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To paraphrase Yogi Berra, it's déjà vu all over again for KBR.

In my Aug. 31 post I wrote about a significant pro-veteran ruling in the Oregon KBR Qarmat Ali litigation. This is the case where Oregon National Guard troops allege KBR's liability for negligence and for fraud arising out of plaintiffs' exposure to sodium dichromate and resultant hexavalent chromium poisoning while assigned to duty at the Qarmat Ali water plant in 2003.

Paul Papak, the federal district judge, rejected the motion by KBR and co-defendants to dismiss the suit for lack of subject-matter jurisdiction.

I noted that the end result was that the "we were just following orders" defense is looking even lamer than ever.

Now it turns out another judge, ruling on another KBR issue, its running of burn pits in Iraq and Afghanistan, has ruled the same way. Sick soldiers deployed in Iraq and Afghanistan filed claims against the corporations because of "alleged failures of the military contractors to treat water and dispose of waste in a manner required" by their contract with the US military.

Today federal court judge Roger W. Titus ordered that claims against military contractors, KBR (Kellogg Brown and Root) and Halliburton, may proceed.

In his 41-page opinion Judge Titus dismissed the jurisdictions of the defendants and is allowing limited discovery to go forward. In its ruling the Court stated:

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.

The judge notes the defendant's objections to proceeding with the case based on 1) that Plaintiffs' claims are nonjusticiable under the political question; 2) 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 and 3) are preempted by the "combatant activities" exception in the FTCA.

But he then writes:

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.

Now, this should not be taken that the Oregon National Guardsman will ultimately win in court. It is far too soon to be making such a prediction.

For example, in explaining his decision the judge refers to various "Baker" factors. The Baker factor refers to a 1962 case in which 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

For example, in regard to the first factor the judge is not ruling on whether the plaintiffs can meet their burden of proof motion. Rather he is asking whether the key inquiry posed by the first Baker factor of the political question doctrine is whether the Court can adjudicate this case without second-guessing the reasonableness of the military's operations and decisions.

Judge Titus says that "Based on Plaintiffs' narrowly tailored claims, the Court believes it can, albeit with significant restrictions on the scope of the inquiry."

In regard to second Baker factor the judge wrote:

The negligence standard is very flexible and depends heavily on the circumstances in each case. As of now, the Court does not know the precise nature of Defendants' allegedly negligent actions nor their attendant circumstances. Only after discovery develops the facts surrounding any unauthorized acts by Defendants can the Court evaluate whether workable standards exist. Accordingly, the second Baker factor does not exclude this lawsuit from judicial review at this time.

In looking at the fourth and sixth factors the judge wrote:

Again, because Plaintiffs' allegations pertain only to Defendants' allegedly unauthorized performance of waste disposal and water treatment services, it is doubtful that the exercise of jurisdiction by this Court will somehow disrespect or embarrass the executive or legislative branches.


In fact, subjecting defense contractors to potential tort liability for actions not approved by the military arguably expresses respect for the executive branch. [My emphasis] In a rulemaking to implement policy regarding contractor personnel authorized to accompany U.S. Armed Forces deployed outside the United States, the Department of Defense ("DoD") explicitly advised military contractors that they could be subjected "to prosecution or civil liability under the laws of the United States and the host nation" for the "inappropriate use of force." Defense Federal Acquisition Regulation Supplement; Contractor Personnel Authorized to Accompany U.S. Armed Forces, 73 Fed. Reg. 16,764, 16,767 (Mar. 31, 2008). When contractors expressed concern about their defenses in tort litigation, DoD made clear that it thought the rule "adequately allocates risks, allows for equitable adjustments, and permits contractors to defend against potential third-party claims." Id. at 16,768. The DoD explained:

[T]he clause retains the current rule of law, holding contractors accountable for
the negligent or willful actions of their employees, officers, and subcontractors. . . . Contractors will still be able to defend themselves when injuries to third parties are caused by the actions or decisions of the Government. However, to the extent contractors are currently seeking to avoid accountability to third parties for their own actions by raising defenses based on the sovereignty of the United States, this rule should not send a signal that would invite courts to shift the risk of loss to innocent third parties.

Consistent with the DoD's position, the Court will not, at this early stage, allow contractors "to avoid accountability to third parties for their own actions" based on the political question doctrine, or as discussed below, based on the sovereignty of the United States. Id. (emphasis added).

But perhaps the most intriguing part of the opinion comes when the judge discusses the Derivative Sovereign Immunity defense. As a general matter, the United States as a sovereign is immune from suit except under those limited circumstances in which it has waived that immunity. Judge Titus writes:

The costs, however, of blanketing government contractors with the sovereign's cloak of immunity at this early stage of the litigation are significant. In this case, Plaintiffs seek compensation for injuries resulting from exposure to burn pit emissions and contaminated water, which they allegedly would not have suffered absent what they claim were the Defendants' decisions to breach LOGCAP III without the necessary military permission and to otherwise disobey military directives. Assuming the truth of these allegations, refusing such victims compensation and allowing Defendants' allegedly unauthorized conduct to go unredressed would be contrary to the most fundamental tenets of our legal system. See Westfall, 484 U.S. at 295.

In addition to shifting the risk of loss onto innocent plaintiffs, inappropriately extending official immunity to defendants would discourage them from properly assessing the risks involved in their actions and taking proper precautions. See 73 Fed. Reg. at 16,768 ("However, to the extent contractors are currently seeking to avoid accountability to third parties for their own actions by raising defenses based on the sovereignty of the United States, this rule should not send a signal that would invite courts to shift the risk of loss to innocent third parties. The language in the clause is intended to encourage contractors to properly assess the risks involved and take proper precautions."). Thus, the costs of immunity to the hundreds of named Plaintiffs and to future government-defense contractor relationships are obviously considerable.

Based on this preliminary balancing of interests, it cannot be said at this juncture that the public interest demands that the Westfall absolute immunity protect Defendants to the same extent it protects federal officials. Plaintiffs contend, and the Court agrees, that this case can proceed while "insulat[ing] the decisionmaking process from the harassment of prospective litigation." See Westfall, 484 U.S. at 295. So long as the military's decisionmaking process remains insulated and the government is freed from the "costs of vexatious and often frivolous damages suits," id., the benefits to government efficiency are outweighed by the interests of the Plaintiffs in securing compensation for injuries resulting from Defendants' allegedly unauthorized acts and of the public in holding Defendants accountable for any such wrongful conduct that may be proven.

 
 
 

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