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In re KBR, Inc., Burn Pit Litigation

United States District Court, D. Maryland

February 27, 2013


Page 753

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

Raymond B. Biagini, Robert A. Matthews, Daniel L. Russell, Jr., Shannon Gibson Konn, Timothy K. Halloran, McKenna Long and Aldridge LLP, Washington, DC, for Defendants.


ROGER W. TITUS, District Judge.

On September 8, 2010, this Court entered a Memorandum Opinion and Order [ECF No. 99] denying the Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (" Original Motion" ) [ECF No. 21]. See In re: KBR Burn Pit Litig., 736 F.Supp.2d 954 (D.Md.2010). The Defendants have now filed a Renewed Motion to Dismiss for Lack of Subject Matter Jurisdiction (" Renewed Motion" ) [ECF No. 217], and the Court heard oral arguments on July 16, 2012. For the reasons that follow, the Renewed Motion will be granted and all cases in this multi-district litigation will be dismissed.

This case is about war, in fact two wars, and generalized claims made by the Plaintiffs against contractors serving the military during those wars. It has sometimes

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been said that " war is hell," an observation frequently attributed to General William Tecumseh Sherman.[1] Especially during times of war, the military frequently calls upon civilians and civilian contractors to aid in the fulfillment of its missions under often hellacious combat conditions.

Tort and other claims are occasionally made against those chosen to aid the government, a circumstance that generated these observations by Chief Justice Roberts in Filarsky v. Delia, --- U.S. ----, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012):

Affording immunity not only to public employees but also to others acting on behalf of the government similarly serves to " ‘ ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.’ " Richardson [ v. McKnight, 521 U.S. 399], supra, at 408, 117 S.Ct. 2100 [138 L.Ed.2d 540 (1997) ] (quoting Wyatt [ v. Cole, 504 U.S. 158], supra, at 167, 112 S.Ct. 1827 [118 L.Ed.2d 504 (1992) ] ). The government's need to attract talented individuals is not limited to full-time public employees. Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent work force to secure the services of private individuals....

* * * * * *

Sometimes, as in this case, private individuals will work in close coordination with public employees, and face threatened legal action for the same conduct. See App. 134 (Delia's lawyer: " everybody is going to get named" in threatened suit). Because government employees will often be protected from suit by some form of immunity, those working alongside them could be left holding the bag— facing full liability for actions taken in conjunction with government employees who enjoy immunity for the same activity. Under such circumstances, any private individual with a choice might think twice before accepting a government assignment.

Filarsky, 132 S.Ct. at 1665-66.

The dissenting opinion of Circuit Judge J. Harvey Wilkinson in Al Shimari v. CACI Int'l, Inc., 679 F.3d 205 (4th Cir.2012), addressed this same concern in the context of contractors working for the military in time of war:

Tort regimes involve well-known tradeoffs. They may promote the public interest by compensating innocent victims, deterring wrongful conduct, and encouraging safety and accountability. However, tort law may also lead to excessive risk-averseness on the part of potential defendants. And caution that may be well-advised in a civilian context may not translate neatly to a military setting, where the calculus is different, and stakes run high. Risks considered unacceptable in civilian life are sometimes necessary on a battlefield. In order to secure high-value intelligence or maintain security, the military and its agents must often act quickly and on the basis of imperfect knowledge. Requiring consideration of the costs and consequences of protracted tort litigation introduces a wholly novel element into military decisionmaking, one that has never before in our country's history been deployed so pervasively in a theatre of armed combat.

* * * * * *

Given these realities, it is illusory to pretend that these suits are simply ordinary tort actions by one private party against another. Instead, because contractors regularly assist in " the type of

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governmental action that was intended by the Constitution to be left to the political branches directly responsible ... to the electoral process," see Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973), a decent respect for the separation of powers compels us to consider what sort of remedy would best ensure the authority of the executive over those with whom it partners in carrying out what are core executive functions. The answer is obvious. Unlike tort, contract law gives the executive branch a mechanism of control over those who regularly assist the military in performing its mission.

Al Shimari, 679 F.3d at 226, 241. With these preliminary observations in mind, this Court will first address the background and procedural history of the cases before it.

I. Background and Procedural History

In fifty-seven separate complaints,[2] Plaintiffs, the majority of whom are United States military personnel, have brought a myriad of state law tort and contract claims against Defendants KBR, Inc., Kellogg Brown & Root Services Inc., Kellogg Brown & Root LLC and Halliburton Company (collectively, " Defendants," " KBR," or " KBR Defendants" ) in connection with the United States military's wartime activities in Operation Iraqi Freedom in Iraq and Operation Enduring Freedom in Afghanistan. Plaintiffs seek to recover from Defendants for injuries they claim to have suffered as a result of alleged exposure to emissions from open burn pits and to contaminated water at military bases at literally hundreds of locations throughout Iraq and Afghanistan. Notably, their claims do not relate to a specific, discrete event, but rather to conditions endured in vast theaters of war in two countries over extended periods of time. Factually, their claims do not involve sensational subjects such as torture that may test the outer limits of legal principles, but rather the more mundane questions of waste disposal and water supply.

Forty-four of the pending cases purport to be nationwide class actions, [3] while thirteen assert claims only for the named Plaintiffs. Thirty-seven of the cases were filed in federal courts, while twenty were filed in state courts and removed to federal courts. All of the cases have been transferred to this Court for consolidated pretrial proceedings by the Judicial Panel on Multidistrict Litigation on the basis that the actions " involve common questions of fact." See ECF No. 1. Paragraph 67 of the First Consolidated MDL Complaint seeks class certification because " common questions of law and fact predominate" in these cases. See ECF No. 49.

Defendants filed the Original Motion on January 29, 2010. See ECF No. 21. Defendants contended that: (1) Plaintiffs' claims are non-justiciable under the political question doctrine; (2) Defendants 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); and (3) Plaintiffs' claims are preempted by the " combatant activities" exception in the FTCA, id. § 2680(j).

In its September 8, 2010 Order denying Defendants' Original Motion without prejudice,

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this Court concluded that it did not then have enough information to decide whether Plaintiffs' claims were non-justiciable under the political question doctrine, barred by derivative sovereign immunity or preempted under the combatant activities exception to the FTCA. In re: KBR Burn Pit Litig., 736 F.Supp.2d at 957. In denying the Defendants' Original Motion without prejudice, this Court also noted that the legal principles upon which they relied were still developing. Id. at 979 n. 15. In that regard, this Court observed that:

[T]he United States Court of Appeals for the Fourth Circuit has scheduled oral argument on October 26, 2010 before a single panel in three cases that address many of the arguments that have been presented by the parties in this case. * * * The Fourth Circuit may (and, of course, may not) benefit from the additional analysis provided by this Opinion, and this Court will certainly benefit from an up-to-date analysis by the Fourth Circuit of some of the principal legal issues that have been raised in this case.

Id. (citations omitted).

Because this Court denied Defendants' Original Motion without prejudice, it asked both parties to submit a joint discovery plan for limited jurisdictional discovery. See id. at 979. This Court also invited the participation of the United States in formulating a discovery plan and, in that regard, cautioned that " the full fury of unlimited discovery will not be unleashed at this time," stressing " the importance of not overly burdening the military and its personnel with onerous and intrusive discovery requests." Id.

On December 10, 2010, without having ruled on the scope of any possible discovery,[4] this Court ordered that all proceedings be stayed. See Stay Order, ECF No. 112. Having listened to the October 26, 2010 Fourth Circuit oral arguments in Al Shimari, Al-Quraishi, and Taylor, this Court was " even more convinced that the disposition of these cases will be of significant assistance in determining the appropriate duration and scope of jurisdictional discovery, if any, in these cases." See Memorandum Opinion at 2, ECF No. 111. This Court also noted that the Supreme Court had invited the Solicitor General to file a brief in Saleh v. Titan Corp., 580 F.3d 1 (D.C.Cir.2009), writ of certiorari docketed No. 09-1313 (2010), a case addressing preemption-based defenses derived from the FTCA's combatant activities exception. Id.

Some of the anticipated legal developments did not fully materialize. On June 27, 2011, the Supreme Court denied certiorari in Saleh and, in doing so, declined to address the contours of a government contractor's preemption defense as derived from the FTCA's combatant activities exception.

On September 21, 2011, a three-judge panel of the Fourth Circuit issued opinions

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in Al-Quraishi v. L-3 Services, Inc., 657 F.3d 201 (4th Cir.2011) and Al Shimari v. CACI Int'l, Inc., 658 F.3d 413 (4th Cir.2011). In Al-Quraishi, the panel found that it had appellate jurisdiction and reversed and remanded the case with directions to dismiss on preemption grounds claims asserted by Iraqi citizens who alleged that they had been tortured. 657 F.3d at 203-04. Al-Quraishi was relied upon for the exercise of appellate jurisdiction in the companion case, Al Shimari. See 658 F.3d at 417.

In Al Shimari, the same three-judge panel of the Fourth Circuit reversed a lower court decision denying a government contractor's motion to dismiss under the combatant activities-based preemption. Id. at 420. Relying on the Supreme Court's preemption analysis in Boyle v. United Technologies Corp., 487 U.S. 500, 504-05, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), and the District of Columbia Circuit's application of Boyle in Saleh, the panel held that the FTCA's combatant activities exception preempted Iraqi citizens' state tort claims against a contractor for claims arising out of the contractor's alleged torture of those Iraqi citizens at Abu Ghraib prison. Al Shimari, 658 F.3d at 417. The panel majority found plaintiffs' claims to be preempted because " this case involves allegations of misconduct in connection with the essentially military task of interrogation in a war zone military prison by contractors working in close collaboration with the military" and imposing state tort liability " conflicts with the FTCA's policy of eliminating tort concepts from the battlefield. " Id. at 419-20 ( quoting Saleh, 580 F.3d at 7) (emphasis in original). The panel decision in Al-Quraishi adopted the same analysis of combatant activities-based preemption used in Al Shimari because the " factual context" in Al-Quraishi was " the same as" in Al Shimari. 657 F.3d at 202.

On November 8, 2011, the Fourth Circuit issued an order granting a petition for rehearing en banc in the Al Shimari and Al-Quraishi cases.[5] On May 11, 2012, the en banc court, in an 11-3 decision, held that orders denying the contractors' motions to dismiss were not subject to interlocutory appeal under the collateral order doctrine. See Al Shimari v. CACI Int'l, Inc., 679 F.3d 205 (2012). The en banc majority concluded that it lacked jurisdiction because combatant activities-based preemption is not an immunity but a defense, and derivative sovereign immunity is a qualified immunity that requires government contractors to provide a sufficiently developed record to accurately assess the claimed immunity.[6] Id. In a concurring opinion, Judge Duncan expressed the " hope that the district courts will give due consideration to the appellants' immunity and preemption arguments— especially in light of the Supreme Court's decision in Filarsky v. Delia, --- U.S. ----, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012), as discussed in Judge Niemeyer's dissent— which are far from lacking in force." Id. at 224.

On September 21, 2011, the Fourth Circuit issued its panel decision in Taylor v. Kellogg Brown & Root Services, Inc., 658 F.3d 402 (4th Cir.2011). There, the court held that a service member's claim against a military contractor for injuries sustained resulting from an electric shock was barred under the political question doctrine.

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Id. at 411. The Plaintiff in Taylor did not seek en banc review. Thus, Taylor creates new, binding precedent with respect to whether this Court has subject matter jurisdiction over Plaintiffs' claims under the political question doctrine.[7] In addition, while the panel decisions in the Al Shimari and Al-Quraishi cases were vacated, the analysis in those opinions is quite instructive, as is the discussion of the merits of the immunity and preemption defenses in the en banc concurring opinion by Judge Duncan and the dissenting opinions by Judges Niemeyer and Wilkinson.

On the issue of combatant activities preemption, this Court has been aided by the observations of the Solicitor General made in amicus briefs filed in Saleh in the Supreme Court and in Al Shimari in the Fourth Circuit. Finally, on the issue of derivative sovereign immunity, the analysis of the Supreme Court in Filarsky has been very instructive.

II. The Standard Applicable to the Defendants' Renewed Motion

The standard applicable to the Renewed Motion is a familiar one, and was described in the earlier opinion in this case:

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 as mere 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).

In re: KBR Burn Pit Litig., 736 F.Supp.2d at 957.

These are not cases in which the factual questions relating to jurisdiction are inextricably intertwined with the merits of the claims such as those asserted by the Plaintiff in Kerns v. United States, 585 F.3d 187 (4th Cir.2009). There, scope of employment was an issue that was determinative of both jurisdiction and the merits of the claim, and the Fourth Circuit held that under those fairly unique circumstances, dismissal under Rule 12(b)(1) should not occur without affording the plaintiff procedural safeguards such as discovery. See Kerns, 585 F.3d at 195.

Here, the standards applicable to the defenses asserted by KBR do not necessitate any examination of the merits. As discussed below, the defenses asserted require this Court to examine not whether the KBR Defendants were negligent or in breach of a contract or other tort duty, but rather, for example, whether national defense interests were closely intertwined with the military's decisions governing the contractor's conduct or whether the contractor

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was engaged in providing services to the military in connection with the military's combat activities. Indeed, in Taylor the Fourth Circuit concluded that the political question doctrine defeated federal court jurisdiction under facts that assumed the merits of the plaintiff's contention that a KBR employee had acted negligently and contrary to a Marine directive. 658 F.3d at 411-12.

Nor is this a case that can be easily characterized as either a pure " facial" challenge or a " factual" challenge to jurisdiction. Kerns, 585 F.3d at 192. Here, there are jurisdictional factual allegations in the complaint that are not necessarily disputed. But there are additional facts asserted by the Defendants, the establishment of which has been shown by extensive affidavits and exhibits, that demonstrate that jurisdiction is defeated by one or more of the defenses asserted. Accordingly, the more appropriate analytical framework is supplied by the decision in Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir.2004), in which the Fourth Circuit observed that where a Rule 12(b)(1) motion is based on " ‘ immunity, which provides protection from suit and not merely a defense to liability, ... the court must engage in sufficient pretrial factual and legal determinations to ‘ satisfy itself of its authority to hear the case’ before trial.' " Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027-28 (D.C.Cir.1997) (quoting Foremost-McKesson v. Islamic Republic of Iran, 905 F.2d 438, 449 (D.C.Cir.1990) (internal quotation ...

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