In re Inc.

• Decision Date: 08 September 2010
• Docket Number: Master Case No.: RWT 09MD2083
• Citation: 736 F.Supp.2d 954
• Parties: In re: KBR, INC., Burn Pit Litigation.
• Court: U.S. District Court — District of Maryland

736 F.Supp.2d 954

In re: KBR, INC., Burn Pit Litigation.

Master Case No.: RWT 09MD2083.

United States District Court,

D. Maryland.

Sept. 8, 2010.

Susan Laura Burke, Susan Mohseni Sajadi, Burke LLC, Washington, DC, Frederick Curtis Baker, Vincent Ian Parrett, Joseph Fred Rice, Motley Rice LLC, Mt. Pleasant, SC, for Plaintiff.

Bikram Bandy, Raymond B. Biagini, Robert A. Matthews, Shannon Gibson Konn, Timothy K. Halloran, McKenna Long and Aldridge LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

Lieutenant Milo Minderbender, a fictional war profiteer during World War II, expressed the following capitalist sentiment in Joseph Heller's novel Catch-22: "Frankly, I'd like to see the government get out of war altogether and leave the whole field to private individuals." Joseph Heller, Catch-22 259 (1961). While not to the extent advocated by Lieutenant Minderbender,the role of government contractors in combat zones has grown to an unprecedented degree in recent years with the wars waged by the United States in Iraq and Afghanistan.

To support the logistics of its missions in these two war theaters, the U.S. military has relied on private civilian contractors awarded contracts under the auspices of a program known as the Logistics Civil Augmentation Program ("LOGCAP"). The Army awarded its third LOGCAP contract ("LOGCAP III") to a division of Kellogg Brown & Root, Inc. ("KBR, Inc.").¹ Under LOGCAP III, KBR, Inc. agreed to treat water and to manage and dispose of waste at military bases in Iraq and Afghanistan. One method of waste disposal used by KBR, Inc. involves burning items in open pits commonly referred to as "burn pits."

American soldiers, veterans, and former contractor employees (collectively, "Plaintiffs") allege that, while stationed on military bases in Iraq and Afghanistan, they suffered injuries resulting from exposure to contaminated water and to toxic emissions from burn pits. Seeking to recover for their injuries, Plaintiffs have filed forty-three complaints in forty-two states across the country, asserting a multitude of state tort law claims against KBR, Inc., Kellogg Brown & Root Services, Inc., Kellogg Brown & Root LLC, and Halliburton Company (collectively, "Defendants"). The Judicial Panel on Multi-District Litigation ("MDL") transferred these cases to this Court for coordinated and consolidated pretrial proceedings.

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. Courts must be careful not to pass judgment on matters outside their realm of competence, and especially in national security matters entrusted to other branches of government. In time of war, courts are reluctant to burden the military and its personnel with onerous and intrusive discovery requests. Failure to exercise such caution may threaten the success of military missions abroad.

Out of these concerns emerge various defenses that may be asserted by contractors facing tort suits arising from their actions. Defendants assert three of those defenses in their motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).² Theycontend: first, that Plaintiffs' claims are nonjusticiable under the political question doctrine; second, they are entitled to "derivative sovereign immunity" based on the "discretionary function" exception to the federal government's waiver of immunity in the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2680(a) (2006); and, third, Plaintiffs' claims are preempted by the "combatant activities" exception in the FTCA, id. § 2680(j).

In tension with the exercise of caution supported by these legal defenses is the legitimate concern that the judiciary may prematurely close courtroom doors to soldiers and civilians injured from wartime logistical activities performed by hired hands allegedly acting contrary to military-defined strictures. Courts must be prepared to adjudicate cases that ultimately expose defense contractors to appropriate liability where it is demonstrated that they acted outside the parameters established by the military and, as a result, failed to exercise proper care in minimizing risk to service members and civilians.

These rival considerations drive Plaintiffs' opposition to Defendants' motion. Plaintiffs emphasize the preliminary nature of this lawsuit and the narrow tailoring of their tort claims to wartime logistical activities negligently performed by Defendants in breach of their duties under LOGCAP III. They argue that discovery relating to their claims is necessary and can be limited so as to avoid separation of powers and competency concerns and to minimize any potential interference with, and detraction from, the war efforts.

For the reasons provided below, the Court agrees with Plaintiffs that their claims, based on their as yet unproven factual allegations, may be justiciable at this time. An initial phase of carefully limited discovery is therefore appropriate in order to frame the issue with sufficient facts so that the Court may make an informed decision.

I. Defendants' Motions To Dismiss for Lack of Subject Matter Jurisdiction

In multidistrict litigation, the law of the transferee circuit governs questions of federal law. See In re Gen. Am. Life Ins. Co. Sales Practices Litig., 391 F.3d 907, 911 (8th Cir.2004); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir.1993); In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1176 (D.C.Cir.1987); cf. Bradley v. United States, 161 F.3d 777, 782 n. 4 (4th Cir.1998) (applying Fourth Circuit law to questions of federal law in a case transferred from the Fifth Circuit). Accordingly, where necessary, the Court will apply Fourth Circuit law to determine the scope of its subject matter jurisdiction.

A defendant may challenge subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) by contending "that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). Once a defendant makes a facial challenge to subject matter jurisdiction, "the burden of proving subject matter jurisdiction is on the plaintiff." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991). A plaintiff receives the same procedural protection as would be received under a Rule 12(b)(6) consideration: "the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Kerns v. United States, 585 F.3d 187, 192 (4th Cir.2009). When deciding a Rule 12(b)(1) motion to dismiss, "the district court may regard the pleadings asmere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Velasco v. Gov't of Indon., 370 F.3d 392, 398 (4th Cir.2004).

A. The Political Question Doctrine

The political question doctrine recognizes both the constitutional separation of powers among the branches of the federal government, as well as the inherent limitations on the judiciary. Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). "[D]esigned to restrain the Judiciary from inappropriate interference in the business of the other branches of Government," United States v. Munoz-Flores, 495 U.S. 385, 394, 110 S.Ct. 1964, 109 L.Ed.2d 384 (1990), the doctrine excludes from judicial review cases or controversies in which courts "have no rightful power and no compass," Smith v. Reagan, 844 F.2d 195, 202 (4th Cir.1988).

In Baker v. Carr, the Supreme Court set forth six independent guidelines to aid a court in identifying a political question:

1. A textually demonstrable constitutional commitment of the issue to a coordinate political department; or

2. A lack of judicially discoverable and manageable standards for resolving it; or

3. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or

4. The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or

5. An unusual need for unquestioning adherence to a political decision already made; or

6. The potentiality of embarrassment from multifarious pronouncements by various departments on one question.

369 U.S. at 217, 82 S.Ct. 691. In applying these guidelines, a court must engage in a "discriminating inquiry into the precise facts and posture of the particular case," while understanding "the impossibility of resolution by any semantic cataloguing." Id. "[It] is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance." Id. at 211, 82 S.Ct. 691.

The body of case law applying the political question doctrine to cases brought against private contractors for their work in war zones is in its infancy. While numerous district courts have grappled with lawsuits where defense contractors raise the political question doctrine as a subject matter bar to tort claims arising out of support services provided in Iraq and Afghanistan, only three of those decisions have undergone appellate scrutiny.

The Eleventh Circuit in McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (2007), and the Fifth Circuit in Lane v. Halliburton, 529 F.3d 548 (2008), both held that the political question doctrine did not preclude all tort claims against defense contractors. McMahon involved tort claims brought by service members arising out of a crash of a contractor-operated plane carrying troops in Afghanistan, 502 F.3d at 1358, while Lane involved claims brought by contractor employees injured or killed when insurgents attacked their fuel convoy in Iraq, 529 F.3d at 555. Both Circuits agreed that the political question doctrine may bar state law tort suits...