Claims of U.S. Soldiers and Veterans Permitted to Move Forward in Burn Pit Litigation
(October 2010) By Eric M. Leppo, Associate
For more information, contact Paul Farquharson.
In Re: KBR, Inc., Burn Pit Litigation,
Master Case No.: RWT 09 md2083 (U.S. District Court for the District of Maryland, September 8, 2010) |
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In this recent memorandum opinion, Judge Roger W. Titus of
the U.S. District Court for the District of Maryland denied the Motion to
Dismiss of Defendant Kellogg, Brown & Root, Inc. (KBR). The Court held that the
Plaintiffs—a collection of American soldiers, veterans, and former contractor
employees who served or worked in Iraq and Afghanistan—are entitled to limited
discovery to determine whether their claims can survive in light of KBR’s
potential defenses as a government contractor.
KBR, a private contractor, was awarded a U.S. Military
Logistics Civil Augmentation Program “LOGCAP” contract, specifically it was
awarded the Army’s third LOGCAP contract “LOGCAP III.” This contractual
agreement was for the provision of water treatment and waste disposal at
military bases in Iraq and Afghanistan. One method of waste disposal used by KBR
was the burning of items in open pits, hence the term “burn pit” litigation. The
Plaintiffs had brought forty-three separate actions in forty-two different
states alleging exposure to both contaminated water, and toxic emissions from
the burn pits. All cases were consolidated, and assigned to the U.S. District
Court for the District of Maryland for pre-trial proceedings.
KBR filed a Motion to Dismiss Plaintiffs' Complaints on
three theories related to their status as a government contractor. KBR
contended that Plaintiffs' claims are nonjusticiable under the political
question doctrine; that KBR is entitled to derivative sovereign immunity;
and that the Plaintiffs' claims are preempted by the combatant activities
exception to the Federal Tort Claims Act (“FCTA”) 28 U.S.C. § 2680(j).
At the outset of the Opinion, the Court noted that
“subjecting government contractors who provide services to the U.S. military
in war zones to private civil suits under state tort law necessarily
requires caution by the judiciary.” In re KBR, Inc., *2. However, the Court
was equally wary of the converse: “the judiciary may prematurely close
courtroom doors to soldiers and civilians injured from wartime logistical
activities performed by hired hands . . .” In re KBR, Inc., *3.
The Court first addressed the claim that the
Plaintiffs' Complaints should be dismissed pursuant to the political
question doctrine. The political question doctrine is a recognition of the
constitutional separation of powers, and the inherent limitations of the
judiciary. Baker v. Carr, 369 U.S. 186, 210 (1962). The doctrine seeks to
ensure that the Judiciary does not have inappropriate interference in other
branches of government. The Court applied the six factor test from the
Supreme Court's Baker decision, and determined that dismissal was not
appropriate. The Court found that the bare allegations of the Complaint did
not make claims that would require the Court to investigate or second guess
military decisions, but rather simply alleged that KBR's actions violated
its military contract. Therefore the allegations alone did not present a
clear situation in which the Judiciary would improperly involve itself in
the Administrative branch.
The Court next determined that KBR was not entitled to
derivative sovereign immunity under the FTCA's discretionary function
exception. The Court noted that the FTCA explicitly excludes independent
contractors from its direct scope, and then determined that at such an early
stage of the litigation, KBR was not entitled to derivative sovereign
immunity. The Court found that blanketing government contractors with the
cloak of sovereign immunity so early in the litigation would be a heavy
cost. The Plaintiffs contend KBR was actually in breach of LOGCAP III
without the military's permission to disobey military directives. The Court
determined that if true, refusing compensation to the Plaintiffs and
allowing the contractor's unauthorized conduct would be contrary to the
fundamental tenets of the American legal system. In re KBR, Inc., *29.
Finally, the Court denied KBR's contention that it was
entitled to dismissal based on the combatant activities exception. KBR
argued that it was entitled to sovereign immunity for any claim arising out
of the combatant activities of the military during time of war. The Court
noted that few decisions have been issued on the combatant activities
exception to the FTCA and that KBR's work treating water and handling waste
on military bases may not arise out of “combatant” activity. The Court
indicated that Plaintiffs are at least entitled to conduct discovery so
additional facts are available to the Court in considering the issue
further.
In an effort to be careful of protecting the separation
of powers, the Court allowed only limited discovery to obtain facts that
would allow the Court to make an informed decision on these arguments.
Further the United States Government was invited to participate in the
litigation and the discovery plan as amicus curiae going forward.
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