                        REVISED April 15, 2010

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                                 No. 09-20441              March 23, 2010

                                                        Charles R. Fulbruge III
KRISTEN MARTIN; DONALD TOLFREE, deceased,                       Clerk

                                           Plaintiffs - Appellees
v.

HALLIBURTON; KBR INC; KELLOGG BROWN & ROOT INC; KELLOGG
BROWN & ROOT SERVICES INC; SERVICE EMPLOYEES
INTERNATIONAL INC,

                                           Defendants - Appellants



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


Before KING, JOLLY, and STEWART, Circuit Judges.
KING, Circuit Judge:
      Defendants–appellants, affiliated governmental contractors providing
logistical support to the United States Army in Iraq, appeal the denial of their
Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.
Plaintiffs–appellees move to dismiss the appeal for lack of subject matter
jurisdiction. We lack subject matter jurisdiction and must dismiss the appeal.
                                       No. 09-20441

                                  I. BACKGROUND
A.     Factual Background
       This case reaches us still in its infancy, and the record is accordingly
underdeveloped. The facts that follow are drawn primarily from the complaint
below and from attachments to motions filed in the district court.
       Defendants1 are affiliated governmental contractors providing logistical
support to the United States military in Iraq. Plaintiff–appellee Kristen Martin
is the adult daughter of Donald Tolfree, a civilian employed by Defendants.
Tolfree was recruited by Defendants in December 2006 to drive trucks in convoys
in Iraq. Martin alleges that Tolfree relied on Defendants’ assurances that he
would be 100% safe and protected by the United States military during his
employment in Iraq. Tolfree arrived in Iraq in January 2007, where he was
assigned to Logistics Support Area (LSA) Anaconda. In February 2007, he was
asked if he would volunteer to drive a “chase truck” in an upcoming convoy.2
Tolfree agreed to do so.
       Martin’s complaint alleges that Defendants acted negligently in executing
the convoy operation. According to Martin’s complaint, there was no written
policy regarding the use of chase trucks, and Tolfree—who had been onsite for
less than one month—was not told of any unwritten policies. Tolfree believed
that his duty was to follow the convoy from its departure point within LSA
Anaconda to the base’s north gate, a distance of about ten miles. He believed
that he would be contacted by radio and instructed to turn around at the


       1
          Specifically, they are Halliburton; KBR, Inc.; Kellogg Brown & Root, Inc.; Kellogg
Brown & Root Services, Inc.; and Service Employees International, Inc. The complaint filed
also listed ten individual defendants as “John Doe.” John Doe 1 is alleged to have been the
“convoy commander,” “an employee of Defendants acting in a supervisory/command capacity”
over the decedent during the convoy operation at issue in this case. John Doe 1 is not a party
to this appeal. For simplicity, we refer to appellants collectively as “Defendants.”
       2
        A “chase truck” is a semi-truck without an attached trailer that acts as a backup in
the event that a truck with an attached trailer becomes disabled during the convoy.

                                              2
                                  No. 09-20441

appropriate time. Tolfree’s chase truck was equipped with a non-military radio,
and a radio dead zone prevents non-military radio communications around the
perimeter of LSA Anaconda. As a result, Tolfree followed the convoy past the
north gate, at which point Defendants radioed for “the extras” to turn around.
Tolfree did so, passing at least two vehicles at the rear of the convoy. The
drivers of those vehicles confirmed with the convoy commander that the extra
trucks were no longer to be part of the convoy. The convoy commander did not
contact the sentry posted at the north gate about Tolfree’s return.
      Military protocol requires trucks such as the one Tolfree was driving to be
accompanied by gun trucks during a return to camp. The sentry posted at the
north gate of LSA Anaconda saw Tolfree’s chase truck returning and, noting that
none of Defendants’ trucks was scheduled to enter the camp, applied protocol for
dealing with unscheduled and unescorted vehicles attempting to enter LSA
Anaconda. Tolfree died instantly when a gunner fired one hundred .50-caliber
rounds into the chase truck.
      Martin alleges that a representative of Defendants falsely informed her
that Tolfree had been killed by an insurgent’s roadside bomb rather than by
friendly fire. Her complaint alleges that Defendants continued to misrepresent
the circumstances of Tolfree’s death as late as a year after the fact.
B.    The Logistics Civil Augmentation Program
      Defendants’ involvement in convoy operations in Iraq occurs under the
auspices of the Logistics Civil Augmentation Program (LOGCAP). In 1985, the
United States Army issued Army Regulation 700–137, which initiated
LOGCAP.      Army Reg. 700–137, at 1–1 (Dec. 16, 1985).            The LOGCAP
regulations describe LOGCAP’s purpose as “to preplan for the use of civilian
contractors to perform selected services in wartime to augment Army forces.
Utilization of civilian contractors in a theater of operation will release military
units for other missions or fill shortfalls.” Id. The LOGCAP regulations


                                        3
                                      No. 09-20441

expressly state that “[c]ontractors will not be used to perform inherently
governmental functions.” Id. at 3–2(d)(8). The term “governmental function” is
defined as “[a] function which is so intimately related to the public interest as
to mandate performance by Government employees. These functions include
those activities which require either the exercise of discretion in applying
Government authority or the use of value judgements in making decisions for
the Government.” Id. at Glossary § I.
       On December 14, 2001, under the authority of the LOGCAP Program, the
Army awarded Contract No. DAAA09-02-D-0007 (the “LOGCAP III Contract”)
to Brown & Root Services, Inc., a division of Kellogg Brown & Root.3                   The
LOGCAP III Contract was designated a “rated order” contract, making its
performance mandatory under the Defense Production Act of 1950 (DPA), 50
U.S.C. app. §§ 2061–2171. The willful failure to perform a rated order contract
carries a criminal penalty. See id. §§ 2071(a) & 2073. Defendants aver that the
logistics and transportation services in which Tolfree was engaged were
performed pursuant to Task Order 139, issued by the Army in August 2006.
Only the first two pages of the LOGCAP III Contract are in the record, and Task
Order 139 is completely absent. Martin alleges (and Defendants admit in their
answer) that there was a novation of the LOGCAP III Contract in 2003 that
transferred contractual duties from Kellogg Brown & Root to Kellogg Brown &
Root Services. The two pages from the LOGCAP III Contract that are in the
record bear a date stamp of December 14, 2001, which precedes the novation by
a minimum of one year.




       3
         Some of Martin’s allegations and the parties’ arguments rely on the relationship of
Defendants to each other and to the Government. Our resolution here does not require us to
unravel those relationships, a task that would be challenging given the state of the record
before us.

                                             4
                                        No. 09-20441

C.     Procedural History
       Martin filed a diversity suit in district court on February 5, 2009, asserting
state law tort claims against Defendants for their actions in recruiting Tolfree,
executing the convoy operation, and misrepresenting the cause of his death.4 On
April 3, 2009, Defendants moved to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) of the Federal Rules of Civil Procedure, urging several
distinct theories: (1) official immunity; (2) derivative sovereign immunity; (3)
immunity under the DPA; and (4) preemption of state law under the combatant
activities exception to the Federal Tort Claims Act (FTCA). Several exhibits
were attached to their motion, including two Army regulations, an Army field
manual, and two pages of the LOGCAP III Contract.5 The district court denied
the motion without opinion or explanation on June 8, 2009.6 Defendants then
filed an answer and appealed the district court’s order. The record does not
reflect that Defendants requested that the district court either explain its


       4
         The claims are for negligence, wrongful death, fraud and fraud in the inducement,
intentional infliction of emotional distress, survivorship, and civil conspiracy to commit fraud.
Martin also seeks punitive damages for fraud, malice, and gross negligence.
       5
         We confess to being somewhat perplexed by Defendants’ decision to move for dismissal
under Rule 12(b)(1) without at least alternatively arguing that the case should be dismissed
on the same grounds under Rule 12(b)(6) for failure to state a claim on which relief can be
granted. The proper characterization of a motion to dismiss is not without legal consequences.
“[T]he standard of Rule 12(b)(1) . . . while similar to the standard of Rule 12(b)(6), permits the
court to consider a broader range of materials in resolving the motion.” Williams v. Wynne,
533 F.3d 360, 365 n.2 (5th Cir. 2008) (citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th
Cir. 1986)). However, in our analysis of this appeal, we need not determine the proper
characterization of the motion or the propriety of many of the attached documents. This is
because our consideration of the LOGCAP III Contract excerpt is permitted by the stricter
standard of Rule 12(b)(6), see Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99
(5th Cir. 2000), as is our discussion of the LOGCAP regulations, see Poindexter v. United
States, 777 F.2d 231, 236 (5th Cir. 1985); see also Lane v. Halliburton, 529 F.3d 548, 554 (5th
Cir. 2008) (describing the LOGCAP regulations). The remaining attached documents are
unnecessary to our disposition, and we accordingly do not address whether they are properly
considered.
       6
       As a rule, “[d]istrict courts should state for the record the reasons for denying
immunity.” Morin v. Caire, 77 F.3d 116, 119 n.3 (5th Cir. 1996).

                                                5
                                      No. 09-20441

decision or certify the decision for interlocutory appeal under 28 U.S.C.
§ 1292(b).7 Before any briefs had been filed, Martin filed a motion before this
court to dismiss the appeal as interlocutory; that motion was carried with the
case. The district court ordered further proceedings stayed pending the outcome
of this appeal.
                                   II. DISCUSSION
       Before we can proceed to the merits of this appeal, we must examine
whether we have jurisdiction to do so. We have jurisdiction to determine our
own jurisdiction. Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 169
(5th Cir. 2009) (citing Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Tex.,
Inc., 481 F.3d 265, 268 (5th Cir. 2007)). As the appellants, Defendants bear the
burden of establishing our appellate jurisdiction. Acoustic Sys., Inc. v. Wenger
Corp., 207 F.3d 287, 289 (5th Cir. 2000).
       Our appellate jurisdiction is ordinarily limited to “final decisions of the
district courts of the United States.” 28 U.S.C. § 1291. “For purposes of § 1291,
a final judgment is normally deemed not to have occurred until there has been
a decision by the District Court that ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Henry, 566 F.3d at 171
(alterations and internal quotation marks omitted) (quoting Midland Asphalt
Corp. v. United States, 489 U.S. 794, 798 (1989)). In addition to our jurisdiction



       7
        Section 1292(b) provides:
      When a district judge, in making in a civil action an order not otherwise
      appealable under this section, shall be of the opinion that such order involves
      a controlling question of law as to which there is substantial ground for
      difference of opinion and that an immediate appeal from the order may
      materially advance the ultimate termination of the litigation, he shall so state
      in writing in such order. The Court of Appeals which would have jurisdiction of
      an appeal of such action may thereupon, in its discretion, permit an appeal to
      be taken from such order, if application is made to it within ten days after the
      entry of the order . . . .
28 U.S.C. § 1292(b).

                                             6
                                       No. 09-20441

over appeals from final decisions, we have statutory jurisdiction over appeals
from certain interlocutory orders and decrees under § 1292(a), but neither party
urges the application of that provision. Prospective appellants who seek to
appeal interlocutory orders that do not qualify under § 1292(a) are ordinarily
limited to the certification procedure of § 1292(b); as noted above, that procedure
was not followed here. Thus, our jurisdiction must exist, if at all, under § 1291.
       Defendants urge that the collateral order doctrine recognized in Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), supports jurisdiction.8
“The collateral order doctrine is best understood not as an exception to the ‘final
decision’ rule laid down by Congress in § 1291, but as a ‘practical construction’
of it.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994)
(quoting Cohen, 337 U.S. at 546). “[T]he collateral order doctrine accommodates
a ‘small class’ of rulings, not concluding the litigation, but conclusively resolving
‘claims of right separable from, and collateral to, rights asserted in the action.’”
Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting Behrens v. Pelletier, 516 U.S
299, 305 (1996)). “The claims are ‘too important to be denied review and too
independent of the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.’” Id. (quoting Cohen, 337 U.S. at
546). The Supreme Court, in describing the requirements of the collateral order
doctrine, has emphasized the doctrine’s limited application:
              The requirements for collateral order appeal have been
       distilled down to three conditions: that an order [1] conclusively
       determine the disputed question, [2] resolve an important issue
       completely separate from the merits of the action, and [3] be
       effectively unreviewable on appeal from a final judgment. The
       conditions are stringent, and unless they are kept so, the underlying
       doctrine will overpower the substantial finality interests § 1291 is
       meant to further: judicial efficiency, for example, and the sensible


       8
        Indeed, Defendants’ notice of appeal states that it “is based upon the collateral order
doctrine” and does not refer to any other basis for appellate jurisdiction.

                                              7
                                        No. 09-20441

       policy of avoid[ing] the obstruction to just claims that would come
       from permitting the harassment and cost of a succession of separate
       appeals from the various rulings to which a litigation may give rise.
             Accordingly, we have not mentioned applying the collateral
       order doctrine recently without emphasizing its modest scope. And
       we have meant what we have said; although the Court has been
       asked many times to expand the small class of collaterally
       appealable orders, we have instead kept it narrow and selective in
       its membership.
Will, 546 U.S. at 349–50 (citations and internal quotation marks omitted;
alterations in original); see also Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599,
605 (2009) (“In applying Cohen’s collateral order doctrine, we have stressed that
it must ‘never be allowed to swallow the general rule that a party is entitled to
a single appeal, to be deferred until final judgment has been entered.’” (quoting
Digital Equip., 511 U.S. at 868)).
       The universe of orders from which collateral order review may be taken is
relatively limited.9 The Supreme Court has identified a handful of orders that
are collaterally reviewable,10 and we have allowed such review for others.11


       9
           We note that the denial of a motion to dismiss under Rule 12 may be immediately
appealable under the collateral order doctrine in appropriate cases. See Behrens, 516 U.S. at
307 (“Mitchell [v. Forsyth, 472 U.S. 511 (1985),] clearly establishes that an order rejecting the
defense of qualified immunity at either the dismissal stage or the summary judgment stage is
a ‘final’ judgment subject to immediate appeal.”).
       10
         These are orders denying: absolute immunity, Nixon v. Fitzgerald, 457 U.S. 731, 742
(1982), qualified immunity under 42 U.S.C. § 1983, Mitchell, 472 U.S. at 530, a state’s claim
of Eleventh Amendment immunity, P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 144–45 (1993), a claim of Speech or Debate Clause immunity, Helstoski v. Meanor,
442 U.S. 500, 508 (1979), and a criminal defendant’s claim of double jeopardy, Abney v. United
States, 431 U.S. 651, 660 (1977).
       11
          Our cases have extended collateral order review to denials of: a defamation
defendant’s invocation of an anti-SLAPP statute, Henry, 566 F.3d at 181, immunity under
Texas law for communications made during judicial, quasi-judicial, or legislative proceedings,
Shanks v. AlliedSignal, Inc., 169 F.3d 988, 992 (5th Cir. 1999), Foreign Sovereign Immunities
Act immunity, Stena Rederi AB v. Comision de Contratos del Comite Ejecutivo Gen., 923 F.2d
380, 385 (5th Cir. 1991), and qualified immunity under Title VII, Brown v. Tex. A & M Univ.,
804 F.2d 327, 332 (5th Cir. 1986).

                                               8
                                  No. 09-20441

Defendants have seized upon the fact that such orders typically involve “denials
of various forms of immunity.” Henry, 566 F.3d at 177. However, the forms of
immunity that may be vindicated on appeal at an early stage through collateral
order review are those that involve “not simply a right to prevail, but a right not
to be tried.”   Id.   Thus, the relevant inquiry in determining whether an
“immunity” is subject to immediate appeal under the collateral order doctrine
is whether the asserted immunity is from suit or merely from liability. Van
Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988) (“The critical question . . . is
whether ‘the essence’ of the claimed right is a right not to stand trial.” (quoting
Mitchell, 472 U.S. at 525)); Henry, 566 F.3d at 178 (“‘There is a crucial
distinction between a right not to be tried and a right whose remedy requires the
dismissal of charges. A right not to be tried in the sense relevant to the Cohen
exception rests upon an explicit statutory or constitutional guarantee that trial
will not occur.’” (quoting Midland Asphalt, 489 U.S. at 801)). Accordingly, the
Supreme Court has warned against generalizing from orders that are recognized
as immediately appealable under the collateral order doctrine because almost
any right can be characterized as a right not to be confronted with the burdens
of trial. Will, 546 U.S. at 350–51; Swint v. Chambers County Comm’n, 514 U.S.
35, 43 (1995). Instead, we proceed on a categorical basis, looking only at
whether “the class of claims, taken as a whole, can be vindicated by other
means” than immediate appeal. Mohawk Indus., 130 S. Ct. at 605.
      We must therefore examine each of the rights Defendants asserted before
the district court and now seek to appeal to determine whether the district
court’s denial of that claimed right is a collateral order that Defendants may
immediately appeal. In undertaking this jurisdictional analysis, we do not
explore the underlying merits of any of the claims Defendants press on appeal.




                                        9
                                  No. 09-20441

A.    Official Immunity
      Defendants first claim that we have jurisdiction to review the denial of
their official immunity defense under Westfall v. Erwin, 484 U.S. 292 (1988). In
Houston Community Hospital, we considered whether such a denial constituted
a collateral order. We concluded that “[w]hile a denial of official immunity is an
appealable order, the claim of immunity must be ‘substantial’ to justify an
appellate court’s collateral order review.” Houston Cmty. Hosp., 481 F.3d at
268–69 (footnote omitted). To be “substantial,” such a claim must be more than
“merely ‘colorable.’” Id. at 269 n.11.
      As originally articulated, the Westfall defense provided that “absolute
immunity from state-law tort actions should be available only when the conduct
of federal officials is within the scope of their official duties and the conduct is
discretionary in nature.” Westfall, 484 U.S. at 297–98. Shortly after the
Westfall decision, Congress enacted the Federal Employees Liability Reform and
Tort Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563 (1988), one
effect of which was to eliminate the requirement that the acts of federal officials
be discretionary. See 28 U.S.C. § 2679(d)(1); Houston Cmty. Hosp., 481 F.3d at
269. However, non-governmental entities—such as Defendants—that seek the
protection afforded by the Westfall defense remain subject to the requirement
that their acts be discretionary. Houston Cmty. Hosp., 481 F.3d at 269. “[B]y
‘discretionary,’ it is evident in context that the [Supreme] Court meant activities
that involve ‘policy-making work for the United States Government.’” NF
Indus., Inc. v. Exp.–Imp. Bank of U.S., 846 F.2d 998, 1001 (5th Cir. 1988) (per
curiam) (quoting Westfall, 484 U.S. at 299). Therefore, to establish our appellate
jurisdiction over the denial of their asserted Westfall defense, Defendants must
make a substantial showing that their allegedly tortious conduct was within the
scope of their official duties and was discretionary in the sense that it involved
governmental policy-making activities.

                                         10
                                        No. 09-20441

       We cannot conclude, based on the limited record before us, that
Defendants have made a substantial showing of entitlement to official immunity
under Westfall. As discussed above, the LOGCAP regulations expressly provide
that “[c]ontractors will not be used to perform inherently governmental
functions.” Army Reg. 700–137, at 3–2(d)(8). The term “governmental function”
is defined as “[a] function which is so intimately related to the public interest as
to mandate performance by Government employees. These functions include
those activities which require either the exercise of discretion in applying
Government authority or the use of value judgements in making decisions for
the Government.”         Id. at Glossary § I (emphases added).                This language
expressly precludes Defendants from engaging in discretionary conduct, a
prerequisite for entitlement to the Westfall defense.12 Defendants cite several
actions that they performed—allowing Tolfree’s truck to return to LSA Anaconda
without coordinating its return and training and supervising employees—but
these do not rise to the level of being “activities that involve ‘policy-making work
for the United States Government.’” NF Indus., 846 F.2d at 1001 (quoting
Westfall, 484 U.S. at 299). We therefore conclude that we lack jurisdiction over
the district court’s denial of Westfall immunity.13
B.     Derivative Sovereign Immunity
       Defendants also claim that the denial of their claim of derivative sovereign


       12
          In light of our conclusion that, for determining our appellate jurisdiction, Defendants
have failed to set forth a substantial claim of official immunity under the discretion prong of
Westfall, we do not address the other prong—whether Defendants were acting within the scope
of their official duties.
       13
          Our analysis is necessarily hampered by the absence from the record of the
substantive portions of the LOGCAP III Contract and Task Order 139, as well as any other
documents that might prove relevant. Accordingly, we limit our holding on this aspect of the
appeal to a determination that Defendants have failed to make the requisite showing on the
record before us, and we do not foreclose the possibility that Defendants may ultimately
demonstrate that they acted with the requisite discretion to warrant application of the Westfall
defense.

                                              11
                                       No. 09-20441

immunity “under theories of agency and state action” is an immediately
appealable collateral order.14         In Houston Community Hospital, a private
insurance carrier under contract with the Government to provide health benefit
plans to federal employees sought to appeal the denial of its claim of derivative
sovereign immunity. 481 F.3d at 267–68. We held that “a denial of [derivative]
sovereign immunity is not subject to immediate review under the collateral order
doctrine.” Id. at 280. We are bound by this precedent. See United States v.
Rose, 587 F.3d 695, 705 (2009) (per curiam). Accordingly, we lack jurisdiction
to review the district court’s denial of Defendants’ claim of derivative sovereign
immunity.
C.     Defense Production Act
       The district court’s order also denied Defendants’ claim of immunity under
§ 707 of the DPA, 50 U.S.C. app. § 2157. The DPA authorizes the executive to
require the acceptance and priority performance of designated contracts, id.
§ 2071(a), under threat of criminal penalties, id. § 2073. Section 707 provides:
       No person shall be held liable for damages or penalties for any act
       or failure to act resulting directly or indirectly from compliance with
       a rule, regulation, or order issued pursuant to [the DPA],
       notwithstanding that any such rule, regulation, or order shall
       thereafter be declared by judicial or other competent authority to be
       invalid. . . .


       14
         Defendants’ agency theory is based primarily on Yearsley v. W.A. Ross Construction
Co., 309 U.S. 18 (1940). That case held that landowners on the Missouri River whose land was
injured by a dam project could not seek damages from a governmental contractor engaged to
build the dam where the contractor did not exceed its validly conferred authority. Id. at 21.
       Defendants’ state action theory seeks to combine Dobyns v. E-Systems, Inc., 667 F.2d
1219 (5th Cir. 1982), and McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (11th Cir.
2007). In Dobyns, we concluded that a governmental contractor operating an early warning
surveillance station in the Sinai Peninsula was a state actor subject to constitutional
limitations on its behavior. 667 F.2d at 1221–22. In McMahon, the Eleventh Circuit
considered the possibility that “private contractor agents may be entitled to some form of
immunity that protects their making or executing sensitive military judgments . . . .” 502 F.3d
at 1351. The McMahon court ultimately declined to determine whether such an immunity
existed. Id. at 1355–56.

                                              12
                                        No. 09-20441

Id. § 2157. The Supreme Court has noted that § 707 “plainly provides immunity
. . . [b]y expressly providing a defense to liability . . . .” Hercules, Inc. v. United
States, 516 U.S. 417, 429 (1996). However, an immunity that merely provides
a defense to liability cannot justify collateral order review.                       See Van
Cauwenberghe, 486 U.S. at 524 (“The critical question . . . is whether ‘the
essence’ of the claimed right is a right not to stand trial.” (quoting Mitchell, 472
U.S. at 525)); Henry, 566 F.3d at 178.15 Defendants’ claim of immunity under
§ 707 thus fails Cohen’s unreviewability prong and “can be adequately
vindicated,” Mohawk Indus., 130 S. Ct. at 605, on review from a final judgment
under § 1291 or using the certification procedure for interlocutory appeal
available under § 1292(b).
D.     Combatant Activities Exception
       Finally, Defendants argue that we have jurisdiction to review the denial
of their claim that Martin’s causes of action are preempted by the combatant
activities exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(j).
The FTCA abrogates the Government’s sovereign immunity for torts committed
by its employees in circumstances where, if the Government were a private
person, the Government would be liable under state law. 28 U.S.C. §§ 1346(b)(1)
& 2674; Villafranca v. United States, 587 F.3d 257, 260 (5th Cir. 2009). The
Government has not, however, abrogated its sovereign immunity for torts
committed by governmental contractors and their employees. 28 U.S.C. § 2671.


       15
          As we stated in Henry:
       The Supreme Court has warned, however, that one must be careful not to play
       word games with the concept of a right not to be tried, for virtually every right
       that could be enforced appropriately by pretrial dismissal might loosely be
       described as conferring a right not to stand trial. There is a crucial distinction
       between a right not to be tried and a right whose remedy requires the dismissal
       of charges. A right not to be tried in the sense relevant to the Cohen exception
       rests upon an explicit statutory or constitutional guarantee that trial will not
       occur.
566 F.3d at 178 (citations, alterations, and internal quotation marks omitted).

                                              13
                                       No. 09-20441

The combatant activities exception withdraws, in the case of a suit against the
Government, both the jurisdictional grant and the abrogation of sovereign
immunity for “[a]ny claim arising out of the combatant activities of the military
or naval forces, or the Coast Guard, during time of war.” Id. § 2680(j).
       Defendants argue that the combatant activities exception, which they
acknowledge “does not apply directly to government contractors,” should be read
as preempting Martin’s state law claims. They cite the decisions in Saleh v.
Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), Koohi v. United States, 976 F.2d 1328
(9th Cir. 1992), and Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486 (C.D. Cal
1993), as establishing both that state law causes of action against governmental
contractors may be preempted by the combatant activities exception and that
Martin’s state law causes of action should be preempted here.                       As with
Defendants’ other defenses, the claim of preemption was denied by the district
court, and Defendants seek immediate appeal of that denial under the collateral
order doctrine.
       While the denial of a claim of preemption by the combatant activities
exception may be reviewed on appeal from a final judgment under § 1291 or, in
an appropriate case, on interlocutory appeal under § 1292(b), it may not be
immediately appealed under the collateral order doctrine. We have previously
determined that the denial of a claim that state law is preempted by federal law
is not an order that may be immediately appealed under the collateral order
doctrine. See Houston Cmty. Hosp., 481 F.3d at 268, 280 (finding no appellate
jurisdiction over an uncertified denial of a governmental contractor’s summary
judgment motion that asserted preemption of a hospital’s action by the Federal
Employee Health Benefits Act).16 This approach is reflected in the Eleventh

       16
         We are not alone in treating denials of claims of preemption as not subject to
immediate review under the collateral order doctrine. See, e.g., Joy Global, Inc. v. Wis. Dep’t
of Workforce Dev. (In re Joy Global, Inc.), 257 F. App’x 539, 541 (3d Cir. 2007) (holding that
the denial of a claim that state law claims were preempted by the Employee Retirement

                                              14
                                       No. 09-20441

Circuit’s McMahon decision, which held that the denial of a contractor’s claim
of preemption under the combatant activities exception is not an immediately
appealable collateral order. McMahon, 502 F.3d at 1366 (holding that the court
lacked appellate jurisdiction over an uncertified denial of a Rule 12(b)(6) motion
to dismiss that asserted preemption by the combatant activities exception).
       We conclude, like the Eleventh Circuit in McMahon, that the combatant
activities exception is not subject to a sui generis exemption from the ordinary
jurisdictional requirements for denials of preemption claims. This conclusion
follows from Saleh, on which Defendants rely heavily in pressing their
preemption argument. In Saleh, Iraqi nationals who had been imprisoned at the
Abu Ghraib military prison during the war in Iraq brought claims against two
private military contractors providing interrogation and translation services,
respectively, asserting that they had been abused by employees of the
contractors. Id. at 1–2. The district court in that case initially denied the
contractors’ Rule 12 motion to dismiss based on combatant activities preemption
because the contractors “ha[d] not produced sufficient factual support to justify
[the doctrine’s] application.” Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 17
(D.D.C. 2005) (“Ibrahim I”).          The district court ordered limited discovery
addressing a number of questions:


Income Security Act (ERISA) was not a collateral order); Ultra-Precision Mfg. Ltd. v. Ford
Motor Co., 338 F.3d 1353, 1359 (Fed. Cir. 2003) (stating that “Section 1292(b) more
appropriately addresses the appeal of” claims that state law is preempted by the federal patent
laws (citing Taylor v. PPG Indus., Inc., 256 F.3d 1315 (Fed. Cir. 2001))); Mathis v. Henderson,
243 F.3d 446, 448–49 (8th Cir. 2001) (noting that a claim that Title VII preempted FTCA
claims does not provide jurisdiction but accepting pendent appellate jurisdiction where the
district court’s refusal to accept an FTCA certification provided independent jurisdiction and
turned on the same issues); Jordan v. Avco Fin. Servs. of Ga., Inc., 117 F.3d 1254, 1257 (11th
Cir. 1997) (dismissing an interlocutory appeal of denial of a motion to dismiss after concluding
that “the [McCarran–Ferguson] Act is a statute of preemption rather than one granting
immunity”); Wood v. United States, 995 F.2d 1122, 1130 (1st Cir. 1993) (en banc) (holding that
“interlocutory appeal did not lie from the district court’s decision” on “whether or not federal
law preempted certain of Wood’s state law claims”), abrogated on other grounds by Osborn v.
Haley, 549 U.S. 225 (2007).

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                                      No. 09-20441

       Other than Titan’s Statement of Work, defendants[ ] have produced
       nothing beyond limited assertions to meet their factual burden of
       showing that they are entitled to [preemption]. More information
       is needed on what exactly defendants’ employees were doing in Iraq.
       What were their contractual responsibilities? To whom did they
       report? How were they supervised? What were the structures of
       command and control?
Id. at 19. Following a year of discovery, the contractors moved for summary
judgment, again asserting preemption. Ibrahim v. Titan Corp., 556 F. Supp. 2d
1 (D.D.C. 2007) (“Ibrahim II”), aff’d in part, rev’d in part, Saleh, 580 F.3d 1. The
district court undertook a fact-intensive analysis and found that the translators
had proven that they were entitled to preemption as a matter of law, id. at 10,
but that the interrogators had not conclusively demonstrated such an
entitlement, id. at 11. On appeal, the Court of Appeals for the District of
Columbia Circuit reversed in part, holding that the claims against both
contractors were preempted by the combatant activities exception. Saleh, 580
F.3d at 7. However, the court’s analysis was—like the district court’s—reliant
upon the facts obtained through the discovery process. See id. at 4 (“We think
the district judge properly focused on the chain of command and the degree of
integration that, in fact, existed between the military and both contractors’
employees . . . .”); id. at 10 (considering as significant the military’s retention of
“command authority [and] operational control over contractors”).17
       Here, by contrast, we are confronted with circumstances comparable to
those present in Ibrahim I—a record too scant to permit an informed decision
about the applicability of preemption under the combatant activities
exception—that prompted the district court in that case to order limited



       17
         In discussing Koohi, Bentzlin, Ibrahim I, Ibrahim II, and Saleh, we express neither
agreement nor disagreement with the tests or facts found significant by the respective courts
that decided those cases, as our holding renders it unnecessary for us to decide what must be
shown to support preemption under the combatant activities exception.

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                                  No. 09-20441

discovery and development of the factual record. Instructively, the two appeals
in Saleh reached the D.C. Circuit using the normal machinery of §§ 1291 and
1292(b)—the plaintiffs whose claims were dismissed on summary judgment
against one defendant appealed from a final judgment under § 1291, while the
contractor whose summary judgment motion was denied obtained certification
for interlocutory appeal under § 1292(b). Id. We agree that an appeal from an
appropriately developed and supported interlocutory order denying a claim of
preemption under the combatant activities exception may be handled using the
certification procedure available under § 1292(b).       See id. at 4 (accepting
jurisdiction of certified § 1292(b) appeal of order denying claim of combatant
activities preemption); see also McMahon, 502 F.3d at 1366; E.I. DuPont de
Nemours & Co. v. Sawyer, 517 F.3d 785, 792 (5th Cir. 2008) (accepting
interlocutory appeal, under § 1292(b), over denial of claims of preemption under
the doctrine of San Diego Building Trades Council v. Garmon, 359 U.S. 236
(1959), and by provisions of ERISA). That certification procedure was not
followed in multiple respects, and we lack jurisdiction to review Defendants’
claim that Martin’s state law causes of action are preempted.
E.    Pendent Appellate Jurisdiction
      Defendants claim that because they have “established that the District
Court’s denial of at least one of its asserted defenses is a collateral order, [we]
ha[ve] jurisdiction to review all of [Defendant’s] asserted defenses” under the
pendent appellate jurisdiction doctrine. We disagree that Defendants have
established jurisdiction over at least one asserted defense, and we consequently
do not assess the propriety of exercising pendent appellate jurisdiction here.
      In a similar vein, Martin asserts that only Kellogg Brown & Root is a
signatory to the LOGCAP III Contract and that the remaining Defendants are
not entitled to immunity or collateral order review of the denial of that
immunity. In light of our determination that we lack jurisdiction over any of the

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claims, we need not address this contention further.
                            III. CONCLUSION
      Defendants have failed to carry their burden of establishing our
jurisdiction over any aspect of this interlocutory appeal.   Accordingly, we
GRANT Martin’s motion to dismiss and DISMISS the appeal for lack of subject
matter jurisdiction.   In doing so, we express no opinion on the merits of
Defendants’ claims.
      The motion to dismiss is GRANTED; the appeal is DISMISSED. Costs
shall be borne by Defendants.




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