War Zone Government Contractor Liability Under State Tort Law
Is there government contractor liability under state tort law for government contract operations in a war zone? An important case in this developing area of law is working its way through the federal courts.
On September 8, 2010, the United States District Court for the District of Maryland denied the government contractors’ motions to dismiss for lack of subject matter jurisdiction and ordered counsel for the Plaintiffs, Defendant government contractors, and the United States as amicus curiae to formulate a discovery plan in this multi-district jurisdiction case styled In Re KBR, Inc., Burn Pit Litigation.
Kellogg Brown & Root, Inc. (KBR, Inc.) had a government contract to treat water and to manage and dispose of waste at military bases in Iraq and Afghanistan. This is representative of the increasing role of government contractors in combat zones.
Plaintiffs including American soldiers, veterans, and former contractor employees filed forty-three complaints in forty-two states asserting state law tort claims against KBR Inc, Kellogg Brown & Root LLC, and Halliburton Company (government contractor Defendants). Plaintiffs claim that they were injured by exposure to contaminated water and to toxic emissions from burn pits. The Judicial Panel on Multi-District Litigation transferred the cases to the United States District Court, District of Maryland for coordinated and consolidated pretrial proceedings.
The September 8th decision examines the available case precedent and policy considerations inherent in these cases. The Court attempts to balance competing interests of exercising caution against Courts passing judgment on matters outside their realm of competence and in national security matters entrusted to other branches of government on one hand, and being willing to adjudicate cases that might ultimately expose defense contractors to appropriate liability on the other hand.
Defendants sought dismissal on three grounds: (1) the claims are nonjusticiable under the political question doctrine, (2) the Defendants are entitled to “derivative sovereign immunity” as a discretionary function under the Federal Tort Claims Act (FTCA), and (3) Plaintiff’s claims are preempted by the “combatant activities” exception in the FTCA.
The Plaintiffs’ strongest argument against summary judgment is that their claims are limited to activities alleged to have been negligently performed by Defendants in breach of their government contracts. Plaintiff assert that Defendants made decisions unauthorized by the military to use burn pits and to treat water. The Court appears persuaded by this assertion as it is loathe to second-guess the reasonableness of military decisions.
The Defendants dispute that they treated water or disposed of waste in violation of their contracts and without authorization.
The District Court decided it is necessary to develop the facts in order to identify unauthorized actions performed by Defendants. “The costs…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 [their contract] without the necessary military permission and to otherwise disobey military directives. Assuming the truth of these allegations, refusing such victims compensation and allowing Defendants’ alleged unauthorized conduct to go unredressed would be contrary to the most fundamental tenets of our legal system.” In re KBR, INC., Burn Pit Litigation, —F.Supp.2d—, 2010 WL 3543460 (D.Md.)
The Court denied Defendants’ motions to dismiss and attempted to place restraint on unlimited discovery by requiring the parties to the litigation, and the United States as amicus curiae, to confer and develop a proposed plan for carefully limited discovery consistent with the Court’s decision.
For another case discussing government contractor civil liability for conduct while performing as a contractor in support of military operations, see August 6, 2010 blog post.
Contact government contracts attorney Karen S. Hindson at (843) 720-3722 or (770) 939-3936 to discuss your government contract law issues.