Court: District Court, S.D. Texas; December 3, 2012; Federal District Court
The Court, presided over by Judge Vanessa D. Gilmore, reviewed the KBR Defendants’ Motion to Dismiss the Plaintiffs’ Seventh Amended Complaint, filed on March 30, 2012. On August 16, 2012, the Court denied this motion but issued a revised order to clarify the legal standards applied in the dismissal. The Plaintiffs, who are soldiers from the Indiana and West Virginia National Guards and the British Royal Air Force, claim injuries from exposure to sodium dichromate at the Quarmat Ali water treatment plant in Iraq, where they provided military protection during the U.S. government’s Project Restore Iraqi Oil (RIO).
The Defendants include the Halliburton Defendants (Halliburton Company and its subsidiaries) and the KBR Defendants (KBR, Inc., and its subsidiaries). In 2003, Halliburton Co. was the parent company of KBR and its subsidiaries, but they later separated. The sodium dichromate in question is known to be an irritant and a carcinogen. Plaintiffs allege that KBR and Halliburton disregarded the dangers of site contamination, leading to health issues such as bloody noses, respiratory problems, and other symptoms. When these health complaints were raised, KBR and Halliburton attributed the symptoms to dry desert air and allergies, despite knowing that onsite blood tests indicated elevated chromium levels among exposed civilians. The Plaintiffs argue negligence, gross negligence, fraud, and intentional infliction of emotional distress in their claims against the Defendants.
Plaintiffs, alleging illnesses linked to sodium dichromate exposure post-Iraq, including respiratory tumors and other health issues, have seen two deaths among their ranks. KBR filed a motion to dismiss the seventh amended complaint on April 6, 2012, supported by Halliburton, citing the political question doctrine and the combatant activities exception of the Federal Tort Claims Act (FTCA) as grounds for dismissal. Plaintiffs responded on April 24, 2012, with KBR replying on May 14, 2012. KBR later submitted additional authority and a supplement on July 17, 2012.
For a case to be dismissed for lack of subject matter jurisdiction, a court must lack power to adjudicate, which can occur under Rule 12(b)(1) for one of three reasons: solely from the complaint, supplemented by undisputed facts, or through the court's resolution of disputed facts. The burden of proof for establishing jurisdiction lies with the party asserting it, while uncontroverted facts in the complaint must be accepted as true, and the complaint should be construed broadly. Jurisdictional challenges should be addressed before merit-based challenges to prevent premature dismissals. A dismissal for lack of jurisdiction does not affect the merits of the case or prevent the plaintiff from pursuing claims in a court with proper jurisdiction.
Under Rule 8, a complaint must provide a clear and concise statement of the claim, exceeding mere accusations or formulaic recitations of legal elements. Complaints lacking factual enhancement or specificity do not meet the pleading standards.
A complaint that fails to meet the pleading standards of Rule 8 can be dismissed under Rule 12(b)(6) for not stating a claim upon which relief can be granted. To survive a motion to dismiss, a complaint must present factual allegations that, if assumed true, raise a right to relief above a speculative level. A claim is plausible on its face if it allows the court to reasonably infer the defendant's liability for the alleged misconduct. A claim is implausible if the well-pleaded facts only suggest a mere possibility of misconduct, rather than a plausible entitlement to relief. Dismissal can occur if the complaint lacks a cognizable legal theory or fails to provide sufficient facts under an existing legal theory. When evaluating a 12(b)(6) motion, the court can consider the complaint, its attachments, and judicially noticeable documents, but it does not resolve disputed facts and assumes all well-pleaded facts are true, excluding conclusory allegations or unwarranted inferences. Specific factual pleading is required to avoid dismissal, though motions to dismiss are disfavored and seldom granted.
The Court generally allows plaintiffs at least one opportunity to correct pleading deficiencies prior to dismissal, except in cases of incurable defects or when plaintiffs indicate an unwillingness to amend. KBR seeks dismissal of the plaintiffs' claims under Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing they raise a political question, and under Rule 12(b)(1) or Rule 12(b)(6) due to the combatant activities exception in the Federal Tort Claims Act (FTCA). The political question doctrine holds that certain issues are nonjusticiable, particularly those involving policy choices assigned to Congress or the Executive Branch. The Supreme Court has identified six factors to evaluate the presence of a political question, which KBR asserts apply to this case. KBR contends that evaluating its involvement in sodium dichromate exposure at Quarmat Ali would require second-guessing military decisions, as the military had a crucial role in the situation. The Court assesses KBR’s argument based on the record, noting that KBR's contract with the United States Army Corps of Engineers required the military to declare the site "benign" before KBR could operate there, contingent upon the removal of various hazards.
Sodium dichromate at Quarmat Ali was identified as a toxic environmental and industrial hazard, utilized in water treatment for oil well operations. The definition of “benign” in Task Order 3 mandated the clearance of all environmental hazards, indicating that the U.S. military held responsibility for evaluating sodium dichromate hazards prior to KBR’s involvement. However, Task Order 3 also required KBR to assist in damage assessments once benign conditions were established and mandated detailed initial assessments and coordination with the Procuring Contracting Officer and responsible military commanders regarding environmental protection.
KBR was tasked with providing technical support to mitigate safety and environmental damage post-hostilities and was required to establish a safety and health program. Evidence shows that KBR had considerable responsibility for assessing and addressing sodium dichromate hazards upon arrival at Quarmat Ali. In July 2003, KBR conducted soil sampling, identifying sodium dichromate contamination, and tested employees for chromium exposure. By August 2003, KBR notified the U.S. Army Corps of Engineers (USACE) about the contamination and initiated protective measures, including subcontracting to manage contaminated soil.
An internal investigation by the U.S. Army corroborated KBR's actions, noting that both KBR and USACE became aware of the sodium dichromate presence around the same time. The investigation highlighted KBR's proactive measures, which included gathering safety data, instituting access restrictions, conducting further investigations, and developing remediation strategies. The report emphasized KBR's significant role in assessing and responding to the sodium dichromate hazards at Quarmat Ali, demonstrating KBR's active involvement in environmental safety.
Evidence contradicts KBR's assertion that the U.S. military had a dominant role in sodium dichromate exposure at Quarmat Ali. KBR was largely responsible for addressing sodium dichromate issues under Task Order 3 and played a significant role in assessing and responding to these hazards. The Court notes that KBR's obligations regarding environmental and safety issues can be evaluated independently of the military's decisions related to the restoration efforts at Quarmat Ali.
The first Baker factor, concerning the constitutional commitment of issues to a political department, indicates that challenges to military commands are political questions unsuitable for judicial resolution. The military directed KBR to restore operations at Quarmat Ali and was involved in detecting contamination prior to and during KBR's presence on site. However, KBR’s actions can be assessed without questioning military decisions. Thus, this case focuses on KBR's conduct, not military decisions, indicating that the first Baker factor is not applicable.
The second Baker factor addresses whether there are judicially discoverable and manageable standards for resolving the plaintiffs' claims of negligence, gross negligence, fraud, and intentional infliction of emotional distress against KBR and Halliburton. The resolution of these claims hinges on whether traditional tort standards can be applied or if nonjudicial military standards are relevant.
The U.S. military was involved in the sodium dichromate exposure linked to the Plaintiffs’ injuries, having contracted KBR for restoration work at Quarmat Ali and assessing hazards before and during KBR’s presence. This military involvement does not negate traditional tort standards for the Plaintiffs' claims, which require establishing that KBR and/or Halliburton's actions caused the injuries, but not necessarily that they were the sole causes. Under the Restatement (Second) of Torts, a defendant can be liable even when other parties also contributed to the injury if they are a cause in fact. KBR’s significant responsibilities for addressing sodium dichromate hazards under Task Order 3 allow for an independent evaluation of its role in causation without questioning military decisions. The Court finds that the third and fourth Baker factors, concerning judicial discretion and respect for military decisions, do not apply, as the case can be resolved without delving into military policy. The fifth Baker factor regarding adherence to political decisions is also inapplicable, and KBR’s assertion of the sixth Baker factor concerning potential embarrassment from conflicting pronouncements by departments is unsubstantiated, as no governmental finding has been made linking KBR to the injuries. Consequently, KBR's motion to dismiss the Plaintiffs’ seventh amended complaint is denied regarding the political question issue.
KBR contends that the Plaintiffs' claims should be dismissed under the combatant activities exception of the Federal Tort Claims Act (FTCA), which waives sovereign immunity for tort claims against the government but excludes claims stemming from military or naval combat activities during wartime. The Fifth Circuit's interpretation of "combatant activities," as established in Johnson v. United States, includes actions directly connected to hostilities but excludes activities merely incidental to prior combat. KBR's operations at Quarmat Ali aimed to restore oil production rather than support active combat, aligning with the findings in Bixby v. KBR, where the court classified similar restoration efforts as foreign policy goals rather than combatant activities. The Court concludes that KBR’s activities did not qualify as necessary to or directly connected with ongoing hostilities and, therefore, the combatant activities exception does not apply. The Court also notes that it does not need to determine the applicability of the exception to private contractors, as the case at hand does not involve combatant activities. Consequently, KBR's motion to dismiss the Plaintiffs' seventh amended complaint based on this exception is denied, and the Court orders the Clerk to enter this decision and notify all parties involved.
