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Soldiers Can Sue for Burn Pit Injuries

A district court erred in dismissing negligence suits filed by U.S. Servicemembers who allege injuries from defendant private contractors’ management of waste disposal in Iraq and Afghanistan by using open air burn pits with no safety controls and by failing to perform water safety tests to ensure clean drinking water; the 4th Circuit vacates dismissal and remands for further proceedings.

Plaintiff Servicemembers allege defendant KBR failed to properly handle and incinerate waste by burning “vast quantities” of unsorted waste in enormous open air burn pits with no safety controls, and that smoke from the burn pits contained carcinogens and respiratory sensitizers, and created a severe health hazard and potentially caused acute and chronic health problems. The Servicemembers also contend KBR provided contaminated water to military forces. Specifically, they argue KBR did not perform water quality tests or ensure that water contained proper levels of chlorine residual.

Taylor v. Kellogg Brown & Root Servs. Inc., 658 F.3d 420 (4th Cir. 2011), concerns how to treat military contractors under the political question doctrine. Under the Taylor test, we first consider the extent to which the government contractor was under military control. Second, we evaluate whether national defense interests were closely intertwined with the military’s decisions governing the government contractor’s conduct.

Although some evidence demonstrates that the military exercised control over KBR’s burn pit activities, the Servicemembers presented evidence – which the district court did not discuss – contradicting this picture regarding KBR’s operational control over the burn pits at various military bases.

Although the evidence shows the military exercised some level of oversight over KBR’s burn pit and water treatment activities, we simply need more evidence to determine whether KBR or the military chose how to carry out these tasks. We cannot determine whether the military control factor renders this case nonjusticiable at this time.

Further, the second Taylor factor does not necessarily counsel in favor of nonjusticiability in this case. KBR’s causation defense does not require evaluation of the military’s decision making unless 1) the military caused the Servicemembers’ injuries, at least in part, and 2) the Servicemembers invoke a proportional-liability system that allocates liability based on fault.

Because neither Taylor factor currently indicates that the Servicemembers’ claims are nonjusticiable, we hold that the political question doctrine does not render this case nonjusticiable at this time and vacate the district court’s decision to dismiss the Servicemembers’ claims on that basis.

We turn next to the Servicemembers’ contention that the district court erred in finding that KBR was entitled to immunity under the Federal Tort Claims Act’s discretionary function exception.

The FTCA explicitly excluded independent contractors from its scope. Specifically, the statute does not include government contractors in its definition of “federal agency” or “employee of the government.” The discretionary function exception includes both of these terms.

KBR is entitled to derivative sovereign immunity only if it adhered to the terms of its contract with the government. At this point in the litigation, the record does not contain enough evidence to determine whether KBR acted in conformity with the LOGCAP III contract, its appended task orders and any laws and regulations the contract incorporates. We also lack evidence regarding whether the military permitted or required KBR to deviate from the contract’s terms under certain circumstances. We hold that the district court erred in finding that KBR was entitled to derivative sovereign immunity at this time and vacate the court’s decision to dismiss the Servicemembers’ claims on that ground.

Also, a discretionary function involves an element of judgment or choice. If KBR enjoyed some discretion in how to perform its contractually authorized responsibilities, the discretionary function exception would apply, and KBR could be liable. The district court should conduct this inquiry before determining whether KBR is entitled to derivative sovereign immunity under the discretionary function exception.

Finally, the district court erred in finding that the FTCA’s “combatant activities” exception preempted the state tort laws undergirding their claim. Performing waste management and water treatment functions to aid military personnel in a combat area is undoubtedly necessary to and in direct  connection with actual hostilities. We therefore hold that KBR engaged in combatant activities under the test in Johnson v U.S., 170 F.2d 767 (9th Cir. 1948).

Although it is evident that the military controlled KBR to some degree, the extent to which KBR was integrated into the military chain of command is unclear. The district court therefore erred in resolving this issue before discovery took place. We vacate its decision to dismiss the Servicemembers’ claims on the basis of preemption.

Vacated and remanded for further proceedings.

In re: KBR Inc. Burn Pit Litigation (Floyd) No. 13-1430, March 6, 2014; Susan L. Burke for appellants; Robert A. Matthews for appellees. VLW 014-2-048, 55 pp.

VLW 014-2-048

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