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Boone v. MVM

July 9, 2009

DAVE A. BOONE, PLAINTIFF - APPELLANT,
v.
MVM, INC., A CALIFORNIA CORPORATION THAT DOES BUSINESS IN COLORADO, DEFENDANT - APPELLEE.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. NO. 05-CV-02504-EWN-CBS).

The opinion of the court was delivered by: Murphy, Circuit Judge.

PUBLISH

Before HENRY, Chief Circuit Judge, MURPHY, and TYMKOVICH, Circuit Judges.

I. Introduction

Plaintiff-Appellant Dave Boone alleges he was wrongfully discharged from his position as contractor for Defendant-Appellee MVM, Inc. ("MVM"), with whom he had been providing security services to a U.S. Government agency in Iraq. He alleges he was terminated because he reported illegal and unethical conduct on the part of fellow contractors. The district court analyzed his wrongful discharge claim under Virginia law and dismissed it on the grounds that Virginia would not recognize such a claim on the facts of this case. On appeal, Boone argues only that the district court erred in its choice-of-law analysis. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court AFFIRMS the judgment of the district court because Virginia has the greatest interest in having its laws enforced in this case.

II. Background

Boone is a U.S. Army Special Forces retiree. MVM is a defense contractor that, during the time period relevant to this lawsuit, provided security services for the U.S. Government in Iraq. In early 2004, Boone learned from a fellow Special Forces retiree that MVM was recruiting, and he contacted the company about obtaining a position. MVM did not have any positions immediately available, so Boone subsequently began working for a different security firm and was deployed to Tashkent, Uzbekistan. He resigned shortly after arriving in Uzbekistan because he felt there were leadership problems and security issues. He contacted MVM from Uzbekistan and was told there was a position available with a team deploying to Iraq. Boone traveled from Uzbekistan to MVM's Virginia headquarters. In Virginia he prepared for deployment by procuring clothing and tactical gear, completing administrative forms, taking a polygraph test, and obtaining an ID card. Boone also executed a contract with MVM titled "Independent Contractor Agreement" ("ICA"). The ICA stated it would be governed by Virginia law. Boone then deployed directly from Virginia to Iraq.

MVM deployments lasted ninety days. Following Boone's first ninety-day deployment, he met with MVM officers to express concerns about the unethical activities of other team members, including discussions about the formation of a competing company, the unauthorized purchase of weapons, and the submission of improper receipts. He verbally informed MVM he would no longer work on that contract as long as the offending team members were on the team. In August 2004, MVM contacted Boone, told him the offending team members were no longer involved, and asked him to redeploy to Iraq with the company, which he did.

During his second deployment, Boone relayed several concerns to his team leader. He stated one team member was having an improper affair with the staff member of a client, an active duty member of the military for whom the MVM team was providing security. He also claimed team members were procuring and possessing unauthorized weapons and explosives. On November 20, 2004, the team's convoy was attacked by a vehicle-borne improvised explosive device. The convoy was temporarily stranded after the explosion and one of Boone's team members began firing his weapon at a nearby building, which Boone thought inappropriate because there was no visible threat in that direction.

About three or four days after the incident, Boone's team leader relayed concerns about Boone to MVM. The team leader believed Boone was a liability to the team and was not a team player, and requested that Boone be removed from the team. Two other team members prepared an After Action Report ("AAR") about the November 20 incident. The AAR stated that, after the explosion, the team had come under fire from twenty or thirty gunmen posted in buildings on either side of the road. The AAR claimed there were three insurgents killed and seven injured. According to Boone, the AAR was totally fabricated; he had not seen any enemy fire from surrounding buildings. Boone informed his team leader of his disagreement with the AAR.

On December 8, 2004, Boone's deployment ended, and he returned to the United States. He expected to be redeployed around January 20, 2005, and called the program manager at MVM on or about January 13 to coordinate his return. The program manager told him he was on hold because of the team leader's concerns arising out of the November 20 incident. Boone replied he believed the team leader was retaliating against him for his refusal to acquiesce in the improper conduct of his fellow team members. The program manager told Boone he would investigate the matter and asked Boone to call the following week. On January 18, Boone called the program manager and was told he would not be redeploying with the team. Boone protested and said he was willing to go to MVM's headquarters and make his case. MVM then summoned Boone to a meeting at its headquarters. At the meeting, Boone reiterated his concerns about misconduct on the part of his team members. He was again told he would not be redeployed with the team.

During the entire time period in question, Boone had a home in Colorado where he lived with his wife when he was not deployed. His paychecks were sent to his Colorado address. Boone also owned some land and an unfinished cabin in Alaska. In 2004, he listed Alaska as his residence on his federal tax return, and he received an Alaska Permanent Fund dividend for 2004. He had an Alaska driver's license, paid unemployment taxes to Alaska in 2005, and listed Alaska as his residence in September of 2005 when he completed several documents in connection with his work for another security firm.

Boone filed suit in Colorado state court alleging two counts of breach of contract and one count of wrongful discharge in violation of public policy. MVM removed the case to federal court and subsequently moved for summary judgment on all counts. The district court granted summary judgment to MVM on all counts. On the wrongful discharge claim, the district court applied Colorado's choice-of-law rules and concluded Virginia law governed the claim. It granted summary judgment because it concluded Virginia would not recognize a wrongful discharge claim on these facts. Boone appeals only ...


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