Virginia Lawyers Weekly VA Lawyers Weekly
Waste and water management systems in Iraq and Afghanistan were operationally controlled by the military, not its contractor. Thus, mass tort claims for harms caused by the contractors’ alleged environmental mismanagement were barred by the political question doctrine.
Background
As part of its military operations in Afghanistan and Iraq, the U.S. Army awarded Defendant KBR Inc. a 10-year contract to provide waste management and water services at forward operating bases in both countries.
The Plaintiffs in this multidistrict litigation are service members, civilian contractors, and surviving family members who allege they suffered harms due to exposure to smoke from open-air burn pits and due to drinking impure water. Their consolidated suit claims that KBR failed to design, manage, and operate the burn pits safely and to treat and monitor water quality.
KBR moved to dismiss for lack of subject-matter jurisdiction, based on the political question doctrine, and for summary judgment based on pre-emption under the Federal Tort Claims Act. After an evidentiary hearing resulting in extensive determinations of fact, the district court found that the use of burn pits “reflected a military judgment” in a dangerous wartime environment. Accordingly, the district court held that the Plaintiffs’ suit presented a political question for which the court lacked subject-matter jurisdiction. The district court also held that the Federal Tort Claims Act pre-empted the Plaintiffs’ state-law claims.
Political question
The district court correctly held that the Plaintiffs presented a non-justiciable political question. Suits against military contractors raise political questions for which the court lacks jurisdiction if the military exercised direct – i.e. plenary and actual – control over the contractor.
Here, the military’s control over KBR was plenary and actual. It directed to KBR not only what must be done, but also how. KBR had little to no discretion as to how to manage the waste; the military mandated the use of burn pits as a matter of military judgment. KBR couldn’t unilaterally choose to use landfills, recycling, or incinerators instead. The military also exercised plenary control over where to construct the burn pits, what could or couldn’t be burned, when KBR could operate them, how high the flames should be, and how large each burn should be.
KBR similarly had little discretion to choose how to provide potable water. Depending on the military supply chain to transport anything, it couldn’t unilaterally bring bottled water from outside Iraq. The military directed the frequency and quantity of potable water to be produced and dictated how much should be stored.
Exercising extensive control and oversight over KBR’s burn pit operations and water services, military commanders and their staff interfaced with KBR contractors on a regular basis. The operational command determined the methods of waste management and water services to be used, dictated support requirements, and directed KBR to provide the necessary services through its contracting arm. The military also retained ultimate responsibility for testing water quality. Furthermore, the military continuously and meticulously evaluated whether KBR was meeting the commanders’ intent.
The district court’s conclusions that the military decided, authorized, and mandated the use of burn pits and that there was no unauthorized use of burn pits are well supported by the record. A few vaguely alleged instances of burning hazardous material, despite the military’s prohibition against it, do not constitute the type of systematic failure and lack of command presence that has led this court not to find military control in other cases.
Accordingly, KBR’s decisions pertaining to waste management and water services were de facto military decisions that are not reviewable by this court. The political question doctrine bars the Plaintiffs’ suit.
Sovereign immunity
Based on the preceding analysis, the court vacates the portion of the district court’s opinion discussing the Federal Tort Claims Act, which is now a moot issue. A review of that aspect of the district court’s ruling would amount to an advisory opinion that this court lacks jurisdiction to render.
Affirmed in part and vacated in part.
In re KBR Inc. Burn Pit Litigation, Case No. 17-1960, June 20, 2018. 4th Cir. (Floyd), from DMD at Greenbelt (Titus). Susan L. Burke for Appellants; Warren W. Harris for Appellees. VLW No. 018-2-132, 37 pp.
