       31
        United States v. Rains, 615 F.3d 589, 596 (5th Cir. 2010) (citing Watt v. Alaska, 451
U.S. 259, 265 (1981)) (“As in any case involving statutory interpretation, we begin by
examining the text of the relevant statutes.”).
       32
         See Potomac Elec. Power Co. v. Dir., Office of Workers’ Comp. Programs, 449 U.S. 268,
275 n.13 (1980).
       33
         See N.Y. WORKERS’ COMP. LAW § 2(7) (defining “injury” as “only accidental injuries
arising out of and in the course of employment”; Wager v. White Star Candy Co., 217 N.Y.S.
173, 175 (N.Y. App. Div. 1926).
       34
          See, e.g., Knocks v. Metal Package Corp., 131 N.E. 741, 741-43 (N.Y. 1921); In re
Heitz, 112 N.E. 750, 751-52 (N.Y. 1916); Hellman v. Manning Sand Paper Co., 162 N.Y.S. 335,
336 (N.Y. App. Div. 1916).
       35
            134 N.E. 701 (N.Y. 1922).

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                                 No. 10-20202 c/w 10-20371

of Appeals of New York held that an award under workers’ compensation could
not be made to the father of a woman who was killed by a coworker. The
coworker, a black man, had invited the daughter to go out with him in the
evening.36 The daughter declined and remarked to another employee that “she
would not go out with a negro.”37 Angered by her remarks, the coworker shot her
with a pistol.38 The Court of Appeals rejected her father’s claim, observing that
“[t]he only suggestion that the employment had any bearing on the injury was
that the employment brought the two persons together.”39 The court concluded:
      The fact that the murder took place on the employer’s premises was
      a mere incident. It might equally well have happened on the
      sidewalk in front of the building, or while the daughter was on her
      way home, or at any other place where Arthurs had chanced to meet
      her. Had Arthurs made the proposal to the daughter while she was
      away from the place of employment, and after her rejection of it had
      killed her, it could not with any reason be contended that a claim
      could arise under the Compensation Law.40
The “because of” requirement in § 902(2) is simply a codification of this principle:
an employee is not entitled to compensation when a third party acts for purely
personal reasons only coincidentally related to the employee’s work.
      Decisions by the few courts that have had the opportunity to interpret and
apply § 902(2)’s “because of” requirement reinforce this conclusion. In Maryland
Casualty Co. v. Cardillo,41 the District of Columbia Circuit upheld the award of
compensation under the District of Columbia’s workers’ compensation


      36
           Id. at 702.
      37
           Id.
      38
           Id.
      39
           Id.
      40
           Id. (internal citation omitted).
      41
           107 F.2d 959 (D.C. Cir. 1939).

                                              15
                                No. 10-20202 c/w 10-20371

statute—which for many years, like the DBA, operated through reference to the
LHWCA42—to an insurance collector who was abducted, robbed, and beaten to
death.       The court observed the evidence in the record supported the
determination “that the assault and robbery were ‘directed against’ the employee
because of his employment”:
      Common sense and common knowledge tell us that when a known
      insurance collector has his collection equipment with him, at the
      end of the day, he appears to be carrying money, and that a man
      who appears to be carrying money is more likely to be attacked and
      robbed than another man. It follows that, if Najjum’s insurance
      “book” gave notice that he was an insurance collector, his
      employment exposed him to a special risk. He was in fact abducted,
      robbed, and murdered by persons who recognized him by his “book”
      as an “insurance man.”43
Similarly, in Penker Construction Co. v. Cardillo,44 the District of Columbia
Circuit upheld the award of compensation to the widow of an employee who was
killed by a fellow coworker after the employee refused to pay the coworker a
commission for finding him the job. The court observed the employee “was killed
because he had employment for which he refused to pay a fee” and held the
award of benefits was valid because the commissioner’s findings were
“equivalent to a finding that the injury was ‘caused by the willful act of a third
person directed against an employee because of his employment.’”45
      On the other hand, in Kirkland v. Director, Office of Worker’s




      42
         See Burns v. Dir., Office of Workers’ Comp. Programs, 41 F.3d 1555, 1558 n.4 (D.C.
Cir. 1994) (observing that the District of Columbia Workman’s Compensation Act of 1928,
which was repealed in 1982, extended the provisions of the LHWCA to “the injury or death of
an employee of an employer carrying on any employment in the District of Columbia”).
      43
           Md. Cas. Co., 107 F.2d at 961.
      44
           118 F.2d 14 (D.C. Cir. 1941).
      45
           Id. at 15.

                                            16
                                  No. 10-20202 c/w 10-20371

Compensation Programs,46 the District of Columbia Circuit upheld the denial of
compensation in a case in which an administrative assistant for a company
affiliated with the CIA was murdered during a robbery of his home.47 The court
observed that “[n]othing regarding [the employee’s] employment as ‘an
administrative assistant who prepared leave requests . . . and handled pilot
problems’ caused him to be murdered while being robbed by his wife’s friend.”48
The court in Kirkland characterized the requirement as simply necessitating a
“credible connection” between the third party’s actions and the employment.49
Together these cases suggest that an injury caused by a third party occurs
“because of” the employee’s employment so long as there is a credible causal
nexus between the employment and the third party’s act.
       Turning to the instant case, the facts relevant to the issue of whether the
Iraqi insurgents attacked Plaintiffs “because of” Plaintiffs’ employment are
undisputed. There is no dispute, for example, that insurgents attacked Plaintiffs
while Plaintiffs were on the job fulfilling a primary job responsibility: providing
logistical support services to the United States Army by driving fuel trucks
between United States’ military installations in Iraq. There is also no dispute
that, in addition to attacking Plaintiffs, insurgents attacked a number of other


       46
            No. 90-1267, 1991 WL 13948 (D.C. Cir. Feb. 7, 1991).
       47
            Id. at *1.
       48
            Id. at *2 (internal citation omitted).
       49
          Id. at *1; see also Fazio v. Cardillo, 109 F.2d 835, 836 (D.C. Cir. 1940) (“[I]njuries
sustained by an employee in a personal difficulty with another employee of the same employer,
having no relation to the employment itself and in which there is no causal connection between
the injury and the employment, are not compensable.”); cf. Tanks v. Lockheed Martin Corp.,
417 F.3d 456, 465 (5th Cir. 2005) (quoting Big “2" Engine Rebuilders v. Freeman, 379 So. 2d
888, 890-91 (Miss. 1980)) (“The words ‘because of,’ like the other broadly-construed words of
causation with the [Mississippi Workers’ Compensation Act], such as ‘arising out of,’ express
the necessity of a nexus between the injury and employment. This nexus requires a showing
of minimal causation: only a rational connection between employment and injury is necessary.”
(internal quotation marks, citations, and brackets omitted)).

                                                 17
                           No. 10-20202 c/w 10-20371

targets, including coalition forces, Iraqi police stations, Iraqi citizens applying
for positions with the Iraqi police, and other targets related to the government
and infrastructure of Iraq. April 9, 2004, marked the first anniversary of the
United States’ presence in Baghdad, and the parties do not dispute that
insurgent attacks on that day were wide-ranging.
      In considering this evidence, the district court concluded that “ample
evidence” existed from which one could infer that Plaintiffs “were assaulted not
because they drove fuel trucks for [KBR], but because they were American on the
first day of Arabeen, the one year anniversary of the United States’ presence in
Baghdad.” In addition to pointing to the evidence that insurgents conducted
attacks on people and facilities unaffiliated with KBR, Plaintiffs also note that,
although they ordinarily drove white trucks with red markings in order to
advertise their civilian status, they were driving green camouflaged vehicles at
the time they were attacked. Plaintiffs appear to argue that insurgents could
have mistaken them for members of coalition forces in Iraq, rather than KBR
truck drivers, and that they therefore were not attacked because of their
employment as truck drivers.
      We cannot agree with the district court’s assessment of the inferences that
can be drawn from these facts, however, or with Plaintiffs’ attempt to
manufacture a fact question on this issue by pointing to insurgent attacks on
other targets. The only plausible inference to be drawn from the facts in this
case is the inference that Plaintiffs were attacked because of their employment.
Indeed, Plaintiffs’ case is the quintessential case of a compensable injury arising
from a third party’s assault. If we were to accept the district court’s and the
Plaintiffs’ reasoning, the DBA would rarely apply to operations on foreign soil
or those that support a war, even though the Act is expressly applicable to
“projects or operations under service contracts and projects in connection with



                                        18
                                No. 10-20202 c/w 10-20371

the national defense or with war activities,”50 and “war activities” is defined to
include “activities directly relating to military operations.”51 The argument
could always be asserted that an employee was killed or injured not because of
her employment, but because she was an American or because she was
mistakenly thought to be a member of the armed forces rather than a civilian
supporting the activities of the armed forces. Congress did not intend such a
construction of its enactment, and the words that it employed in setting forth its
intent are not reasonably susceptible to such an interpretation.
      The United States argues in its amicus brief, and we agree, that:
             [A] test dependent upon an evaluation of an enemy attacker’s
      subjective intent or motivation is unworkable and would be
      impossible to apply. Coverage under the DBA cannot properly
      depend upon a court’s speculation regarding an unknown
      tortfeasor’s motives, particularly during military operations,
      because the identity of insurgents and their precise motivations can
      never be determined with any degree of certainty. Instead, the
      statutory requirement that an injury be “directed against an
      employee because of his employment” is meant only to exclude
      injuries willfully caused by third parties that obviously have
      nothing to do with their employment – that is, where it is clear that
      a tort was motivated by personal animosity rather than any nexus
      to employment. Where, as here, it is at least plausible that the
      willful act of a third party was directed at an employee “because of
      his employment,” no speculation regarding the motivations of that
      third party – who will often be unknown in the context of combat
      operations – it required or appropriate. In short, the court erred in
      holding that the prong of the LHWCA defining “injury” to include
      the willful acts of third parties was not applicable to plaintiffs’
      injuries in this case.
      This construction of the Act is buttressed by well-understood principles
regarding workers’ compensation schemes. As a leading workers’ compensation
treatise recognizes: “the clearest ground of compensability in the assault

      50
           42 U.S.C. § 1651(b)(1).
      51
           Id. § 1651(b)(3).

                                           19
                          No. 10-20202 c/w 10-20371

category is a showing that the probability of assault was augmented either
because of the particular character of claimant’s job or because of the special
liability to assault associated with the environment in which he or she must
work.”52
      We think it self-evident that driving trucks in Iraq in support of United
States military operations augmented the probability that Plaintiffs would fall
victim to an attack by insurgent forces, and that the character of Plaintiffs’
employment—providing       support    services   to    an   occupying   military
force—increased the likelihood that Plaintiffs would be targeted by forces
opposed to the United States’ presence in Iraq in 2004.           Similarly, the
environment in which Plaintiffs fulfilled their job duties—the roadways of
Iraq—exposed Plaintiffs to the special risk of assault by insurgents. There is a
reason, after all, that the contract between KBR and the military called for the
military to provide force protection for KBR convoys: attacks by enemy
insurgents were a risk attendant to the operation of those convoys.
      Plaintiffs’ failure to acknowledge the connection between their
employment and the attacks of April 9 stems from their overly narrow
conception of the nature of their employment.         Plaintiffs were not simply
employed as truck drivers; rather, Plaintiffs were driving trucks in support of
the American coalition’s rebuilding and security efforts in Iraq. All of the
evidence pointed to by Plaintiffs and the district court establishes that
insurgents were attacking targets related to those efforts.        Under these
circumstances, there can be no reasonable dispute that a clear connection exists
between Plaintiffs’ employment and the insurgents’ attacks on Plaintiffs’
convoys. Accordingly, the attacks occurred “because of” Plaintiffs’ employment.
                                       b


      52
          1-8 ARTHUR LARSON & LEX K. LARSON, LARSON’S WORKERS’ COMPENSATION LAW
§ 8.01[1][a], at 8-3 (2011).

                                      20
                                No. 10-20202 c/w 10-20371

      We next consider the requirement of the DBA that an employee’s injuries
be “caused by” the third party’s acts. Plaintiffs appear to argue that their
injuries were not caused by the insurgent attacks but by KBR’s failure to halt
convoy operations once it was aware that attacks on other convoys were
occurring.      Plaintiffs invoke the “familiar theory of tort law that permits
recovery even though another actor or cause intervenes to be the direct cause of
injury.”53 Plaintiffs point, for example, to the RESTATEMENT (SECOND) OF TORTS
§ 449, which provides: “If the likelihood that a third person may act in a
particular manner is the hazard or one of the hazards which makes the actor
negligent, such an act whether innocent, negligent, intentionally tortious, or
criminal does not prevent the actor from being liable for harm caused thereby.”54
In short, Plaintiffs ask us to approach the question of whether a third party has
“caused” a worker’s injuries for purposes of § 902(2) as we would approach the
issue of proximate causation in a tort case involving an intervening act by a
third party.
      The obvious infirmity in Plaintiffs’ argument is that the question of
whether insurgents “caused” their injuries concerns the scope and effect of a
congressionally enacted workers’ compensation scheme. Even if KBR’s actions
or inactions were a cause of the death of, or injuries to, its employees, the
insurgents’ actions constituted a cause as well. The attacks by insurgents and


      53
           Lane v. Halliburton, 529 F.3d 548, 566 (5th Cir. 2008).
      54
         RESTATEMENT (SECOND) OF TORTS § 449. See also RESTATEMENT (SECOND) OF TORTS
§ 449, which states:

      The act of a third person in committing an intentional tort or crime is a
      superseding cause of harm to another resulting therefrom, although the actor’s
      negligent conduct created a situation which afforded an opportunity to the third
      person to commit such a tort or crime, unless the actor at the time of his
      negligent conduct realized or should have realized the likelihood that such a
      situation might be created, and that a third person might avail himself of the
      opportunity to commit such a tort or crime.

                                              21
                                 No. 10-20202 c/w 10-20371

resulting injuries fall squarely within the statutory language “injury caused by
the willful act of a third person directed against an employee because of his
employment.”55 The DBA does not carve out from its coverage employees’
injuries that would otherwise be covered by the Act as injuries resulting from a
third party’s intentional tort when there may be a concurring cause. In a case
like this one, in which a third party’s assault is a direct cause of the employee’s
injuries, we think it clear that the third party’s act has “caused” the injury for
purposes of coverage under the DBA.
                                              c
      Finally, in the interest of completeness, we will comment on an argument
Plaintiffs’ counsel raised at oral argument.          Counsel suggested that the
definition of injury as “an injury caused by the willful act of a third person
directed against an employee because of his employment” is not applicable in a
case in which the third party’s acts have resulted in the death of the employee.
The LHWCA clearly addresses and rejects this argument, however, when it
provides that “[d]eath as a basis for a right to compensation means only death
resulting from an injury.”56
                                             d
      In sum, Plaintiffs here suffered injuries due to intentional torts committed
by third parties because of Plaintiffs’ employment. It is a matter of common
sense that when insurgent forces in Iraq attack an Army-led fuel-supply convoy,
the insurgents are attacking the convoy because of its role in supporting the
Army’s operations in that country. Plaintiffs, as drivers of trucks in such
convoys, suffered injuries because of their role in those operations. The injuries
qualify for coverage under the DBA.


      55
           33 U.S.C. § 902(2).
      56
           33 U.S.C. § 902(11) (emphasis added).

                                             22
                                No. 10-20202 c/w 10-20371

       Were we to construe the DBA as the Plaintiffs urge us to do, many of those
injured by insurgent attacks in Iraq or other battle zones would be without a
remedy. If the DBA did not apply because the worker was killed or injured by
intentional acts of third parties because he was an American, and there was no
negligence or other fault on the part of the employer, there would be no
meaningful remedy. This, patently, is not what Congress intended.
                                                2
       We next consider whether Plaintiffs can proceed with their intentional-tort
claims against KBR. We conclude the DBA bars Plaintiffs from pursuing such
claims in this case.
       It is a recurring theme in workers’ compensation law that injuries arising
from an employer’s intentional tort do not fall within the scope of coverage for
compensation purposes. A number of courts have held in the LHWCA context,
for example, that an employee can sue his employer if the employer committed
an intentional tort.57         This circuit has not yet expressly recognized this
intentional tort “exception” to coverage under the LHWCA,58 but the cases so
holding typically reason that an injury occurring as a result of an employer’s
intentional act is not “accidental” for purposes of the LHWCA’s “accidental




       57
           See, e.g., Sample v. Johnson, 771 F.2d 1335, 1346 (9th Cir. 1985); Roy v. Bethlehem
Steel Corp., 838 F. Supp. 312, 316 (E.D. Tex. 1993) (“The employer can be sued under LHWCA,
however, if he committed an intentional tort, i.e., genuine, intentional injury.”); Houston v.
Bechtel Assocs. Prof’l Corp., D.C., 522 F. Supp. 1094, 1096 (D.D.C. 1981) (observing “[t]he
courts have . . . carved out an exception to exclusive liability provisions where the injury
inflicted is the result of an intentional act”); Austin v. Johns-Manville Sales Corp., 508 F. Supp.
313, 316 (D. Me. 1981) (“Nothing short of a specific intent to injure the employee falls outside
the scope of the [LHWCA].”); Rustin v. District of Columbia, 491 A.2d 496, 501 (D.C. 1985)
(observing that the LHWCA’s exclusivity provision “does not reach actions where the employer
specifically intended to injure the employee”).
       58
        See Johnson v. Odeco Oil & Gas Co., 864 F.2d 40, 44 (5th Cir. 1989) (assuming that
LHWCA would not preclude a lawsuit by an employee for an intentional tort committed by his
employer but ultimately finding it unnecessary to examine the LHWCA’s scope).

                                               23
                                No. 10-20202 c/w 10-20371

injury” definition of injury.59 It has also been said that such an injury is not the
result of a third party’s willful act because employers are not third parties under
the LHWCA.60 Importantly, the cases take a very narrow view of the types of
intentional injury that lie outside of the LHWCA—the cases consistently require
that the employer have had a specific intent or desire that the injury occur.61
       The facts of this case do not fit the mold of the type of intentional tort that
some courts heretofore have recognized as an exception to coverage under the
LHWCA. Plaintiffs have not challenged the district court’s determination below
that there is no evidence in the record “support[ing] the proposition that [KBR]
desired that any of the drivers be injured or killed in an attack by Iraqi
insurgents.” Accordingly, this case does not require us to determine whether the
DBA includes within its scope injuries caused by an employer’s intentional
assault of an employee with the specific desire to injure the employee.
       Plaintiffs did argue to the district court below, however, that KBR
committed an intentional tort by failing to act to protect Plaintiffs from
“substantially certain” injury. Plaintiffs observed in their briefing to the district


       59
          See Sharp v. Elkins, 616 F. Supp. 1561, 1566 (D. La. 1985) (“[I]f an employer commits
a willful act against its employee, then the injury to the employee apparently has not been
caused by a ‘third person’, is not accidental and, thus, not compensable under the Act.”); cf.
Grillo v. Nat’l Bank of Wash., 540 A.2d 743, 748 (D.C. 1988) (“[B]y definition, injuries to an
employee that are intended by the employer fall outside of the [District of Columbia’s Workers’
Compensation Act’s] exclusivity provisions, even though they are work-related, because they
are nonaccidental.”). See generally 6-103 ARTHUR LARSON & LEX K. LARSON, LARSON’S
WORKERS’ COMPENSATION LAW § 103.01, at 103-3 (2011) (“Several legal theories have been
advanced to support [the employer intentional tort] exception to exclusivity. The best is that
the employer will not be heard to allege that the injury was ‘accidental,’ and therefore was
under the exclusive provision of the workers’ compensation act, when the employer
intentionally committed the act.”).
       60
            See Sharp, 616 F. Supp. at 1565-66.
       61
          See id. at 1565; Bechtel Assocs. Prof’l Corp., D.C., 522 F. Supp. at 1096 (“Nothing
short of a specific intent to injure the employee falls outside the scope of § 905(a). Absent such
specific intent, the employee is foreclosed from maintaining a tort action against his
employer.”).

                                               24
                              No. 10-20202 c/w 10-20371

court, for example, that the RESTATEMENT (SECOND) OF TORTS defines “intent”
to mean “that the actor desires to cause consequences of his act, or that he
believes that the consequences are substantially certain to result from it.”62
Although Plaintiffs did not raise this argument in their briefing to this court,
they did assert it during their oral presentations. According to Plaintiffs, the
facts showed that KBR was substantially certain that Plaintiffs’ convoys would
be attacked and KBR failed to exercise its power to halt the convoy operations.
We will consider Plaintiffs’ argument in the interest of completeness. The
question we confront is whether, even if an employee’s injury falls within the
scope of the DBA’s coverage as the result of a willful act of a third party directed
against the employee because of his employment, the employee can nevertheless
proceed with an intentional-tort claim against his employer under the theory
that the employer knew that the third party’s assault was substantially certain
to occur and failed to protect him from the assault.
       We conclude that such an employee cannot proceed with an intentional-
tort claim. The Supreme Court has “repeatedly admonished courts faced with
technical questions arising under the LHWCA [that] ‘the wisest course is to
adhere closely to what Congress has written.’”63 This sound advice applies
equally, of course, to questions arising under the DBA.64 As noted above, the
DBA’s plain text provides (through reference to the LHWCA) that compensable
injury under the DBA “includes an injury caused by the willful act of a third
person directed against an employee because of his employment.” The DBA
further provides that “[t]he liability of an employer, contractor (or any

       62
            RESTATEMENT (SECOND) OF TORTS § 8A (1965).
       63
         Wash. Metro. Area Transit Auth. v. Johnson, 467 U.S. 925, 934 (1984) (quoting
Rodriguez v. Compass Shipping Co., 451 U.S. 596, 617 (1981)).
       64
         See United States v. Rains, 615 F.3d 589, 596 (5th Cir. 2010) (citing Watt v. Alaska,
541 U.S. 259, 265 (1981)) (“As in any case involving statutory interpretation, we begin by
examining the text of the relevant statutes.”).

                                             25
                                No. 10-20202 c/w 10-20371

subcontractor or subordinate subcontractor with respect to the contract of such
contractor) under this chapter shall be exclusive and in place of all other liability
of such employer, contractor, subcontractor, or subordinate contractor to his
employees . . . .”65 These provisions admit of no exception for cases in which an
employee claims his employer was “substantially certain” that the employee
would be assaulted by a third party because of his employment. Rather, we
think “the coverage provisions of the Defense Base Act clearly evidence the
intent that the act shall afford the sole remedy for injuries or death suffered by
employees in the course of employments which fall within its scope.”66
      Moreover, we agree with the reasoning of the United States’ amicus brief
that allowing an injured employee to recover from his employer under this
theory of intentional-tort liability would inject into the DBA’s workers’
compensation scheme an element of uncertainty at odds with the statute’s basic
purpose: providing prompt relief for employees, and limited and predictable
liability for employers. Unlike a standard that focuses on an employer’s specific
desire and intent to harm an employee, the substantially certain standard is an
objective standard belonging to a group of tort concepts that focuses on the
probability that a certain result will occur. As the Restatement observes,
negligence, recklessness, and intent premised on substantial certainty are all
points on a continuum of probability:
      If the actor knows that the consequences are certain, or
      substantially certain, to result from his act, and still goes ahead, he
      is treated by the law as if he had in fact desired to produce the

      65
           42 U.S.C. § 1651(c) (emphasis added). See also 33 U.S.C. § 905(a), which provides:

      The liability of an employer prescribed in section 904 of this title shall be
      exclusive and in place of all other liability of such employer to the employee, his
      legal representative, husband or wife, parents, dependents, next of kin, and
      anyone otherwise entitled to recover damages from such employer at law or in
      admiralty on account of such injury or death . . . .
      66
           Flying Tiger Lines, Inc. v. Landy, 370 F.2d 46, 52 (9th Cir. 1966).

                                               26
                              No. 10-20202 c/w 10-20371

       result. As the probability that the consequences will follow
       decreases, and becomes less than substantial certainty, the actor’s
       conduct loses the character of intent, and becomes mere
       recklessness, as defined in § 500. As the probability decreases
       further, and amounts only to a risk that the result will follow, it
       becomes ordinary negligence, as defined in § 282.67
Whether an employee’s injury is “substantially certain” to occur thus depends
on the probability that the injury will follow from the employer’s acts.
       The difficulties in using such a probabilistic standard to determine the
scope of the DBA’s exclusivity provision should be obvious. An employer,
immune from tort liability for negligent or reckless conduct leading to an injury
covered by the DBA, would have to conduct its business with an eye toward the
possibility that it could face tort liability for actions that nevertheless cross the
line from reckless conduct to conduct undertaken with the knowledge that harm
to an employee is substantially certain to result. Consider this case as an
example.     At what point could we say that KBR had knowledge it was
“substantially certain” that insurgents would attack Plaintiffs’ convoys? Was it
when KBR convoys were attacked in the days leading up to April 9? When
KBR’s security team alerted executives to the possibility of widespread violence
on that day? When the first convoys to deploy on April 9 fell under attack? Is
it even possible for an employer to be substantially certain that a third party will
attack an employee?           We think these questions illustrate the lack of
predictability that would arise under the DBA’s workers’ compensation scheme
if we allowed employees to proceed with tort claims under the “substantially
certain” theory of liability even though their injuries qualify for coverage under
the DBA as injuries resulting from the willful acts of third parties.
       In sum, we hold that coverage of an injury under the DBA precludes an
injured employee from recovering from his employer under a “substantially

       67
         RESTATEMENT (SECOND) OF TORTS § 8A cmt. b (1965).; see also Vision Air Flight Serv.,
Inc. v. M/V Nat’l Pride, 155 F.3d 1165, 1176 n.13 (9th Cir. 1998).

                                             27
                               No. 10-20202 c/w 10-20371

certain” theory of intentional-tort liability. On this point we believe it important
to again clarify what is not at issue in this case. We are not confronting a
situation in which the employer personally assaulted an employee. Nor are we
confronting a situation in which an employer has conspired with a third party
to inflict an assault on the employee. Nor does this case present a situation in
which an employer has subjected his employee to the acts of a third party with
the specific desire that the third party harm the employee. We see no reason to
determine whether injuries arising in such scenarios would be covered by the
DBA. Under the circumstances of this case, however, the DBA’s remedy is
exclusive.68
                                              3
       Finally, Plaintiffs argue that, even if the DBA covers their injuries and
thus provides their exclusive remedy for those injuries, they should be allowed
to proceed with their fraud claims against KBR. The Plaintiffs base their fraud
claims on allegations that KBR, during its recruitment efforts, misled them to
believe that they were noncombatants who would never be sent into combat.
The district court, in its resolution of a separate case that was decided with


       68
         Cf. Talik v. Fed. Marine Terminals, Inc., 885 N.E.2d 204, 212 (Ohio 2008) (holding
that the LHWCA “preempts a claim under Ohio law alleging that the claimant’s employer
caused an injury through an intentional act committed with the belief that injury was
‘substantially certain’ to occur”); Grillo v. Nat’l Bank of Washington, 540 A.2d 743, 754 (D.C.
1988). The court in Grillo said:

       What appellants urge is not a clarification of the majority rule, but adoption of
       a new exception to the exclusivity provision of the WCA, in disregard of the
       coverage of injuries caused by a third-party, based on the evidence that NBW
       violated laws designed to assure the safety of the workplace and was aware that
       one of its employees had been killed by a robber under similar circumstances.
       Even those jurisdictions that have adopted the substantial certainty standard
       do not go so far when the injury is the result of an intentional act by a third
       person over whom the employer has no control. Thus the remedy must lie with
       the legislature.

Grillo, 540 A.2d at 754.

                                              28
                                 No. 10-20202 c/w 10-20371

Plaintiffs’ cases, concluded that the DBA does prevent an employee from
pursuing a fraud claim to recover damages for an injury covered by the DBA.69
       We agree with the district court. Although Plaintiffs argue that their
fraud claims accrued as soon as they entered into an employment relationship
with KBR, this argument misses the point. The Plaintiffs do not seek rescission
of their employment agreements. Rather, they seek damages for injuries that
are compensable under the DBA. It is a generally accepted proposition of
workers’ compensation law that an employer’s deceit that precedes and helps
produce an otherwise compensable injury merges into that injury for purposes
of compensation coverage.70 There may be an exception to this rule when an
employer deceives his employees with the specific intent and desire to cause the
injury for which the employee seeks to recover,71 but, as discussed above, this
case does not present those facts.             Accordingly, we believe the DBA bars
Plaintiffs from using their fraud claims to recover for their injuries.
                                               III
       Because we conclude that all of the Plaintiffs’ state-law claims are barred
by the DBA, we do not consider whether we have jurisdiction in this
interlocutory appeal to consider KBR’s challenges to other orders of the district
court, which include rulings regarding the political-question issue and other


       69
            Fisher v. Halliburton, 703 F. Supp. 2d 639, 659 (S.D. Tex. 2010).
       70
         See 6-104 ARTHUR LARSON & LEX K. LARSON, LARSON’S WORKERS’ COMPENSATION
LAW § 104.03, at 104-8 to 104-9 (observing that, in cases in which the alleged deceit precedes
and helps produce the injury, “a tort action has usually been found barred, since the deceit, so
to speak, merges into the injury for which a compensation remedy is provided”); see also
Mergenthaler v. Asbestos Corp. of America, 480 A.2d 647, 650 (Del. 1984) (citing Gambrell v.
Kan. City Chiefs Football Club, Inc., 562 S.W.2d 163 (Mo. Ct. App. 1978)) (“[D]eceit that
precedes and helps produce an injury is held barred because it merges into the injury for which
a compensation remedy is provided.”).
       71
        See Mylroie v. GAF Corp., 440 N.Y.S.2d 67, 69 (N.Y. App. Div. 1981) (holding fraud
claims barred by workers’ compensation law because it was not alleged that employer
committed fraud with the purpose and specific intent to cause plaintiff’s injuries).

                                               29
                              No. 10-20202 c/w 10-20371

defenses. Whether this case presents a nonjusticiable political question is a
significant issue, particularly since KBR sought to have the role of the United
States considered under section 33.004(I) of Texas Civil Practice and Remedies
Code not as a party to the litigation, but as a responsible third party. Chapter
33 of that Code allows a defendant to designate a responsible third party and,
once the party is so designated and there is evidence sufficient to submit a
question to the jury regarding the conduct of the party, requires the trier of fact
to determine the percentage of responsibility for a plaintiff’s harm attributable
to the plaintiff, the defendant, any settling persons, and the responsible third
party.72 The designation of a person as a responsible third party or a finding of
fault against that person “does not by itself impose liability on the person” and
“may not be used in any other proceeding . . . to impose liability on the person.”73
Even parties “who are not subject to the court’s jurisdiction or who are immune
from liability to the claimant” can be designated responsible third parties under
the statute.74 We do not, however, reach these issues.
                                    *        *      *
      For the above reasons, we VACATE the district court order on the issue
certified for appeal in No. 10-20371 and REMAND the case with instructions to
dismiss Plaintiffs’ state tort claims. We DISMISS KBR’s appeal in No. 10-20202
as MOOT.




      72
           TEX. CIV. PRAC. & REM. CODE § 33.003.
      73
           Id. § 33.004(I).
      74
          In re Unitec Elevator Servs. Co., 178 S.W.3d 53, 58 n.5 (Tex. App.—Houston [1st
Dist.] 2005, no pet.).

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