Court: District Court, D. Maryland; July 19, 2017; Federal District Court
In response to the September 11, 2001 terrorist attacks, the United States engaged in military operations in Iraq and Afghanistan, resulting in significant casualties: 4,484 servicemen killed and 32,251 wounded in Iraq, and 2,216 killed and 20,048 wounded in Afghanistan. The military established Forward Operating Bases (FOBs) and, due to the dangers, opted to manage waste through open burn pits, some operated by the military and others by contractors. Although the military acknowledged health risks associated with burn pits, they deemed it necessary given the conditions.
This decision led to numerous state law tort and contract claims against KBR, Inc., Kellogg, Brown, Root Services, Inc., Kellogg, Brown, Root, LLC, and Halliburton Company (referred to as the KBR Defendants). A total of sixty-three complaints have been filed, with at least forty-four claiming to be nationwide class actions, all related to the use of burn pits over a decade, rather than specific events. Common claims include wrongful use of burn pits, failure to mitigate harmful effects on health, and delays in bringing incinerators online. The Judicial Panel on Multi-District Litigation consolidated these cases in the United States District Court for the District of Maryland, renaming it "In Re: KBR, Inc. Burn Pit Litigation." Following consolidation, several Case Management Orders were issued, and a Consolidated Amended Complaint was filed, outlining the Plaintiffs' allegations against the Defendants.
Defendants failed to provide recycling services and burned hazardous materials, including plastics known to cause cancer. On January 29, 2010, they filed a motion to dismiss, arguing nonjusticiability under the political question doctrine, derivative sovereign immunity, and preemption by the Federal Tort Claims Act (FTCA). The court denied this motion on September 8, 2010, stating it lacked sufficient information to determine if the defendants' actions violated military contracts or directives. The court emphasized that if military commanders condoned any violations, claims would be barred by the political question doctrine. The court believed it could adjudicate the case without disrespecting the executive branch and found the defendants' preemption argument premature due to insufficient factual support.
The court subsequently required the parties to develop a limited discovery plan and stayed proceedings to await decisions from the Fourth Circuit on related cases. On February 27, 2013, after renewed motions to dismiss, the court dismissed all cases in the multi-district litigation, asserting there was ample information to decide the matter without extensive discovery, which would unnecessarily entangle the judiciary with military operations. The court referenced a two-part test from Fourth Circuit precedent regarding government contractors, focusing on military control over contractors and the intertwining of national defense interests with military decisions.
The Court determined that KBR's operations in war zones were subject to significant military control, particularly regarding decisions to use open burn pits for waste disposal. This military oversight was deemed crucial for evaluating the Plaintiffs’ claims, as it involved sensitive military judgments made in the context of ongoing combat operations. Unlike a previous case (Taylor), where military control was not established, the current case showed that the LOGCAP III contract indicated extensive military authority over KBR's actions. The Court emphasized that the disputes stemmed from essential military decisions over a prolonged period, leading to a strong inclination to dismiss the claims under the political question doctrine.
Additionally, the Court found that the national defense interest factor favored dismissal, as KBR's defenses would necessitate scrutinizing military decisions, which is outside judicial purview. The Court also invoked the "combatant activities" exception under the Federal Tort Claims Act, concluding that the claims were preempted, as they arose from military activities during combat. The Court referenced precedents, noting the military's active engagement in combat operations in Iraq and Afghanistan at the time relevant to the claims. Ultimately, while the Court expressed sympathy for the Plaintiffs, it asserted that any remedy should be sought through military or legislative avenues, rather than judicial intervention.
National interests influenced the court's ruling in this case. Following the court's February 27, 2013 Memorandum Opinion and Order, Plaintiffs appealed to the Fourth Circuit, asserting that the court neglected to address contradictory evidence regarding Halliburton/KBR's authorization and compliance in using burn pits. They contended that KBR only obtained authorization for one burn pit at Camp Taji and operated it contrary to military directives. Additionally, Plaintiffs alleged that KBR operated burn pits without proper military authorization and breached LOGCAP III by burning prohibited materials and failing to maintain water sanitation standards.
They challenged the court’s application of the political question doctrine, arguing it misinterpreted relevant precedent and made insufficient factual findings regarding KBR’s authority. Plaintiffs criticized the reliance on an undeveloped record, asserting it ignored their claims that KBR violated military directives. They analyzed each Baker factor, asserting the claims were justiciable. On the issue of the combatant activities exception to preemption, Plaintiffs claimed the court’s interpretation of the FTCA would broadly shield defense contractors from liability for actions related to military operations. They argued that the court erred in finding their claims preempted and failed to make necessary factual determinations about KBR’s integration with military operations. Ultimately, Plaintiffs contended that the court created a flawed preemption doctrine that contradicted established jurisprudence and resolved the cases without proper discovery.
The Fourth Circuit determined that the factual record was insufficient to decide whether the plaintiffs' claims were nonjusticiable political questions or preempted by the FTCA’s combatant activities exception. The court referenced its prior decision in Taylor, emphasizing that KBR's actions under military orders do not automatically shield claims from judicial review. The analysis focuses on two factors: the extent of military control over KBR and whether national defense interests are intertwined with military decisions.
Regarding military control, the Fourth Circuit noted evidence suggesting that the military allowed and directed the use of burn pits and maintained some oversight over water treatment functions. However, the plaintiffs presented contradictory evidence that was not addressed by the district court. The court compared the situation to Harris v. Kellogg Brown, indicating that if the military merely provided general guidelines without direct control, KBR's actions may not involve unreviewable military decisions. Ultimately, the Fourth Circuit concluded that more evidence is necessary to ascertain the level of military control over KBR’s operations regarding burn pits and water treatment.
The Fourth Circuit addressed the "National Defense Interests" factor, determining that a court must assess whether the Servicemembers' claims or KBR's defenses necessitate consideration of military judgments. It ruled that KBR's assertion that the military, rather than KBR, caused the injuries did not render the case nonjusticiable, as this was merely a causation defense. The district court only needed to evaluate military decisions related to the use, location, and operation of burn pits and water treatment without judging the propriety of these decisions. It was concluded that KBR's defense would not require evaluating military decision-making unless the military's actions were partially responsible for the injuries and the Servicemembers invoked a proportional liability system.
Regarding preemption under the FTCA's "Combatant Activities" exception, the Fourth Circuit referenced the Supreme Court's Boyle decision, which outlines a three-step process for determining federal preemption of state law. The court adopted the Third Circuit's interpretation, emphasizing that the exception aims to prevent state regulation of military conduct in warfare. It found that state tort law conflicts with the federal interest in military operations during wartime. The Fourth Circuit endorsed a test from the D.C. Circuit's Saleh case, which states that tort claims related to a private contractor's involvement in combat activities are preempted when the military maintains command authority over those activities, ensuring that the FTCA preempts state laws that affect military wartime decision-making.
The Fourth Circuit clarified that government contractors are not required to be classified as "combatants" to be involved in combatant activities, as established by the Saleh test. The court identified KBR's waste management and water treatment services as combatant activities but noted the unclear extent of KBR's integration into the military chain of command. Consequently, the court determined that neither the political question doctrine nor the FTCA's "combatant activities" exception warranted dismissal at that stage and remanded the case for further jurisdictional discovery.
Following the remand, the district court emphasized the necessity for the United States to assist in developing a discovery plan to avoid overly burdensome requests on military operations. The court had previously invited the U.S. to participate in this process to leverage its significant information relevant to the conflicting claims. A Second Amended Case Management Order was established, requiring plaintiffs to prove subject matter jurisdiction by a preponderance of the evidence due to KBR's challenge to the plaintiffs’ jurisdictional assertions. The court specified that any issues intertwined with the merits of the case should be reserved for later consideration, focusing jurisdictional discovery solely on the military's control over KBR's contract performance and KBR's integration into military command.
The scope of the jurisdictional discovery was defined to include: 1) the degree of military control over KBR's contract execution; and 2) the extent of KBR's integration into military command structures. While some information might relate to both jurisdictional and contractual issues, the court allowed arguments solely on its relevance to control and integration, excluding discussions regarding breach of contract or military approval of contract deviations. Following this, both parties commenced limited discovery as directed by the court’s management order.
The discovery process in the case was extensive, with KBR producing over 5.8 million pages of documents, which included more than 3 million emails, 102,000 pages of award fee evaluations, and 640,000 pages of contract directives. The parties conducted thirty-four depositions concerning jurisdictional issues, involving military personnel, KBR employees, and plaintiffs.
Following this extensive discovery, KBR filed a Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and for Summary Judgment under Rule 56. KBR contended that the court lacked subject matter jurisdiction, arguing that the plaintiffs' claims presented non-justiciable political questions and were preempted by the FTCA’s "combatant activities" exception.
KBR asserted that the military exercised significant control over waste management and water services, influencing critical decisions such as the use and location of burn pits. They argued that the military's involvement was evident, claiming there was no evidence that KBR operated burn pits without military authorization. KBR maintained that the military directed KBR on the operation of burn pits and the installation of incinerators, as well as on water service provisions, including setting water-quality standards.
Moreover, KBR highlighted that the military implemented oversight mechanisms to monitor KBR's performance, emphasizing that military decisions regarding waste and water services were integral to the operational framework under which KBR operated. This oversight included inspections and formal evaluations to ensure compliance with contractual obligations.
KBR contended that it could invoke a contributory negligence defense, arguing that a jury should assess whether the Plaintiffs unreasonably exposed themselves to known risks associated with burn pits. KBR asserted that pursuing these claims would violate separation-of-powers principles by requiring judicial interference in decisions reserved for the Executive Branch, particularly concerning the management of warzone-support contractors. It further claimed that adjudicating the cases would impose a significant burden on military resources. KBR referenced the Fourth Circuit's decision in Al Shimari v. CACI Premier Technology Inc., which supported the dismissal of negligence suits against battlefield contractors when military control or sensitive military judgments were involved. KBR sought summary judgment on the basis that the Plaintiffs' claims were preempted by the Federal Tort Claims Act's (FTCA) combatant activities exception, arguing that its services were inherently tied to sensitive military decisions, including the operational use of burn pits.
In response, the Plaintiffs argued that KBR operated under “what, not how” contracts, which allowed KBR discretion in executing its responsibilities while the military defined the objectives. They claimed their case focused on KBR’s contractual obligations rather than military decisions. The Plaintiffs distinguished their situation from Carmichael, emphasizing that while some military oversight existed, KBR maintained significant discretion in its operations. They cited the Eleventh Circuit's findings in Carmichael, which indicated KBR had no role in essential decision-making regarding mission execution.
Plaintiffs reference the case Harris, Taylor, and McMahon v. Presidential Airways, Inc., in which the Third, Fourth, and Eleventh Circuits determined that political questions do not arise when contractors have discretion in executing their tasks. They argue that claims regarding a contractor's compliance with contractual duties do not invoke political questions and specifically challenge KBR’s decisions. Plaintiffs assert that KBR operated burn pits without military authorization and violated performance standards even when authorized. They contend that it is illogical for the military to have exercised control over KBR while KBR was allegedly violating military directives.
KBR's operations were governed by performance-based LOGCAP contracts, granting KBR authority over task execution and supervisory control over its employees. Plaintiffs dispute KBR's claim that performance standards equate to military control, stating such standards merely outline required performance levels. They present evidence indicating KBR maintained operational control, contradicting the notion of direct military oversight and asserting that the contracts were managed through established federal regulations.
Regarding the first Taylor factor, Plaintiffs argue that KBR’s role as a force multiplier, intended to relieve military burdens, contradicts any claims of military control. On the second factor, they assert that KBR's defense of contributory negligence is irrelevant to jurisdictional discovery and does not pertain to military decisions, differentiating this case from Taylor. They claim that assessing their claims will not involve second-guessing military decisions, as the contractual documents provide the standard of care. Plaintiffs refute KBR's argument that litigation would impose a significant burden on the military, asserting that discovery will focus on KBR's performance, which falls within KBR’s knowledge. They conclude by stating that their claims align with the principle established in Al Shimari, emphasizing that contractor compliance with contractual duties does not raise political questions.
KBR’s preemption argument was challenged by Plaintiffs, who asserted that their case aligns more closely with the Harris decision, where the court ruled that the suit wasn't preempted due to KBR's considerable discretion in fulfilling its contractual duties. In contrast, the Saleh case involved contractor employees operating under military command. Plaintiffs contended that LOGCAP contracts represent performance-based service contracts, which the D.C. and Third Circuits have indicated should not be preempted under Saleh. They argued that KBR employees were neither supervised nor commanded by the military, indicating they were not part of the military chain of command. Furthermore, Plaintiffs claimed their allegations do not arise from military commands, thus cannot be preempted legally.
The evidentiary hearing held on March 9-10 and 13, 2017, was extensive, involving live witnesses, deposition testimonies, and documents presented by both KBR and the Plaintiffs. Due to the complexity of the issues, a detailed summary of all evidence was impractical, so the court focused on critical evidence.
Among the key testimonies was that of Lieutenant General (Ret.) Ricardo Sanchez, who explained that upon his arrival in Iraq in 2003, the military mandated the use of burn pits for waste disposal at forward operating bases. He outlined that the decision to use burn pits was based on considerations of health, environmental security, and operational realities, deeming burning or burying waste as the only feasible options. General Sanchez emphasized that effective waste management was crucial for preserving the military's operational readiness, with KBR providing essential support as contracted. He stated that the military issued orders to KBR to utilize burn pits for waste disposal during the occupation.
The military opted to burn plastic water bottles due to the wartime environment, concluding that transporting empty bottles posed significant security risks. General Sanchez characterized KBR’s contributions as essential to military readiness, indicating that while he did not control contractor actions directly, he would intervene if KBR failed to meet established priorities, as this could impact battlefield success. He emphasized the necessity of coordination between military and KBR operations, noting that KBR could not unilaterally decide on logistics without military integration.
Lieutenant General (Ret.) John Vines testified about KBR's critical role within the Multi-National Corps—Iraq (MNC-I), asserting that the military could not achieve its missions without KBR’s services. Vines described KBR as integrated into the command structure, and while DCMA did not have the authority to alter requests for KBR's services, they could not modify requirements without military concurrence. He acknowledged that burn pits were already in operation when he assumed command and that standing orders regarding their use remained effective until revoked. Vines noted that alternatives to burn pits, like recycling, were often impractical in combat zones due to security concerns and logistical challenges. He clarified that neither KBR nor DCMA could use incinerators without his approval, as all materials entering the country required logistical support and careful consideration of their implications.
The document outlines testimony regarding logistical operations and waste management practices in military bases in Iraq, primarily focusing on KBR's role and the authority of military leadership. General Vines stated that the base commander held ultimate responsibility for the location of facilities, and KBR lacked the authority to make siting decisions due to various considerations that only the commander could evaluate. He also acknowledged that hazardous materials should not be placed in burn pits and that he had not seen documentation granting KBR permission to operate such pits.
Michael Mayo, a former KBR executive, testified about his extensive roles within KBR and emphasized that military leadership dictated waste management methods, limiting KBR's discretion on issues like burn pits, incinerators, or landfills. He confirmed that the military controlled the locations of burn pits and that KBR was reliant on military funding and direction for these operations.
DCMA Commander Matthew Hersch provided insights from his inspections at Camp Bucea, where he followed a specific checklist to assess burn pits for hazardous materials and unexploded ordnance. His inspections required military escort, and he reported no unauthorized contractor activities during his tenure.
Roger Singleton, a current KBR employee, shared his managerial experience over various bases in Iraq and Afghanistan, noting his promotion and responsibilities at multiple locations, thereby underscoring the continuity of military oversight in operations across these facilities.
Mr. Singleton secured a security clearance in 2004 due to his significant involvement in base camp planning in Afghanistan and Iraq, collaborating with the Military J-7 for base expansions. He participated in weekly formal meetings with the joint task force at command offices in Bagram and Kandahar to discuss operational changes and requirements. Singleton highlighted that the military was aware of KBR's operation of burn pits through planning sessions and task orders issued before KBR's involvement. He stated that the decision to introduce incinerators would necessitate U.S. Government direction and funding. The military, through the Defense Contract Management Agency (DCMA), monitored KBR's performance at the bases.
Singleton noted that KBR operated under task orders for waste management without explicit instructions to use burn pits, as waste disposal methods were determined by military command. Dr. R. Craig Postlewaite, former Acting Director of Force Health Protection and Readiness Programs, testified that the base commander was responsible for waste disposal methods in contingency operations, considering various factors and balancing risks. He indicated that the continued use of burn pits was a policy decision by military commanders, who deemed the exposure to burn pit smoke less risky than alternative waste disposal methods. Postlewaite mentioned that the military was required to develop comprehensive health programs and conducted extensive environmental sampling at bases in Iraq and Afghanistan to assess air, soil, and water quality.
In contrast, the plaintiffs argued that KBR was not under operational military command but was instead governed solely by contractual controls, emphasizing that the case revolves around the terms and conditions of the contract as implemented in the field by the contracting arm.
Plaintiffs contended that, although military personnel influence contract content, ultimate binding decisions are made solely by the contracting authority. They cited Lieutenant Colonel Damon Walsh, DCMA Commander in Iraq, who stated it was inappropriate for non-acquisition officials, like General Sanchez, to directly instruct contractors. Walsh affirmed that the military is responsible for determining waste disposal methods and that procurement decisions, such as approving incinerators, are government responsibilities, not KBR's. He emphasized the necessity for military oversight of KBR to ensure compliance with contractual terms and stated that during military operations, total control over bases is maintained by the military. Walsh noted that while he hadn't seen written authorization for KBR to use burn pits, he indicated that such authorization was not typically required based on his military experience. He described the daily oversight by contracting officers and technical representatives who monitored KBR's performance, including waste management. Plaintiffs also introduced the deposition of James Loehrl, Division Chief for LOGCAP III, who concurred that General Sanchez lacked authority to directly order KBR employees and testified that he had no knowledge of KBR operating burn pits without authorization.
KBR was unable to independently purchase and install incinerators due to restrictions on available funds, which were limited to operation and maintenance, and lacked the authority to make capital expenditures. While KBR was not a part of the military, it had to integrate with military operations to ensure coordinated efforts. A document titled "Contractors on the Battlefield" from January 2003 clarified that the contract's terms defined the relationship between the military and contractors, emphasizing that contractors supervise their employees directly and that contractor management is conducted through the responsible contracting organization rather than through military command.
Plaintiffs highlighted the LOGCAP III contract, noting that it granted KBR exclusive supervisory authority over its employees and required compliance with environmental laws. They pointed to Task Order 59, which specified waste management and mandated the use of contractor-acquired incinerators for solid waste disposal, including medical waste, while emphasizing compliance with U.S. laws and the Overseas Environmental Baseline Guidance Document, which disallowed regular surface burning for waste disposal. Furthermore, Task Order 59 placed responsibility for employee and base camp resident safety on the contractor, aligning with Army and OSHA regulations. Lastly, Task Order 89 indicated that burn pits should only be used as a last resort and with measures to minimize environmental impact.
Paragraph 8.9.2.1 of the Task Order explicitly states that it is “not intended for the disposal of hazardous waste.” Task Order 89, similar to Task Order 59, mandates the contractor's compliance with the OEBGD and MNC-I Standard Operating Procedures (SOP). The MNC-I SOP advises against burn pits, allowing their use only as a last resort authorized by the base camp commander. The plaintiffs highlighted various performance standards within the MNC-I SOP that govern the operation of burn pits and restrict what materials can be burned. Task Order 139 identifies surface burning as the “least preferred method” for managing non-hazardous solid waste. Additional provisions emphasize the contractor's responsibilities for worksite safety, the necessity for written documentation of any changes to the scope of work, and clarify that the contractor holds full operational control for the specified services.
A letter dated December 4, 2008, from General David H. Petraeus to Senator Russell D. Feingold, acknowledges the ongoing need for burn pits during contingency operations, detailing efforts to minimize exposure and improve operational procedures. Plaintiffs' counsel suggested that the General was referencing military-run burn pits. Further, an April 2010 letter from James Loehrl to KBR's Vice President of Operations stated that the Army views operating burn pits in accordance with contractual and SOP guidelines as an acceptable waste disposal method in a contingency environment.
The first live witness, Kevin Robbins, a former KBR employee involved in burn pit operations at Camp Delta and Camp Echo, testified about his limited experience and lack of direct military supervision during operations. Although Robbins indicated awareness of potential issues with burning certain items, he could not confirm if operations violated contractual obligations. His testimony was viewed as less credible compared to other witnesses, and his bias was noted as he had a vested interest in the case's outcome. The plaintiffs also included deposition testimony from David Palmer, KBR’s theater contracts manager, focusing on specific relevant excerpts.
KBR maintains that it never received written authorization to burn various materials, including paint and chemicals. Mr. Palmer testified that all land on forward operating bases was controlled by the mayor's cell, emphasizing their strict oversight. He asserted that KBR could not have operated burn pits without military knowledge due to the oversight of funding and quality assurance processes. Plaintiffs disputed KBR's claim that military directed the use of burn pits, arguing that the military witnesses relied upon by KBR lacked knowledge of KBR’s contract specifics regarding waste management. The plaintiffs referenced contract documents and asserted that KBR operated under a "what, not how" contract, necessitating compliance with TB MED 577, which provides detailed guidelines for sanitation and water supply management in military operations. Additionally, testimony from DCMA Administrative Contract Officer Augusta Fehn highlighted that KBR was essential for base operations, although not formally integrated into military command structures. Fehn noted that all actions taken by her were documented, and while KBR was not part of the military chain of command, they were considered part of the operational team. The plaintiffs also mentioned Brad Lockhart, a KBR vector and plaintiff, as a witness regarding KBR’s operations at FOB Marez.
Brad Lockhart testified about the oversight of burn pits by the Defense Contract Management Agency (DCMA), noting that he was frequently present in the DCMA office adjacent to the HSE office, facilitating direct communication regarding issues. The base commander had the authority to determine the locations of burn pits, based on military security considerations. General Kirk Vollmecke emphasized the importance of distinguishing between command authority and contract authority for military operations.
Additionally, during the remand, substantial evidence was submitted, including a 2010 Department of Defense report which justified the use of open-air burn pits as a necessary method for waste reduction during military operations, while also outlining the risks involved and specifying prohibited materials for burning.
Mary Wade, a Senior Contracts Manager at KBR, clarified the process for initiating services under the LOGCAP III contract, which involved discussions between the Army and KBR to develop a Statement of Work (SOW) and subsequent task orders based on approved estimates and funding. Colonel Walsh explained that Army Materiel Command in Iraq was responsible for translating military needs into contractual terms for task orders, while the DCMA and AMC outlined the performance methods KBR was authorized to use. KBR also provided Letters of Technical Direction (LOTDs) that demonstrated military involvement in critical operational decisions, such as the establishment and management of burn pits.
KBR was directed to increase the frequency of waste burning and to add another burn pit near the existing one at FOB Summerall, with operational hours changed from 24 hours to 8:00 AM to 6:00 PM. The Defense Contract Management Agency (DCMA) conducted real-time inspections of KBR’s waste management and burn pit services to ensure compliance with the LOGCAP III Contract and Task Orders, using these inspections to influence KBR's performance. Ratings of KBR’s services were based on DCMA’s monitoring and established criteria. Witness declarations indicated that the military controlled what could be burned in the pits, specifying that only items not explicitly prohibited could be incinerated. For example, a memorandum stated animal carcasses should be burned to ash. Additionally, a former KBR employee testified that KBR did not receive directives for burning certain hazardous materials, although burning of plastic water bottles was included in original directives. Evidence also indicated that the military provided detailed instructions for KBR’s water treatment services, requiring specific actions such as drilling water wells and managing water transport logistics.
KBR is directed to operate water wells at a tower site for up to 8 hours, as outlined in the Statement of Work (SOW) which specifies potable water supply, the use of Reverse Osmosis Water Purification Units, and performance standards for these tasks. Military oversight over KBR’s water treatment activities is confirmed by declarations from Major Sueann Ramsey and Major Tara Hall. Major Ramsey, who served as Chief of Preventive Medicine for MNC-I, stated that technical medical bulletins established standards and testing methodologies for potable and non-potable water services, while MNC-I policies provided detailed specifications for military and contractor personnel authorized to deliver these services in Iraq. Major Hall confirmed that Army Preventive Medicine oversaw water operations, ensuring the safety and effectiveness of water production and treatment.
The SOW indicates that contractors are responsible for providing, installing, operating, and maintaining water systems, and must comply with specific production standards. Plaintiffs argue that the LOGCAP contracts outline only "what" is required, not "how" tasks should be executed, supported by various documents stating that contractors define their own methods to achieve the required outcomes. However, evidence suggests that the military's directives included extensive instructions on executing waste management and water supply tasks. Additionally, while KBR is not part of the formal military chain of command, they are still expected to follow military instructions as per Army regulations.
Contractor employees, such as those from KBR, operate independently of direct military supervision but must comply with guidance from military leadership, particularly the Theater Commander. Witness testimonies highlight KBR's integration into military operations as essential for achieving mission objectives. The court emphasizes that it cannot limit its analysis to selective contract portions but must consider the broader context, including specific operational documents and actual wartime experiences. The court finds that the military maintained ultimate control over KBR’s operations, specifically regarding waste disposal methods like burn pits, which were mandated by military commands based on local conditions and operational needs. Evidence indicates that the military, after assessing risks and alternatives, chose to exclusively use burn pits for waste disposal at forward operating bases in Iraq and Afghanistan. Overall, the court concludes that the military made all key decisions related to KBR’s services, solidifying KBR's role within the military chain of command despite contractual language suggesting otherwise.
Base commanders are required to evaluate numerous factors and balance risks when deciding on waste disposal methods, which is integral to their roles. General Petraeus acknowledged the ongoing necessity of burn pits during contingency operations, while James Loehrl indicated that the Army views operating burn pits per contractual obligations as a suitable waste disposal method in such environments. The military's continued use of burn pits, despite potential health risks, reflects a policy choice by military leaders who deemed the exposure to burn pit smoke less hazardous than alternatives like transporting waste outside of secure base areas.
Testimony from Dr. R. Craig Postlewaite confirmed that military commanders are responsible for making risk-related decisions. The Court found no credible evidence that KBR independently decided to use burn pits at any Forward Operating Base (FOB) in Iraq or Afghanistan. The plaintiffs attempted to challenge the credibility of military and KBR testimonies, arguing that the absence of documented authorization for KBR's use of burn pits implied unilateral decision-making by KBR. However, the Court determined that the decision to utilize burn pits was solely made by military personnel, despite the task orders not always explicitly detailing this.
The Court also noted that combat commanders were not responsible for contract documentation, a task designated to contracting officers, which explains any lack of personal knowledge regarding the contracts. Ultimately, the Court found KBR's witnesses credible and concluded that the military authorized the use of burn pits for waste disposal in all instances, countering plaintiffs' claims of unauthorized operations. The evidence suggested that KBR's burn pit operations were consistently sanctioned by military authorities, contradicting allegations that KBR managed waste improperly or without military knowledge.
Hersch's testimony indicates that, during his tenure as a DCMA officer at Camp Bucea, he never witnessed unauthorized contractor work regarding burn pits. Walsh corroborated this by stating that no authorization was necessary for using burn pits, as garbage was simply burned. LTG John Vines emphasized that failing to take corrective action when observing activities equates to de facto authorization. The court concluded that the military's decision to use burn pits for waste disposal negates claims that KBR operated them without authorization.
The military retained exclusive control over the siting of burn pits on Forward Operating Bases (FOBs) in Iraq and Afghanistan. Plaintiffs alleged that KBR improperly located burn pits too close to military operations and disregarded wind conditions, claiming KBR breached its duties by not minimizing health risks. However, evidence showed that the military alone dictated the locations of all facilities, including burn pits, with the base commander responsible for those decisions. Testimonies confirmed that the military had total control over base operations, including the placement of burn pits, and KBR could not unilaterally change their locations. While KBR could suggest locations, the military made the final decisions based on security and operational concerns. Ultimately, the evidence demonstrated that the military controlled both the siting and operation of the burn pits, countering the Plaintiffs' challenges.
Plaintiffs accused KBR of making unsubstantiated daily operational decisions regarding burn pits, including the choice of materials to be burned and operational hours. However, KBR presented military documentation, including multiple Letters of Task Directive (LOTDs) and memoranda, that outlined specific instructions for burning various waste types, such as animal carcasses and dining facility trash. The military dictated the operational parameters, such as the frequency and type of waste incinerated, and determined that burning was the only viable waste disposal method due to logistical challenges. Testimonies confirmed that KBR acted under military direction and that hazardous materials were to be segregated for alternative disposal methods, reinforcing that KBR adhered to military standards and directives regarding waste management.
The military retained control over the operation of burn pits, directing KBR in their management. Allegations that KBR failed to implement incinerators or recycling to reduce waste are dismissed as unfounded. The military evaluated alternatives to burn pits but deemed them unfeasible due to the hazardous conditions of the environment. Testimony indicated that KBR could not independently decide to use incinerators or landfills without military approval and funding. All decisions regarding waste disposal methods were ultimately made by the military, reflecting their assessment of the situation. Furthermore, the operational military command established the requirements for KBR's services, which were executed under the oversight of the Defense Contract Management Agency (DCMA). DCMA lacked the authority to alter the operational requirements set by military command, emphasizing that KBR's actions were dictated by military needs and risk assessments in a wartime context.
Program managers, site managers, the Mayor’s Cell, and the base commander collaborated on the statements of work, which dictated the execution of task orders by Rock Island. Task orders for Iraq were developed with input from on-ground personnel rather than solely by remote coordinators. The Defense Contract Management Agency (DCMA) played a critical role in converting the deployed commander’s requirements into logistical support, and after contracts were established, DCMA staff frequently interacted with KBR employees to oversee compliance with military needs. Continuous oversight was maintained through daily interactions, inspections, and monitoring of KBR's performance, particularly regarding waste management.
The military retained significant oversight over KBR's water service provisions in Iraq and Afghanistan, issuing detailed directives on service delivery, which included specifications for military and contractor personnel. Army Preventive Medicine oversaw water operations, ensuring the safety and effectiveness of water purification processes, including the certification of Reverse Osmosis Water Purification Units. The contracts with KBR detailed not only the provision of water but also the specific methodologies for its treatment, emphasizing compliance with established performance standards.
KBR was tasked with increasing water production by drilling three water wells and providing various water services, as indicated by several directives (LOTDS). Evidence suggests that KBR had some responsibility for testing and ensuring the quality of the water delivered, although military personnel from Preventive Medicine were ultimately responsible for assessing water quality and conducting ongoing surveillance to meet military standards. KBR, while integrated into the military's operational framework, was classified as an independent contractor, meaning military commanders could not issue direct orders to KBR employees. Despite this lack of direct command authority, the military retained significant oversight and control over KBR's operations. Military directives required KBR to comply with operational protocols, indicating that KBR could not make independent decisions without military coordination.
KBR was integrated into the military command structure, working alongside military personnel and operating under military command, which enabled the military to maintain control over the logistics supporting its operations. Multiple testimonies confirmed that KBR's services were essential to military missions, with General Sanchez emphasizing their absolute necessity. Under LOGCAP III, KBR took over core military functions that had previously been managed by the military alone, significantly impacting the morale, welfare, and readiness of combat forces. General Vines noted that the military could only sustain its operations for about thirty days without KBR's support, after which it would struggle to maintain necessary services. KBR operated in direct support of military operations, following orders from military commanders, including directives on waste disposal methods. Furthermore, the military communicated service requirements through the Defense Contract Management Agency (DCMA) to KBR.
The document also addresses the political question doctrine, which asserts that certain issues are nonjusticiable due to the separation of powers, primarily concerning military decisions that fall under the executive branch's authority. The determination of whether a case involves a political question is jurisdictional, requiring a careful examination of the specific facts, with the onus on plaintiffs to demonstrate that subject matter jurisdiction exists.
The excerpt discusses the application of the political question doctrine to government contractors, highlighting that existing case law does not directly address the unique circumstances of the present case, which involves extensive allegations of tortious conduct by a contractor across multiple war theaters over a long period. Notably, the Eleventh Circuit case of *Carmichael v. Kellogg, Brown, Root Services, Inc.*, is examined. In this case, a KBR-operated convoy in Iraq, led by a military commander, resulted in severe injuries to Sergeant Carmichael due to alleged negligence by a KBR employee. The Eleventh Circuit ruled that the suit was barred by the political question doctrine, emphasizing that adjudicating the case would necessitate reevaluating sensitive military judgments made during wartime. The court highlighted that military decisions governed all aspects of the convoy, including the use of civilian contractors for fuel transportation and the execution of the mission. The court found it impossible to assess KBR's negligence without scrutinizing these military judgments, rejecting arguments that KBR had control over the convoy and asserting that KBR was subject to military authority and regulations.
The court found that an employee's physical control over a tanker did not absolve him from operating under military orders, which would be cited by KBR as a defense against negligence due to a failure to reduce speed. Carmichael's claim of solo negligence by the KBR employee was rejected, as the court determined she had not demonstrated that he was solely responsible for the accident; even assuming some fault, he was not the only party to blame.
In the case of Taylor v. Kellogg, Brown, Root Services, Inc., a Marine was electrocuted when a KBR employee disregarded safety instructions regarding a generator. KBR argued the case presented a nonjusticiable political question. The Fourth Circuit ruled that KBR was largely insulated from military control, making it responsible for the safety of camp operations. However, any evaluation of KBR’s contributory negligence would require judicial assessment of military actions, which fell outside judicial review due to the political question doctrine.
In Harris v. Kellogg, Brown, Root Services, Inc., a Staff Sergeant was electrocuted in his barracks, leading to a lawsuit against KBR for negligent maintenance. The Third Circuit held that the military’s lack of direct control allowed KBR discretion in fulfilling its contracts, thus avoiding unreviewable military decisions. The court concluded that KBR's obligations were governed by the contracts, focusing on whether KBR met its contractual duties.
The court determined that the plaintiffs' liability theories did not involve political questions, allowing for an interpretative resolution without second-guessing military decisions. The case was remanded to establish which state's law applied, as this would influence the evaluation of KBR's defenses and potential questioning of strategic military decisions. In the Fourth Circuit case of Al Shimari v. CACI Premier Technology, Iraqi nationals alleged abuse while detained at Abu Ghraib, suing CACI for conspiratorial conduct with military officials. The district court dismissed the claims as non-justiciable political questions, citing military control over interrogation and the need to avoid sensitive military judgments. However, the Fourth Circuit vacated this decision, emphasizing the need to assess actual military control over CACI's conduct, asserting that unlawful actions by CACI employees are justiciable regardless of military oversight. The court concluded that if CACI's actions were lawful and under direct military control, they would be protected from judicial review under the political question doctrine. The evidence indicated that KBR's operations, including burn pits and water treatment services, were conducted under military control, leading to the dismissal of plaintiffs' claims as non-justiciable political questions. The court referenced the Eleventh Circuit’s Carmichael decision to evaluate the military's control over KBR in relation to the political question doctrine.
The Court concludes that the military's oversight of KBR's burn pit and water treatment operations equated to its control over the convoy in the Carmichael case. Evidence shows that military decisions governed all significant aspects of KBR's waste management activities, paralleling the Eleventh Circuit's findings that the military's strategy included using civilian contractors in Iraq. The military's regulations clearly indicate that KBR was accountable to military commands, undermining any claims of KBR exercising substantial control over its operations. An exhibit from the plaintiffs mirrors the language cited in Carmichael, confirming that while contractor employees were not under direct military supervision, they were still expected to comply with military directives. The Eleventh Circuit previously dismissed arguments similar to those presented by the plaintiffs, asserting that KBR's management merely acted as a conduit for military orders, regardless of whether direct commands were issued to KBR. Consequently, the claim that KBR had authority over its operations is irrelevant, as the record demonstrates that military control over KBR in Iraq and Afghanistan was thorough and executed through both military commanders and the Defense Contract Management Agency (DCMA).
The Court rejects the Plaintiffs' request to prioritize form over substance by selectively interpreting contract documents to argue that KBR retained control over burn pit operations. It emphasizes that KBR operated under military directives, which dictated the use, location, and operational details of the burn pits. The Court cites precedents indicating that while KBR may have had physical control, the military made all critical decisions regarding burn pits based on a comprehensive risk assessment related to wartime conditions. The claims made by the Plaintiffs are viewed as challenges to military decisions, such as the decision to use burn pits, rather than mere contract violations, distinguishing this case from Harris, where the court found that KBR's contractual duties could be assessed without questioning military choices. The military's involvement in contract directives and operational decisions is highlighted, noting that these were not merely general guidelines but specific instructions that required KBR to follow military orders closely. This case is also distinguished from Taylor, where KBR was deemed not under military control regarding generator maintenance. Overall, the Court concludes that evaluating the Plaintiffs' claims would necessitate second-guessing military decisions, rendering the case non-justiciable.
KBR was not insulated from direct military control regarding critical decisions related to the safety of camp residents. The military conducted risk assessments on the use of burn pits, deciding to continue their operation despite known health risks, as evidenced by communication from General Petraeus indicating the necessity of burn pits during contingency operations. While KBR may have had some operational control over waste and water treatment, the military ultimately made key policy and operational decisions and maintained actual control over KBR's performance. Therefore, the plaintiffs' claims challenge military policy decisions rather than specific actions by KBR, which cannot be assessed without scrutinizing military judgments.
Additionally, the “national defense interests” factor also supports dismissal. The court must evaluate how intertwined national defense interests were with the military's decisions regarding KBR. In this case, national defense considerations were central to military decisions impacting KBR's waste and water management activities, as KBR's services were crucial for operational readiness. The military's control over KBR was essential to ensure success in operations, influenced by factors like operational tempo, security, troop welfare, and the broader implications of waste management on logistics.
Cost and operational impacts are critical factors in decisions regarding waste management methods, such as the transition from burn pits to incinerators. Testimony indicates that neither the Defense Contract Management Agency (DCMA) nor KBR could unilaterally make this switch due to the requirement for military support and the associated logistical side effects. Waste management is essential for maintaining operational readiness and combat effectiveness. The claims against KBR would require the court to examine sensitive military judgments, which fall under national defense interests, making them nonjusticiable political questions. Plaintiffs assert they are only challenging KBR's decisions and contract violations; however, this does not alter the court's analysis. The claims necessitate a review of military decisions rather than KBR's actions, as evidence shows that the military was responsible for the decisions being challenged. Even if KBR had made some decisions, the justiciability of the claims would not automatically follow. Previous rulings indicate that alleging negligence does not exempt claims from involving military judgments.
The Eleventh Circuit found that the plaintiff failed to demonstrate that a KBR employee was solely responsible for the alleged wrongs, indicating that other military decisions could also be relevant. The court rejected the notion that claims against KBR, which were based solely on contractual obligations, could be adjudicated without implicating military decisions. The court noted an implicit rejection of this argument in the Fourth Circuit's Taylor case, which identified the presence of a political question even assuming a KBR employee acted against military direction. Although the plaintiff cited Al Shimari, which allowed for claims against contractors engaged in unlawful conduct, the court clarified that Al Shimari's claims related to torture and war crimes, which were grounded in violations of international law. Here, KBR’s actions related to waste management and water supply did not violate criminal law or international standards and occurred under military control, thus falling within the political question doctrine. The court conducted a thorough review of all relevant contract documents and evidence, concluding that the actions in question were lawful at the time and involved sensitive military judgments, warranting dismissal under the political question doctrine. Additionally, KBR asserted a summary judgment based on the FTCA’s “combatant activities” exception, placing the burden to conclusively establish this defense on KBR, after which the burden would shift to the plaintiffs to demonstrate genuine issues for trial.
The “combatant activities” exception to the Federal Tort Claims Act (FTCA) protects the United States from claims related to military combat activities during war, as outlined in 28 U.S.C. § 2680(j). The Fourth Circuit and other circuit courts have determined that this federal interest can preempt tort suits against government contractors when their activities are deemed combat-related, as seen in cases such as *Harris* and *Saleh*. In *Saleh*, Iraqi nationals sued private military contractors for alleged abuse at Abu Ghraib, but the D.C. Circuit ruled that their tort claims were preempted by the FTCA's exception, arguing that tort law conflicts with warfare and that the federal government holds exclusive authority in this domain. The court emphasized that allowing such suits could disrupt military operations by inviting litigation that diverts focus to government wartime policies and reduces contractor willingness to engage in combat situations. It clarified that a contractor does not need to have exclusive operational control for claims to be preempted, referencing *Boyle v. United Technologies Corp.*, which underscores that decisions made by government officials are protected from preemption claims. The D.C. Circuit established a test for preemption: if a contractor is integrated into military combat activities under military command, tort claims related to that engagement will be preempted. However, it acknowledged that there may be situations where a contractor's services could be viewed as distinct from combat activities, particularly if they are defined by a performance-based statement of work that focuses solely on outcomes rather than methods or hours of work.
The military lacks command authority and operational control over contractors at a military base, which means tort lawsuits against such contractors are not preempted. The Third Circuit's decision in Harris adopted the Saleh test to assess preemption of state tort claims against contractors involved in combatant activities. In Harris, the court found that while maintenance of electrical systems by KBR in a war zone qualified as combatant activities, there was no command authority retained by the military, as KBR had discretion in executing its contractual obligations. Claims related to contractors' contractual breaches are not preempted because they arise independently of military conduct, thus allowing state regulation.
In contrast to Harris, where a contractor's negligence led to a single incident of electrocution, the current situation involves broader claims against KBR's actions over a decade, directed by the military in two war zones. The Fourth Circuit in Burn Pit III noted that government contractors do not need to be combatants for preemption to apply, as long as they are integrated into combatant activities. The court determined that KBR's activities were combatant-related but required further analysis of KBR's integration into the military chain of command. After reviewing substantial evidence, the court concluded that KBR was indeed highly integrated into military operations, leading to the preemption of plaintiffs' claims, even if they are not classified as nonjusticiable political questions.
The D.C. Circuit in *Saleh* emphasized the importance of examining the actual integration between military operations and contractor employees rather than focusing solely on contract terms. The court found substantial evidence of KBR’s deep integration into military missions, with testimonies highlighting KBR's role as essential for military operations in Iraq and Afghanistan. Witnesses, including military generals, attested to KBR being integral to the military's readiness and operational capacity, with the military directly influencing KBR's decisions and operations. The testimony indicated that KBR was not only embedded within the military structure but also required to comply with military directives, indicating a high level of control over KBR's activities. Plaintiffs argued against preemption of their claims based on the nature of KBR's contracts, asserting that the military's oversight was limited to desired outcomes. However, KBR countered with evidence demonstrating that military direction extended to both the "what" and the "how" of its operations, suggesting significant military control over KBR's performance.
The military had significant control over KBR regarding the operation of burn pits and water treatment services, including decisions on the use, location, and monitoring of burn pits. Plaintiffs contend that the military's instructions did not exclusively define the operational methods for KBR, which managed its employees independently. They reference the Saleh test, which evaluates whether contractor employees are effectively functioning as military personnel. The district court previously determined that Titan Corp. employees acted as soldiers, while CACI International Inc. was deemed to have a dual command structure due to its ability to influence operations. However, the D.C. Circuit later reversed the ruling on CACI, asserting that exclusive military control was not necessary for preemption of claims against contractors, as significant federal interests are at stake even with limited contractor influence. Consequently, claims against KBR would also be preempted since their activities were directed by military commands and KBR was fully integrated into military operations. The plaintiffs' argument that KBR's lack of formal military command involvement is irrelevant, as military contractors are not part of the military chain of command. The court found the situation more comparable to Saleh than to Harris, rejecting the plaintiffs' position.
The Third Circuit in Harris determined that the military lacked command authority over KBR’s work on pump installation and maintenance due to the contracts providing KBR with significant discretion in fulfilling general requirements. In contrast, the current case involves the military making all critical decisions regarding KBR’s waste and water treatment services, with no discretion granted to KBR. The claims here are fundamentally rooted in military decisions, differing markedly from the isolated incidents in Harris, which involved a single negligent act leading to a servicemember's electrocution. Additionally, the claims do not fall within the narrow exception to preemption established in Saleh, which allows for contractor accountability in discrete service contexts. Unlike Saleh, KBR’s operations were not performed in isolation; rather, they were fully integrated into the military command structure and carried out under direct military orders. Consequently, the plaintiffs' challenges arise from actions that were intrinsically linked to military commands and decisions, affirming that state regulation in this context does not interfere with military conduct as intended by preemption principles.
Plaintiffs’ claims are preempted under the Federal Tort Claims Act (FTCA) due to the “combatant activities” exception, resulting in the court granting KBR summary judgment. While acknowledging the harm suffered by many Plaintiffs, particularly those who served in the military, the court notes that these individuals have access to significant remedies under the Defense Base Act and the War Hazards Compensation Act. Recent bipartisan legislation, the Helping Veterans Exposed to Burn Pits Act, has also been introduced to provide further remedies for those affected by burn pits.
The court highlights that the case law relevant to the current situation does not perfectly align with the Plaintiffs' broad claims, which span a decade and involve general allegations about burn pits and water usage in Iraq and Afghanistan, rather than specific incidents. The existing precedents involve discrete circumstances and specific injuries, unlike the sweeping claims made by the Plaintiffs. The allegations lack specificity regarding time, date, or place, and the decision to use burn pits was a military one, not made by KBR. The court will grant the Defendants’ Motion to Dismiss, deny the Defendants’ Motion to Strike the Plaintiffs’ declarations, and instruct that all complaints be dismissed.
Defendants were granted derivative sovereign immunity, which is not currently under consideration by the Court as per the Second Amended Case Management Order. The question of whether KBR breached its LOGCAP III contract and its associated derivative immunity defense falls outside the jurisdictional discovery scope. The Supreme Court case Baker v. Carr identified six factors for determining political questions, emphasizing constitutional commitments, lack of judicial standards, policy determinations for nonjudicial discretion, respect for government branches, adherence to political decisions, and risks of conflicting pronouncements. The Fourth Circuit has also examined KBR's claim for derivative immunity under the FTCA’s discretionary function exception, but this defense will not be adjudicated per the Court's Case Management Order. During his testimony, LTG Vines noted that recycling was a combat operation, which the military lacked resources for, highlighting that the DCMA, not military commanders, is responsible for contractor documentation. KBR moved to strike a significant number of declarations submitted by Plaintiffs, arguing they were inadmissible and objectionable. Although the Court found these declarations unhelpful for its current jurisdictional analysis, it denied KBR’s motion to strike and for sanctions against Plaintiffs' counsel.
