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Allen v. Fluor Corp.

United States District Court, N.D. Texas, Dallas Division

June 15, 2017

CARRIE LAURNETTE ALLEN, et al., Plaintiffs,



         Defendant Fluor Corporation's (“Fluor's”) motion to dismiss presents the dispositive question whether, under the Afghanistan Labor Code, Fluor can be held liable to the United States citizen plaintiffs in this case for unpaid overtime pay. Concluding that Fluor cannot-because the Code applies only to foreign citizens who, unlike the plaintiffs here, have obtained or will obtain work permits-the court grants Fluor's motion and dismisses this case with prejudice.


         This is a putative class action by United States citizen plaintiffs seeking unpaid overtime pay under provisions of Article 67 of the Afghanistan Labor Code. Plaintiffs' employer, Fluor, [1] contracted with the U.S. Army to provide noncombat logistical support. Plaintiffs[2] allege that they are past or present non-managerial, hourly Fluor employees who worked as Tier II FGG Contractors on the Logistics Civil Augmentation Program IV - Task Order 5 (“LOGCAP IV”) contract, providing civilian support in the form of construction, housing, transportation, fuel, meal, or laundry services for U.S. soldiers serving in Afghanistan.[3] They assert that Fluor paid them an annual “salary” of $45, 000, classified them as exempt from overtime wages, paid them at a straight time rate for overtime hours worked rather than at the premium overtime rates required by Afghanistan law, and required that they work twelve hours per day, seven days per week, without overtime premium pay. Plaintiffs aver that, despite their classification as “exempt, ” their weekly compensation was paid at an hourly rate and that they performed duties typically performed by hourly, non- exempt employees. They allege that the exempt classification and resulting failure to pay them overtime pay for overtime hours worked is unlawful because they do not satisfy the requirements of any applicable exemption to overtime laws.

         The Afghanistan Labor Code sets an ordinary working period of 40 hours per week, and requires that employers pay a premium of 25% of the hourly wage (on work days) or 50% of the hourly wage (on weekends or holidays) for overtime hours worked. Plaintiffs allege that the Bilateral Security Agreement (“BSA”) between the United States of America and Afghanistan, and the Status of Forces Agreement (“SOFA”)[4] regarding North Atlantic Treaty Organization (“NATO”) activities in Afghanistan, subject U.S. government contractors to Afghan law.

         Plaintiffs bring this action on behalf of themselves and a class composed of the following:

All United States citizens who are working or have worked as Tier II employees for Defendant in Afghanistan under the LOGCAP IV - Task Order 5 contract, and who were paid straight time rates for overtime work hours and not paid on a salary basis in any week during the period commencing June 1, 2008 through the entry of final judgment in this action.

         1st Am. Compl. ¶ 24. They assert one cause of action, alleging that Fluor is liable for violating Article 67 of the Afghanistan Labor Code based on its failure to pay them overtime compensation.

         Fluor moves to dismiss.[5] Although Fluor's motion cites only Fed.R.Civ.P. 12(b)(6), its contentions also raise issues of subject matter jurisdiction under Rule 12(b)(1). Plaintiffs oppose the motion. The court has heard oral argument.


         The court begins by setting out the standards that apply to Fluor's requests for relief under Rule 12(b)(1) and 12(b)(6).

         “Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims.” Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). A Rule 12(b)(1) motion can mount either a facial or factual challenge. See, e.g., Hunter v. Branch Banking & Tr. Co., 2013 WL 607151, at *2 (N.D. Tex. Feb. 19, 2013) (Fitzwater, C.J.) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981)). When a party makes a Rule 12(b)(1) motion without including evidence, the challenge to subject matter jurisdiction is facial. Id. The court assesses a facial challenge as it does a Rule 12(b)(6) motion in that it “looks only at the sufficiency of the allegations in the pleading and assumes them to be true. If the allegations are sufficient to allege jurisdiction, the court must deny the motion.” Id. (citation omitted) (citing Paterson, 644 F.2d at 523). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (citations omitted).

         In deciding a Rule 12(b)(6) motion, the court evaluates the sufficiency of plaintiffs' first amended complaint “by accepting all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff[s].” Bramlett v. Med. Protective Co. of Fort Wayne, Ind., 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)) (internal quotation marks and brackets omitted). To survive a motion to dismiss under Rule 12(b)(6), plaintiffs must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556); see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level[.]”). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘shown'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)) (brackets omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Furthermore, under Rule 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although “the pleading standard Rule 8 announces does not require ‘detailed factual allegations, '” it demands more than “‘labels and conclusions.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “[A] formulaic recitation of the elements of a cause of action will not do.” Id. (quoting Twombly, 550 U.S. at 555).


         The court turns first to Fluor's contention that this dispute is a political question that is unsuitable for judicial resolution.


         “Invocation of the political question doctrine implicates the district court's jurisdiction. [Federal courts] are duty-bound to examine the basis of subject matter jurisdiction[.]” Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir. 2008) (internal quotation marks omitted). “The political-question doctrine forecloses as nonjusticiable actions which would improperly require judicial review of decisions exclusively within the purview of the political branches of government.” Kuwait Pearls Catering Co., WLL v. Kellogg Brown & Root Servs., Inc., 853 F.3d 173, 178 (5th Cir. 2017). “[T]he Supreme Court identified ‘formulations' that may help determine whether a particular case raises a political question, ” Lane, 529 F.3d at 558 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)):

(1) “a textually demonstrable constitutional commitment of the issue to a coordinate political department;”
(2) “a lack of judicially discoverable and manageable standards for resolving it;”
(3) “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;”
(4) “the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;”
(5) “an unusual need for unquestioning adherence to a political decision already made;”
(6) “or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

Id. (quoting Baker, 369 U.S. at 217). “[M]atters implicating foreign relations and military affairs are generally beyond the authority or competency of a court's adjudicative powers . . . . But, obviously, it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Kuwait Pearls Catering, 853 F.3d at 179 (citations and internal quotation marks omitted).


         Fluor contends that the use and cost of contractors in a theater of war is a sensitive military matter that should be insulated from judicial scrutiny. It posits that opening contractors to liability under local employment law could unacceptably increase their costs, leading either to increased cost to the government or to scarcity of contractor services. Fluor also maintains that other branches of government have already spoken to the issues raised in plaintiffs' claim, including by stating a preference for nonjudicial dispute resolution in the BSA. And Fluor contends that U.S. courts are ill-suited to decide questions of Afghan law, which derives from a different legal culture and regulates a much different economy.

         Plaintiffs respond that their claim is suited to judicial resolution because it is an employment dispute between a private company and its employees, which does not significantly touch on U.S. military operations or foreign affairs. Plaintiffs posit that coordinate branches of government have not, in fact, addressed the question whether contractor employees in Afghanistan are entitled to overtime pay. Plaintiffs dispute Fluor's characterization of the BSA, and contend that ...

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