Petition for Writ of Certiorari — Alan Metzgar, et al., Petitioners v. KBR, Inc., et al.
Supreme Court briefSep 7, 2018
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No. 18In the
Supreme Court of the United States
ALAN METZGAR, et al.,
Petitioners,
v.
KBR, INC., et al.,
Respondents.
On Petition for a Writ of Certiorari to the United
States Court of A ppeals for the Fourth Circuit
PETITION FOR A WRIT OF CERTIORARI
Stephen I. Vladeck
727 East Dean Keeton Street
Austin, TX 78705
(512) 475-9198
Susan L. Burke
Counsel of Record
Law Offices of
Susan L. Burke
1611 Park Avenue
Baltimore, MD 21217
(410) 733-5444
sburke@burkepllc.com
Frederick C. Baker
Lisa Marie Saltzburg
James W. Ledlie
Motley Rice, LLC
28 Bridgeside Boulevard
Mount Pleasant, SC 29464
(843) 216-9000
Counsel for Petitioners
September 7, 2018
282919
A
(800) 274-3321 • (800) 359-6859
i
Question Presented
Over the past decade, a number of lower courts have
applied the political question doctrine to dismiss statelaw tort claims for damages against private military
contractors. In this case, the Fourth Circuit relied upon
such reasoning to throw out consolidated tort suits
challenging Respondents’ disposal of hazardous materials
through open-air “burn pits” in Iraq and Afghanistan,
solely on the ground that the military exercised “direct
control” over Respondents.
The Question Presented is:
Whether, and under what circumstances, a state-law
tort suit for damages against a private defendant that
does not satisfy any of the factors identified in Baker v.
Carr, 369 U.S. 186 (1962), can nevertheless present a nonjusticiable political question?
ii
Parties to the Proceeding
The Petitioners, who were plaintiffs in the district
court and appellants in the Fourth Circuit, are: Alan
Metzgar; Paul Parker; Richard Ronald Guilmette; William
G. Brister, Jr.; Henry J. O’Neill; Michael Auw; Cory
Casalegno; Michael Douglas Moore; David U. Lackey;
Randall L. Robinson; Dean Guy Olson; Albert Paul Bittel,
III; Fred Robert Atkinson, Jr.; Robyn Sachs, personal
representative of Christopher Sachs, deceased; Jennifer
Monyijo; Stephen Flowers; Joanne Ochs; Melissa Ochs;
James Morgan; David Newton; Chris Boggiano; Earl
Chavis; Benny Lyle Reynolds; Joshua Eller; Robert
Cain; Craig Henry; Francis Jaeger; David McMenomy;
Mark Posz; El Kevin Sar; SMSgt. Glen S. Massman;
SSgt. Wendy L. McBreairty; Pablo Berchini; Brian P.
Robinson; Maurice Callue; Dennis Wayne Briggs; Edward
Lee Buquo; Wayne E. Fabozzi; Sharlene S. Jaggernauth;
Floyed James Johnson, Sr.; Tamra C. Johnson; Richard
Lee Keith; Daniel Santiago Morales; Phillip McQuillan;
Ildebbrando Perez; Luigi Antonio Povenza; Ruth Ann
Reece; Eduwardo Saavedra, Sr.; Jill R. Wilkins, personal
representative of Kevin E. Wilkins, deceased; Michael
Donnell Williams; Jermaine Lynell Wright; Edward
Adams; Kenneth Baldwin; Donna Wu; John Does 1–1000;
Jane Does 1–1000; Wallace McNabb; Kevin Paul Robbins;
Brian Blumline; Robert Bidinger; Unknown Parties;
Benjamin Boeke; Craig Kervin; Barry Zabielinski; David
Green; Nick Daniel Heisler; Derrol A. Turner; Vincent
C. Moseley; Alex Harley; John A. Wester, Jr.; Bill Jack
Carlisle, Jr.; Anthony Edward Roles; Marcos Barranco;
Joel Lugo; Shawn Thomas Sheridan; Jayson Williams;
Eunice Ramirez; Lee Warren Jellison, Jr.; George Lundy;
Thomas Kelleck; Dan Bowlds; Tony Allen Gouckenour;
John William Jackson; John Pete Troost; Deborah Ann
Wheelock; Charles Hicks; Sean Alexander Stough; Jeffrey
iii
Morgan Cox; James Warren Garland; Danny LaPierre;
Kenneth Harris; Anthony Jerome Williams; Kathy Vines;
Patrick Cassidy; William Barry Dutton; Christopher
Michael Kozel; Richard McAndrew; Lorenzo Perez;
Jessey Joseph Philip Baca; Daniel Tijernia; Heinz Alex
Disch; James McCollem; Travis Fidell Pugh; Anthony Ray
Johnson; David Michael Rohmfeld; Joshua David Beavers;
Matthew Joel Fields; Steven E. Gardner; Stephen R.
Jones; Kevin Scott Tewes; Hans Nicolas Yu; Thomas Olson;
Brian Paulus; Paul Michael Wiatr; Michael Foth; Brett
Anthony Mazzara; Lisa Rounds, personal representative
of Andrew Ray Rounds, deceased; David Rounds, personal
representative of Andrew Ray Rounds, deceased; Peter
Blumer; Scott Andrew Chamberlain; Timothy E. Dimon;
William Philip Krawczyk, Sr.; Sean Johnson; Sherry
Bishop, Individually and as representative of the estate
of Kirk A. Bishop; Gene Bishop; Patrick Bishop; Albert
Johnson, Jr.; David Jobes; Gene Leonard Matson; Timothy
J. Watson; Andrew Mason; Michelle Brown; Jonathan
Lynn; Charles Kinney; Michael McClain; Basil Salem;
Justin Gonzales; Matthew Guthery; Christopher Lippard;
David Parr; John F. Monahan; Amanda Brannon; L.
Chandler Brannon, and all others similarly situated.
The Respondents—KBR, Inc., Kellogg Brown &
Root LLC, Kellogg Brown & Root Services, Inc., KBR
Holdings, LLC, Kellogg Brown & Root International, Inc.,
KBR Group Holdings, LLC, KBR Technical Services,
Inc., Halliburton Company, Halliburton Energy Services,
Inc., DII Industries LLC, Brown & Root Services, and
Kellogg, Brown & Root, Inc.—were defendants in the
consolidated multi-district litigation before the district
court and appellees in the Fourth Circuit. ERKA Ltd. was
also a defendant in the district court, but was voluntarily
dismissed from the case by the plaintiffs.
iv
TABlE OF CONTENTs
Page
Question Presented . . . . . . . . . . . . . . . . . . . . . . . . i
Parties to the Proceeding . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii
Petition for a Writ of Certiorari . . . . . . . 1
Opinions Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Constitutional and Statutory
Provisions Involved . . . . . . . . . . . . . . . . . . . . . . . 5
Statement of the Case . . . . . . . . . . . . . . . . . . . . 5
Reasons for Granting the Petition . . . . 10
The Political Question Doctrine Does
Not Bar Tort Claims Against P rivate
Defendants O ver Whom the M ilitary
Exercises “Direct Control” . . . . . . . . . . . . . . . 11
I.
a.
Petitioners’ State-Law Tort Claims Do
Not Satisfy Any Baker Factors . . . . . . . . . 13
v
Cited Authorities
Page
1.
“Textually Demonstrable
Commitment” . . . . . . . . . . . . . . . . . . . . 13
2. “Judicially Manageable Standards” . . 15
3.
b.
“Respect Due Coordinate Branches” . 18
The Litigation These Lower-Court
Decisions Require Is Antithetical to
the Political Question Doctrine . . . . . . . . . .18
II. I n D etermining When the P olitica l
Q uestion D octrine Ba rs S uch S uits ,
Lower Courts Have A dopted an A rray of
Differing A pproaches . . . . . . . . . . . . . . . . . . . . . 21
a.
The Choice-of-Law Conflict . . . . . . . . . . . . 21
b.
The Procedural Posture Conflict . . . . . . . . 23
III. T his P etition is an I deal Vehicle for
Resolving the Question Presented . . . . . . . . . 25
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
vi
TABlE OF APPENdICEs
Page
A ppendix A — DENI A L OF A PPEA L
of the U N I T ED S TAT E S C OU RT
O F A P P E A L S F OR T H E F OU R T H
CIRCUIT, FILED JUNE 20, 2018 . . . . . . . . . . . . . . 1a
Appendix B — MEMORANDUM OPINION
of the UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF
MARYLAND, FILED July 19, 2017 . . . . . . . . . . 48a
A ppendix C — order of the
united states court of appeals
for the fourth circuit ,
dated july 26, 2018 . . . . . . . . . . . . . . . . . . . . . . 149a
A ppendix D — O R D E R of the
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND,
FILED JULY 19, 2017 . . . . . . . . . . . . . . . . . . . . . . 172a
vii
TABlE OF CITEd AuThORITIEs
Page
CASES
Al Quraishi v. L-3 Services, Inc.,
657 F.3d 201 (4th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . 7
Al Shimari v. CACI Int’l, Inc. (“Al Shimari I”),
658 F.3d 413 (4th Cir. 2011), vacated, 679 F.3d
205 (4th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7
Al Shimari v. CACI International, Inc.
(“Al Shimari II”),
679 F.3d 205 (4th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . 7
Al Shimari v. CACI Premier Tech., Inc.
(“Al Shimari IV”),
840 F.3d 147 (4th Cir. 2016) . . . . . . . . . . . . . . . . . 16, 17
Am. K-9 Detection Servs., LLC v. Freeman,
No. 15-932, 2018 WL 3207134
(Tex. June 29, 2018) . . . . . . . . . . . . . . . . . . . 2, 11, 23, 24
Baker v. Carr,
369 U.S. 186 (1962) . . . . . . . . . . . . . . . . . . . . . . . passim
Boyle v. United Technologies Corp.,
487 U.S. 500 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . 1, 17
Carmichael v. Kellogg, Brown
& Root Servs., Inc.,
572 F.3d 1271 (11th Cir. 2009) . . . . . . . . . . . . . . passim
viii
Cited Authorities
Page
Cohens v. Virginia,
19 U.S. (6 Wheat.) 264 (1821) . . . . . . . . . . . . . . . . . 4, 26
Colo. R. Water Conservation Dist. v. United
States,
424 U.S. 800 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Corrie v. Caterpillar, Inc.,
503 F.3d 974 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . 2
El-Shifa Pharm. Indus. Co. v. United States,
607 F.3d 836 (D.C. Cir. 2010) . . . . . . . . . . . . . . . . . . . 12
Feres v. United States,
340 U.S. 135 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 17
Ghane v. Mid-South Inst. of Self Defense
Shooting, Inc.,
137 So.3d 212 (Miss. 2014) . . . . . . . . . . . . . . . . . . . . . . 2
Gilligan v. Morgan,
413 U.S. 1 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14
Hamdi v. Rumsfeld,
296 F.3d 278 (4th Cir. 2002) . . . . . . . . . . . . . . . . . . . . 14
Hamdi v. Rumsfeld,
542 U.S. 507 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13
Harbury v. Hayden,
522 F.3d 413 (D.C. Cir. 2008) . . . . . . . . . . . . . . . . . . . 18
ix
Cited Authorities
Page
Harris v. Kellogg, Brown & Root Servs., Inc.,
724 F.3d 458 (3d Cir. 2013) . . . . . . . . . . . . . . . . . . . 2, 18
Hercules Inc. v. United States,
516 U.S. 417 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
In re KBR, Inc., Burn Pit Litig. (“Burn Pit I”),
736 F. Supp. 2d 954 (D. Md. 2010) . . . . . . . . . . . . . . . . 6
In re KBR, Inc., Burn Pit Litig. (“Burn Pit II”),
925 F. Supp. 2d 752 (D. Md. 2013) . . . . . . . . . . . . . . . . 7
In re KBR, Inc., Burn Pit Litig. (“Burn Pit III”),
744 F.3d 326 (4th Cir. 2014) . . . . . . . . . . . . . . . . passim
Japan Whaling Ass’n v. Am. Cetacean Soc’y,
478 U.S. 221 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
KBR, Inc. v. Metzgar,
134 S. Ct. 2833 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 8
KBR, Inc. v. Metzgar,
135 S. Ct. 1153 (2015) . . . . . . . . . . . . . . . . . . . . . . . 4, 11
Koohi v. United States,
976 F.2d 1328 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . 15
Kuwait Pearls Catering Co., WLL v. Kellogg
Brown & Root Servs., Inc.,
853 F.3d 173 (5th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 17
x
Cited Authorities
Page
Lane v. Halliburton,
529 F.3d 548 (5th Cir. 2008) . . . . . . . . . . . . . . . . . . 2, 19
Latif v. Obama,
677 F.3d 1175 (D.C. Cir. 2012) . . . . . . . . . . . . . . . . 3, 14
Mata v. Lynch,
135 S. Ct. 2150 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 25
McMahon v. Presidential Airways, Inc.,
502 F.3d 1331 (11th Cir. 2007) . . . . . . . . . . . . . . . . . . 16
McManaway v. KBR, Inc.,
554 F. App’x 347 (5th Cir. 2014) . . . . . . . . . . . . . passim
McManaway v. KBR, Inc.,
No. 12-20763, 2013 WL 8359992
(5th Cir. Nov. 7, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . 22
Nixon v. United States,
506 U.S. 224 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Saleh v. Titan Corp.,
580 F.3d 1 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . passim
Scheuer v. Rhodes,
416 U.S. 232 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Stencel Aero Eng’g Corp. v. United States,
431 U.S. 666 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
xi
Cited Authorities
Page
Taylor v. Kellogg, Brown & Root Servs., Inc.,
658 F.3d 402 (4th Cir. 2011) . . . . . . . . . . . . . 2, 7, 10, 13
Tel-Oren v. Libyan Arab Republic,
726 F.2d 774 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . 19
Vieth v. Jubelirer,
541 U.S. 267 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16
Zaidan v. Trump,
No. 17-581, 2018 WL 2976006
(D.D.C. June 13, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . 14
Zivotofsky v. Clinton (“Zivotofsky I”),
566 U.S. 189 (2012) . . . . . . . . . . . . . . . . . . . . . . . passim
STATUTES AND OTHER AUTHORITIES
10 U.S.C. § 802(a)(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
18 U.S.C. §§ 3261–67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
28 U.S.C. § 2671 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5
28 U.S.C. § 2680(j) . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 15
28 U.S.C. § 2680(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 15
1
Petition for a Writ of Certiorari
This case arises from serious injuries and deaths
sustained by U.S. servicemembers and contractor
employees as a result of Respondents’ disposal of toxic
materials through open-air “burn pits” in Iraq and
Afghanistan. Because contractors like Respondents
are expressly excluded from the Federal Tort Claims
Act (FTCA), see 28 U.S.C. § 2671, their tort liability is
typically governed by state law. And although Congress
has gradually expanded federal criminal jurisdiction
to encompass at least some unlaw ful conduct by
private military contractors overseas, see, e.g., Military
Extraterritorial Jurisdiction Act of 2000, 18 U.S.C.
§§ 3261–67; see also 10 U.S.C. § 802(a)(10), it has done
nothing, one way or the other, to alter ordinary rules of
civil liability in such cases. Instead, Petitioners brought
a series of state-law tort suits seeking damages against
Respondents, which the Judicial Panel on Multidistrict
Litigation consolidated for purposes of pre-trial
proceedings and transferred to the U.S. District Court
for the District of Maryland.
Relying upon Justice Scalia’s majority opinion in
Boyle v. United Technologies Corp., 487 U.S. 500 (1988),
some lower courts have fashioned a judge-made federal
common law defense to displace state tort liability in
similar cases, indirectly derived from the “combatant
activities” exception to the FTCA, 28 U.S.C. § 2680(j). See,
e.g., Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009); see
also Al Shimari v. CACI Int’l, Inc. (“Al Shimari I”), 658
F.3d 413 (4th Cir. 2011), vacated, 679 F.3d 205 (4th Cir.
2012) (en banc). To that end, one of the grounds relied upon
by the district court in dismissing Petitioners’ state-law
tort claims in this case was preemption under a Boyle-like
reading of the FTCA. See Pet. App. 138a–146a.
2
Whatever the merits of that approach, see, e.g., Saleh,
580 F.3d at 21–23 (Garland, J., dissenting) (explaining
why Boyle’s reasoning should only apply to the FTCA’s
discretionary function exception), other lower courts, like
the Court of Appeals in this case, have taken a broader—
and deeply problematic—tack. In a series of decisions
over the past decade, the Court of Appeals in this case,
as well as four additional circuits (and two state supreme
courts), have applied the political question doctrine to such
suits, holding that state-law tort claims seeking damages
against private military contractors who are controlled
by the military are not justiciable at all. See, e.g., Harris
v. Kellogg, Brown & Root Servs., Inc., 724 F.3d 458 (3d
Cir. 2013); Taylor v. Kellogg, Brown & Root Servs., Inc.,
658 F.3d 402 (4th Cir. 2011); Lane v. Halliburton, 529 F.3d
548 (5th Cir. 2008); Corrie v. Caterpillar, Inc., 503 F.3d
974 (9th Cir. 2007); Carmichael v. Kellogg, Brown & Root
Servs., Inc., 572 F.3d 1271 (11th Cir. 2009); Ghane v. MidSouth Inst. of Self Defense Shooting, Inc., 137 So.3d 212
(Miss. 2014); Am. K-9 Detection Servs., LLC v. Freeman,
No. 15-932, 2018 WL 3207134 (Tex. June 29, 2018).
Neither the ruling below nor any of these other
decisions can be squared with this Court’s analysis in
Zivotofsky ex rel. Zivotofsky v. Clinton (“Zivotofsky I”),
566 U.S. 189, 194–95 (2012), which reaffirmed the modest
scope of the political question doctrine. At a more basic
level, none of these rulings can be reconciled with Baker v.
Carr, 369 U.S. 186 (1962), in which this Court exhaustively
identified the six types of disputes that present nonjusticiable political questions, “in descending order of both
importance and certainty.” Vieth v. Jubelirer, 541 U.S. 267,
278 (2004) (plurality opinion). Ordinary state-law tort suits
seeking damages against private military contractors do
not implicate any of the Baker factors.
3
Paying little more than lip service to Baker and
Zivotofsky I, these lower-court decisions have instead
assumed that, because a comparable tort claim directly
against the military would present a non-justiciable
political question, it must follow that claims against private
contractors that implicate military decisionmaking are
likewise barred. In the Fourth Circuit, for example, a tort
suit seeking damages against a private military contractor
presents a non-justiciable political question so long as
“either (1) the military exercised direct control over the
contractor, or (2) ‘national defense interests were closely
intertwined with the military’s decisions regarding [the
contractor’s] conduct.’” Pet. App. 37a (citation omitted).
This analogy fails at its inception. This Court has
never suggested that the political question doctrine
insulates military decisions from judicial review—either
in general or in tort cases, specifically. To the contrary, it
has stressed that even claims challenging the military’s
battlefield capture and detention of enemy combatants are
not beyond the purview of the federal courts. See Hamdi
v. Rumsfeld, 542 U.S. 507, 535 (2004) (plurality opinion);
see also, e.g., Latif v. Obama, 677 F.3d 1175 (D.C. Cir.
2012) (adjudicating a detainee’s habeas case based upon
a highly classified intelligence report).
And in the specific context of tort claims against
the military, the principal obstacle to relief has been
the federal government’s sovereign immunity, not the
political question doctrine. Thus, if the military had
caused Petitioners’ injuries here, their claims would have
likely run into some combination of the FTCA’s combatant
activities exception, 28 U.S.C. § 2680(j), its foreign country
exception, id. § 2680(k), or Feres v. United States, 340 U.S.
135 (1950) (interpreting the FTCA to bar all tort claims
by servicemembers arising out of, or incident to, their
4
military service). In contrast, on the lower courts’ view of
the political question doctrine, there would have been no
need for either Congress or this Court to identify these
more specific constraints on the military’s tort liability.
Whether courts can and should fashion similar
sovereign immunity-like rules to protect contractors
exercising military functions is a difficult question,
especially in light of Congress’s conscious exclusion of
contractors from the FTCA. See, e.g., Saleh, 580 F.3d
at 21–23 (Garland, J., dissenting). But as the Solicitor
General explained at an earlier stage of this litigation,
“[t]hat concern . . . is more appropriately addressed
through [Boyle-like] preemption, not the political-question
doctrine.” Brief for the United States as Amicus Curiae
at 11, KBR, Inc. v. Metzgar, 135 S. Ct. 1153 (2015) (mem.)
(No. 13-1241) [“Burn Pit III U.S. Invitation Brief”]. And
Baker itself was clear on this point: Unless one of the six
factors Baker identified “is inextricable from the case at
bar, there should be no dismissal for non-justiciability on
the ground of a political question’s presence.” 369 U.S.
at 217.
This Court has long emphasized the judiciary’s core
“responsibility to decide cases properly before it, even
those ‘it would gladly avoid.’” Zivotofsky I, 566 U.S. at
194–95 (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.)
264, 404 (1821)). The political question doctrine is, and
always has been, “a narrow exception to that rule.” Id.
at 195. By extending it to encompass ordinary tort suits
against private defendants that do not satisfy the Baker
factors, the lower-court rulings in these cases, including
the Fourth Circuit’s decision here, risk converting the
“narrow exception” into the rule. It is therefore incumbent
upon this Court to reassert the exhaustiveness of the
Baker factors and the exceptionalism of the political
5
question doctrine—and this case provides an ideal vehicle
through which to do so.
Opinions Below
The Fourth Circuit’s decision is reported at 893 F.3d
241 (4th Cir. 2018), and reprinted in the Appendix at Pet.
App. 1a. The district court’s decision is reported at 268 F.
Supp. 3d 778 (D. Md. 2017), and reprinted in the Appendix
at Pet. App. 48a.
Jurisdiction
The Fourth Circuit delivered its judgment in this
case and issued an opinion respecting that judgment on
June 20, 2018. On July 26, 2018, the Court of Appeals
denied Petitioners’ timely petition for rehearing en banc.
Id. at 149a. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
Constitutional and Statutory
Provisions Involved
The Federal Tort Claims Act (FTCA) excludes from
its scope “any contractor with the United States.” 28
U.S.C. § 2671.
Statement of the Case
“Since the United States began its military operations
in Afghanistan and Iraq in 2001 and 2003, respectively, its
use of private contractors to support its mission has risen
to ‘unprecedented levels.’ At times, the number of contract
employees has exceeded the number of military personnel
alongside whom they work in these warzones.” Pet. App.
23a. As relevant here, Respondents were awarded a 10year contract—the Logistics Civil Augmentation Program
III (“LOGCAP III”)—to provide waste management and
water services at forward operating bases in numerous
6
countries, including Afghanistan and Iraq. See id. At many
of those installations, Respondents disposed of waste
using open-air “burn pits.” Id.
Petitioners—U.S. military personnel, their families,
and others—filed a series of lawsuits, some of them class
actions, alleging that Respondents “failed to properly
handle and incinerate waste by ‘burn[ing] vast quantities
of unsorted waste in open air burn pits with no safety
controls,’” and “provided contaminated water to military
forces” after failing to “perform water quality tests or
ensure that water contained proper levels of chlorine
residual.” In re KBR, Inc., Burn Pit Litig. (“Burn Pit
III”), 744 F.3d 326, 332 (4th Cir. 2014) (alteration in
original). The complaints plead a series of state-law claims
arising from Respondents’ alleged misconduct, including
negligence, breach of contract, battery, and intentional
infliction of emotional distress.
In October 2009, the Judicial Panel on Multidistrict
Litigation transferred all of the cases to the U.S. District
Court for the District of Maryland for consolidated pretrial proceedings. In the district court, Respondents
moved to dismiss Petitioners’ claims, arguing that (1)
they presented a non-justiciable political question; (2)
“derivative sovereign immunity” based upon the FTCA’s
discretionary function exception barred the claims; and
(3) the FTCA’s combatant activities exception preempts
(and forecloses) Petitioners’ state-law claims.
In In re KBR, Inc., Burn Pit Litig. (“Burn Pit I”), 736
F. Supp. 2d 954 (D. Md. 2010), the district court denied
Respondents’ motion to dismiss without prejudice, holding
that it did not have enough information, based solely on
the facts as alleged in Petitioners’ complaint, to adjudicate
7
Respondents’ defenses. Instead, the court ordered the
parties to submit a joint plan for limited jurisdictional
discovery. Id. at 979. While those proceedings were
ongoing, the Fourth Circuit issued three relevant
decisions—Al Quraishi v. L-3 Services, Inc., 657 F.3d 201
(4th Cir. 2011), Taylor, 658 F.3d 402, and Al Shimari I, 658
F.3d 413.1 In light of those rulings, Respondents renewed
their motion to dismiss, providing a series of additional
exhibits and declarations.
In In re KBR, Inc., Burn Pit Litig. (“Burn Pit II”),
925 F. Supp. 2d 752 (D. Md. 2013), the district court
granted Respondents’ motion to dismiss, concluding
that the political question doctrine, derivative sovereign
immunity, and the FTCA’s combatant activities exception
each provided an independent basis on which to dismiss
Petitioners’ claims. The Fourth Circuit reversed the
district court in Burn Pit III, holding that the record
was not sufficiently developed at the motion-to-dismiss
stage to support any of the district court’s conclusions.
744 F.3d at 331–32. After calling for—and receiving—the
1. Taylor held that the political question doctrine barred a
servicemember’s negligence claim against a contractor arising
out of an electric shock. Al Shimari I held that torture claims by
detainees at Abu Ghraib against a contractor were preempted by
the combatant activities exception to the FTCA. And Al Quraishi
held that a district court’s denial of the preemption defense
recognized in Al Shimari I was immediately appealable under
the collateral order doctrine.
In Al Shimari v. CACI International, Inc. (“Al Shimari II”),
679 F.3d 205 (4th Cir. 2012) (en banc), the full Court of Appeals
overruled Al Quraishi and vacated Al Shimari I, holding that
denials of motions to dismiss asserting FTCA preemption
defenses are not immediately appealable under the collateral
order doctrine. The Taylor plaintiffs did not seek en banc review.
8
views of the Solicitor General, KBR, Inc. v. Metzgar, 134
S. Ct. 2833 (2014) (mem.), this Court denied Respondents’
petition for certiorari seeking review of that ruling. See
Metzgar, 135 S. Ct. 1153.
On remand, the district court allowed limited
ju r isd ict iona l d iscover y focused exclusively on
Respondents’ political question and FTCA preemption
defenses. To the former, the district court centered its
analysis on “[t]he degree to which the military controlled
[Respondents’] performance of the contracts.” To the
latter, the court centered its analysis on “[t]he degree
to which [Respondents were] integrated into military
command.” Pet. App. 65a. The discovery took the better
part of two years to complete, yielding over 5.8 million
pages of documents, including almost a million pages of
contract documents, and 34 witness depositions. Id. At the
conclusion of the jurisdictional discovery, Respondents
renewed their motion to dismiss.
After an evidentiary hearing, in In re KBR, Inc.,
Burn Pit Litig. (“Burn Pit IV”), Pet. App. 48a, the district
court granted Respondents’ motion, holding that, in light
of the evidence adduced through jurisdictional discovery,
Petitioners’ claims presented a non-justiciable political
question, and were in any event preempted by the FTCA’s
combatant activities exception. The district court’s ruling
was premised on a series of factual findings all tending to
establish “the military’s plenary control over the operation
of the burn pits.” Id. at 29a. But the court also noted that
the military “determined that hazardous materials were
‘to be segregated and disposed of by a method other than
surface burning’ and [were] ‘not authorized to be placed
in burn pits.’” Id.
9
On appeal, in In re KBR, Inc., Burn Pit Litig. (“Burn
Pit V”), Pet. App. 1a, the Fourth Circuit affirmed in part
and vacated in part. Relying upon its earlier decision in
Taylor, 658 F.3d 402, the Court of Appeals held that a
state-law tort suit against a private military contractor
presents a non-justiciable political question if “either (1)
the military exercised direct control over the contractor,
or (2) ‘national defense interests were closely intertwined
with the military’s decisions regarding [the contractor’s]
conduct.’” Pet. App. 37a. With regard to Petitioners’
complaint, specifically, the Court of Appeals held that
the first of these prongs was satisfied because the record
created by the district court demonstrated that the
military exercised “plenary” and “actual” control over
Respondents. Id. at 40a–46a.
The military’s control over Respondents was “plenary,”
according to the Court of Appeals, because “it not only
directed to [Respondents] ‘what’ must be done but also
prescribed ‘how’ [Respondents] must accomplish those
tasks.” Id. at 40a; see also id. (“Additionally, the military
exercised plenary control over where to construct the burn
pits, what could or could not be burned, when KBR could
operate the burn pits, how high the flames should be, and
how large each burn should be.”).
As for whether the military “actually” exercised
control over Respondents, the Court of Appeals held that
“the military exercised extensive control and oversight
over [Respondents’] burn pit operations and water
services.” Id. at 41a. And although the Fourth Circuit
acknowledged Petitioners’ argument that Respondents
had no authority to dispose of hazardous materials in
burn pits, it held that “a few instances of non-specific
allegations do not amount to the type of systematic failure
10
of oversight and lack of command presence” that would
require a contrary holding. Id. at 45a.
Because the Court of Appeals held that Petitioners’
claims were non-justiciable under the first prong of
Taylor, it did not reach the second prong. Id. at 46a.
The Court of Appeals also vacated as moot the district
court’s alternative holding—that Petitioners’ claims were
preempted by the FTCA’s combatant activities exception.
Id. at 46a–47a. Thus, the Fourth Circuit affirmed the
district court’s dismissal of Petitioners’ claims based solely
on its legal conclusion that a private tort suit against a
military contractor over which the military exercises
“direct control” presents a non-justiciable political
question, and its factual conclusion that such control was
present here. See id.
Petitioners unsuccessfully sought rehearing en
banc, arguing that the Court of Appeals’ decision was
inconsistent with Taylor—and that, insofar as it was
not, Taylor itself is fundamentally inconsistent with this
Court’s political question doctrine jurisprudence. This
petition followed.
Reasons for Granting the Petition
Certiorari is warranted for two independent reasons:
First, whether the political question doctrine applies
to any tort claims for damages against government
contractors over whom the military exercises “direct
control” presents “an important question of federal law
that has not been, but should be, settled by this Court.”
S. Ct. R. 10(c).
Second, even if the answer to the first question is
“yes,” “there is no uniformity” among lower courts as
11
to the types of state-law tort claims against private
military contractors that are—and are not—justiciable.
McManaway v. KBR, Inc., 554 F. App’x 347, 352 (5th Cir.
2014) (Jones, J., dissenting from the denial of rehearing
en banc); see also Freeman, 2018 WL 3207134, at *11
(Guzman, J., dissenting) (noting the numerous differences
in how the political question doctrine has been applied
by lower courts in such cases). As Respondents argued
in seeking this Court’s review of the Fourth Circuit’s
ruling in Burn Pit III, “the courts of appeals are sharply
divided over how to apply the political question doctrine
to state-law tort claims against battlefield contractors.”
Petition for a Writ of Certiorari at 25, Metzgar, 135 S. Ct.
1153 (No. 13-1241) [“Burn Pit III Petition”]. In addition
to providing an independent basis for certiorari, S. Ct. R.
10(a), this division among the lower courts is, to a large
degree, further evidence of the difficulties that arise from
applying the political question doctrine to these cases in
the first place.
I.
The Political Question Doctrine Does Not Bar
Tort Claims Against P rivate Defendants O ver
Whom the Military Exercises “Direct Control”
In Baker, this Court identified six general factors for
courts to analyze in considering whether specific claims
present non-justiciable political questions—“elements
which identify [the doctrine] as essentially a function of
the separation of powers.” 369 U.S. at 217. As the Court
explained, “[p]rominent on the surface of any case held
to involve a political question is found”:
[1] a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or [2] a lack of judicially discoverable
12
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.
Id. The factors were meant to be exhaustive: “Unless one
of these formulations is inextricable from the case at bar,
there should be no dismissal for non-justiciability on the
ground of a political question’s presence. The doctrine of
which we treat is one of ‘political questions,’ not one of
‘political cases.’” Id.
Over the course of almost six decades, this Court has
continued to hew closely to Baker’s narrow framing. To
that end, “[t]he political question doctrine has occupied a
more limited place in the Supreme Court’s jurisprudence
than is sometimes assumed.” El-Shifa Pharm. Indus. Co.
v. United States, 607 F.3d 836, 856 (D.C. Cir. 2010) (en
banc) (Kavanaugh, J., concurring in the judgment). Indeed,
this Court has “invoked the political question doctrine
only in cases alleging violations of the Constitution,” and
only on two occasions since Baker. Id.
Against that backdrop, the lower-court rulings
applying the political question doctrine to bar statelaw tort claims against private military contractors are
incompatible with Baker in both form and substance.
Not only do such claims fail to satisfy any of the Baker
13
factors, but the litigation they have precipitated to decide
if the political question doctrine applies in the first place
is antithetical to its very purpose.
a.
Petitioners’ State-Law Tort Claims Do Not
Satisfy Any Baker Factors
In each of the leading circuit-level decisions applying
the political question doctrine to state-law tort claims for
damages against private military contractors, the court of
appeals nodded toward Baker, and attempted to explain
which of the Baker factors such claims implicate. For
example, in Taylor, the Fourth Circuit (briefly) concluded
that the case satisfied the second and fourth of the six
Baker factors—because it lacked judicially discoverable
and manageable standards, and because independent
judicial resolution of the dispute would express a lack of
the respect due to coordinate branches of government.
658 F.3d at 412 n.13.
And in Carmichael, the Eleventh Circuit also
suggested that such suits implicated the first Baker
factor—by raising a claim the adjudication of which is
textually committed to the political branches. 572 F.3d at
1281–83. On closer inspection, however, Petitioners’ claims
do not implicate any of those factors. If anything, this case
helps to illustrate exactly how poorly state-law tort claims
against private military contractors map onto Baker.
1.
“Textually Demonstrable Commitment”
No specific constitutional provision commits the
adjudication of tort suits against private military
contractors—even those implicating “actual, sensitive
judgments made by the military,” Taylor, 658 F.3d at 411—
to the political branches. Early in the Hamdi litigation (and
nine years before Taylor), the Fourth Circuit rejected the
14
federal government’s argument that the military detention
of U.S. citizens captured on a foreign battlefield presented
a non-justiciable political question, see Hamdi v. Rumsfeld,
296 F.3d 278, 283 (4th Cir. 2002), a conclusion that this
Court emphatically reinforced on appeal. See Hamdi, 542
U.S. at 535 (plurality opinion) (“[W]e necessarily reject
the Government’s assertion that separation of powers
principles mandate a heavily circumscribed role for the
courts in such circumstances.”); see also id. at 541 (Souter,
J., concurring in part, dissenting in part, and concurring
in the judgment) (“The plurality rejects any such limit
on the exercise of habeas jurisdiction and so far I agree
with its opinion.”).
If no textually demonstrable commitment prevents
federal courts from reviewing highly classified intelligence
reports to ascertain whether a non-citizen terrorism
suspect is properly subject to military detention, see, e.g.,
Latif, 677 F.3d 1175, no similar commitment could divest
federal courts of the power to adjudicate state-law tort
suits against private defendants—whether they arose on
the battlefield or off. Cf. Zaidan v. Trump, No. 17-581,
2018 WL 2976006 (D.D.C. June 13, 2018) (holding that
the political question doctrine does not foreclose a U.S.
citizen’s challenge to the constitutionality of his alleged
inclusion on a drone-strike “kill list”). 2
2. Gilligan v. Morgan, 413 U.S. 1 (1973), underscores this
conclusion. Although this Court held in that case that a lawsuit
seeking to impose continuing judicial supervision over the training,
weaponry, and standing orders of the Ohio National Guard after
the Kent State shooting presented a non-justiciable political
question, it emphasized that “we neither hold nor imply that the
conduct of the National Guard is always beyond judicial review,”
id. at 11, and that the case would have presented “wholly different
issues” if it had sought damages arising from a “particular factual
setting.” Id. at 14 (Blackmun, J., concurring).
15
Nor do the other circuit rulings on which the Fourth
Circuit relied identify such a textually demonstrable
commitment. Instead, all of these analyses proceeded
from the flawed assumption that, because private tort
suits for damages would present political questions if
they were brought directly against the military, it must
follow that they are similarly non-justiciable when private
defendants are acting pursuant to government direction.
See, e.g., Carmichael, 572 F.3d at 1281–83.
This analogy fails in its premise. Tort claims against
the military are not generally barred by the political
question doctrine; instead, they typically encounter
a series of distinct obstacles, foremost among them
sovereign immunity—and the exceptions to the Federal
Tort Claims Act for torts committed in foreign countries,
28 U.S.C. § 2680(k); torts arising out of combat activities,
id. § 2680(j); or torts arising out of, or incident to, a
servicemember’s military service. See Feres, 340 U.S. 135.
Whatever the scope and contours of these more specific
immunities and defenses, they would hardly be necessary
if, as these lower court decisions have incorrectly assumed,
the Constitution exclusively commits the resolution of all
such disputes to the political branches.
2.
“Judicially Manageable Standards”
Nor is it the case that tort suits against private military
contractors present a lack of judicially discoverable
or manageable standards. Certainly, whether specific
Ten months later, the Court unanimously allowed a damages
suit arising out of the same incident to go forward. See Scheuer
v. Rhodes, 416 U.S. 232, 249 (1974). Thus, the political question at
issue in Gilligan arose from the relief the plaintiffs sought, not the
nature of the military action they challenged. See Koohi v. United
States, 976 F.2d 1328, 1331–32 (9th Cir. 1992).
16
conduct is reasonable under the circumstances will depend
heavily upon the actual facts presented, but that goes to
the analytical difficulty of resolving the claim, not the
court’s lack of constitutional competence to do so. E.g.,
Al Shimari v. CACI Premier Tech., Inc. (“Al Shimari
IV”), 840 F.3d 147, 162 (4th Cir. 2016) (courts should not
“question[] the justiciability of a case merely because the
case involves the need to define [vague] terms”).
A case only presents a lack of judicially discoverable or
manageable standards—and thereby satisfies the second
Baker factor—when it leaves courts “truly rudderless”
in seeking to resolve plaintiffs’ claims. Zivotofsky I, 566
U.S. at 204 (Sotomayor, J., concurring); see also Vieth,
541 U.S. at 278 (plurality opinion) (“[L]aw pronounced
by the courts must be principled, rational, and based
upon reasoned distinctions.”). There is nothing “truly
rudderless” or irrational about ascertaining whether
Respondents’ alleged misconduct breached the controlling
federal contracts and rose to the level of liability under
the relevant state-law tort principles. 3
To be sure, the apportionment of responsibility and
liability as between a private military contractor and the
government may raise its own difficult factual and legal
3. In concluding to the contrary in Carmichael, the Eleventh
Circuit asserted that, where military decisions are involved, “we
are without any manageable standards for making reasoned
determinations regarding . . . fundamental elements of negligence
claims.” 572 F.3d at 1288. That reasoning mistakes differences
in standards for the absence of them. That elements such as
duty, breach, and reasonableness will necessarily vary based
upon the circumstances hardly renders them “truly rudderless”
or irrational. See, e.g., McMahon v. Presidential Airways, Inc.,
502 F.3d 1331, 1362 (11th Cir. 2007) (“The flexible standards
of negligence law are well-equipped to handle varying fact
situations.”).
17
questions, but no more so than in any case in which any
contractor seeks indemnification from the government
for actions it claims the contract compelled. And in that
context, the same lower courts have (properly) shown far
less willingness to apply the political question doctrine.
See, e.g., Kuwait Pearls Catering Co., WLL v. Kellogg
Brown & Root Servs., Inc., 853 F.3d 173, 178–84 (5th
Cir. 2017). Instead, the difficult questions in such cases
tend to center on the applicability of sovereign immunity
principles derived from Feres. See, e.g., Hercules Inc. v.
United States, 516 U.S. 417, 425–30 (1996); Stencel Aero
Eng’g Corp. v. United States, 431 U.S. 666, 673 (1977).
As for whether a private military contractor is actually
liable for the alleged state-law torts, the Fourth Circuit
has correctly emphasized that a suit that “allege[s] familiar
torts based on long-standing common law principles” does
not present a political question—even if “the substantive
law applicable to the present claims may be unfamiliar and
complicated in many respects.” Al Shimari IV, 840 F.3d
at 161; see also McManaway, 554 F. App’x at 351 (Jones,
J., dissenting from the denial of rehearing en banc) (“A
negligence claim in any jurisdiction requires proof of the
same elements: duty, breach, causation and damages.”).
There is no reason to believe that courts would be “truly
rudderless” if left to apply ordinary state tort principles
to Respondents’ conduct.4
4. Boyle itself reinforces this conclusion. In articulating the
foundation of the “contractor defense” relied upon by the D.C.
Circuit in Saleh and the district court here, this Court specifically
held that federal courts have the authority and the ability to craft
their own (presumably manageable) standards to govern when
federal law should and should not displace state tort law. See 487
U.S. at 507–08 & n.3.
18
3.
“Respect Due Coordinate Branches”
Nor would judicial resolution of state-law tort claims
against private military contractors show a “lack of
the respect due coordinate branches of government.”
Baker, 369 U.S. at 217. After all, as the Third Circuit has
explained, “[d]efense contractors . . . are not coordinate
branches of government to which we owe deference.”
Harris, 724 F.3d at 465.
But even if such deference could ever be justified
solely by the government’s background involvement, the
“lack of respect” with which this Court was concerned in
Baker involved circumstances in which courts were asked
to second-guess internal structural decisions made by the
political branches, not whether private parties, whatever
their relationship with the government, committed
common-law torts. See, e.g., Zivotofsky I, 566 U.S. at 207
(Sotomayor, J., concurring). To that end, “it will be the
rare case in which Baker’s final factors alone render a
case nonjusticiable.” Id.; see also Harbury v. Hayden, 522
F.3d 413, 418 (D.C. Cir. 2008) (noting that the first two
Baker factors “are the most important”). State-law tort
suits against private military contractors are not such
rare cases.
b.
The Litigation These Lower-Court Decisions
Require Is Antithetical to the Political
Question Doctrine
The conclusion that claims such as those at issue
here are a poor fit for the political question doctrine is
illustrated not only by their incompatibility with Baker’s
factors, but by the volume of litigation in which the lower
courts engaged to decide whether the doctrine properly
applied to Petitioners’ claims in the first place. As the
Third Circuit explained in Harris, “when deciding
19
whether a case presents a political question, we rarely
need to look beyond the complaint and any of its obvious
implications. This is not so with complaints against defense
contractors.” 724 F.3d at 465. Instead, “courts must apply a
particularly discriminating inquiry into the facts and legal
theories making up the plaintiff’s claims as well as the
defendant’s defenses.” Id. at 466; see also Lane, 529 F.3d
at 565 (“We must look beyond the complaint, considering
how the Plaintiffs might prove their claims and how KBR
would defend.”). Such litigation is necessary under these
precedents because, unlike the typical political question
case, “[i]n these situations, the political question appears
not from the plaintiff’s claims but from the broader context
made relevant by a contractor’s defenses.” Harris, 724
F.3d at 465–66.
The procedural history of this case underscores
exactly how much litigation such a “discriminating
inquiry” can necessitate. After five years of litigation
and two different district court rulings on Respondents’
motions to dismiss, the Fourth Circuit in Burn Pit III
reversed the district court’s dismissal of Petitioners’
complaints because “the record was not sufficiently
developed to support the district court’s decision.” Pet.
App. 58a. The “limited” jurisdictional discovery that
ensued took well over two years to complete, culminating
in the production of over 5.8 million pages of documents
and in 34 witness depositions. See id. at 65a.
This Court has described the political question
doctrine as encompassing a category of legal decisions
that “the Judiciary is particularly ill suited to make,”
Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S.
221, 230 (1986); see also, e.g., Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774, 803 n.8 (D.C. Cir. 1984) (Bork, J.,
concurring) (the political question doctrine is meant “to
20
prevent courts from reaching the merits of issues that,
for a variety of reasons, are not theirs to decide”). It is
difficult to reconcile that understanding of the purpose
of the political question doctrine with applications of the
doctrine that can require a district court to undertake
years of exhaustive, fact-intensive, and time-consuming
litigation (to say nothing of the interlocutory appeals that
will inexorably follow) before it can ascertain whether or
not particular claims are “justiciable” in the first place.
In unsuccessfully asking this Court to review the
Fourth Circuit’s decision in Burn Pit III, Respondents
argued that the Court of Appeals’ “merits-based approach
to the political question doctrine” was in conflict with
the Eleventh Circuit’s framework as articulated in
Carmichael. See Burn Pit III Petition, supra, at 26.
Petitioners certainly agree that there are meaningful
differences in how the lower courts have applied the
political question doctrine to tort claims against private
military contractors. See Part II, infra.
But the larger problem with this “merits-based
approach” is not the differences in how the lower courts
have applied it, but the extent to which it demonstrates
how all of these lower-court rulings are in conflict with the
political question doctrine itself. “At best, this approach
offers only the illusion of deference and respect by
substituting impressionistic assessment for constitutional
analysis.” Nixon v. United States, 506 U.S. 224, 251 n.4
(1993) (White, J., concurring in the judgment). This Court’s
intervention is therefore warranted to correct the lower
courts’ growing departure from the political question
doctrine’s jurisprudential and analytical underpinnings.
21
II. I n D etermining When the Political Q uestion
Doctrine Bars Such Suits , Lower Courts H ave
Adopted an Array of Differing A pproaches
If, contra the above analysis, this Court believes that
there are at least some private tort claims against private
military contractors that are foreclosed by the political
question doctrine, certiorari is nevertheless warranted
in the alternative to unify the divergent approaches of
lower courts with respect to which claims are so barred—
and why. It is no exaggeration to conclude, as four Fifth
Circuit judges have, that “among the circuits, there is no
uniformity.” McManaway, 554 F. App’x at 352 (Jones, J.,
dissenting from the denial of rehearing en banc). Indeed,
Respondents made this very argument four years ago
in seeking this Court’s review of Burn Pit III. See Burn
Pit III Petition, supra, at 25 (“[T]he courts of appeals are
sharply divided over how to apply the political question
doctrine to state-law tort claims against battlefield
contractors.”). Thus, whereas Petitioners believe that the
political question doctrine should not apply to state-law
tort claims against non-governmental defendants at all,
this Court’s intervention is warranted, at a minimum, to
clarify when and how it should.
a.
The Choice-of-Law Conflict
As noted above, five different courts of appeals—the
Third, Fourth, Fifth, Ninth, and Eleventh Circuits—have
identified at least some circumstances in which the political
question doctrine should bar judicial consideration of a
state-law tort claim against a private military contractor.
But the specifics of their approaches differ in some
meaningful ways, especially with regard to the relevance
vel non of choice-of-law analysis.
22
In Harris, for example, the Third Circuit held that,
whether state-law tort claims against private military
contractors present a non-justiciable political question
may depend at least to some degree on which state’s tort
law governs—not because of the differing elements of
state tort law, but because of differences in the scope of
particular defenses. If the applicability of the political
question doctrine turns on whether courts will have to
second-guess judgments by the military, then how state
tort law apportions responsibility (and liability) between
the contractor and the military becomes directly relevant.
Thus, in that case,
If Pennsylvania law applies, then this case lacks
any nonjusticiable issues and may proceed. But
if either Tennessee or Texas law applies, then
the case contains nonjusticiable issues. At the
least, in that situation, the District Court will
need to eliminate any damages that are based
on proportional liability but allow the case to
move forward to provide such other remedies
as may exist.
724 F.3d at 482. Remand was therefore appropriate for
the district court to conduct a more specific choice-of-law
analysis before deciding whether the political question
doctrine applied. See id.
“As a result, some claims may be justiciable, while
others are not, depending solely on differing states’ laws.”
McManaway, 554 F. App’x at 352 (Jones, J., dissenting
from the denial of rehearing en banc). The Fourth and
Fifth Circuits have expressly adopted this understanding.
See Burn Pit III, 744 F.3d at 340 & n.4; McManaway v.
KBR, Inc., No. 12-20763, 2013 WL 8359992, at *1 (5th Cir.
23
Nov. 7, 2013) (mem.) (“Until a determination is made on
the controlling law, we are unable to decide here whether
the political question doctrine prevents the plaintiffs from
asserting their claims.”).
In contrast, the Eleventh Circuit has suggested that
choice-of-law questions should generally have little bearing
on the political question analysis. In Carmichael, for
example, the court suggested that its analysis of whether
plaintiffs’ negligence claims implicated the political
question doctrine “would remain the same regardless
of which state’s law applied.” 572 F.3d at 1288 n.13. The
four-judge dissent in McManaway embraced this view.
554 F. App’x at 352 (Jones, J., dissenting from the denial
of rehearing en banc). But it also stressed that, “[e]ven if
the Supreme Court were to decide that, indeed, courts
must first ascertain the choice of state law to complete
the political question analysis, at least there would be a
uniform decision-making apparatus and a way to hasten
resolution of these cases. Now, among the circuit courts,
there is no uniformity.” Id.
b.
The Procedural Posture Conflict
Whereas the dispute among the federal courts
of appeals goes to whether choice-of-law analysis is
necessary before deciding whether the political question
doctrine applies, the federal courts are all in apparent
agreement that a contractor’s defense must actually give
rise to what they understand to be a political question
before dismissal would be appropriate.
In Freeman, however, the Texas Supreme Court
departed from even that problematic approach, dismissing
as a political question a state-law tort suit against a private
military contractor based solely upon the contractor’s
24
untested assertion that the military—and not the
contractor—proximately caused the plaintiff’s injuries.
See 2018 WL 3207134, at *8. 5 That reasoning provoked
separate dissents from Justices Guzman and Devine, who
each argued that the majority had departed from these
circuit precedents—and thereby expanded the political
question doctrine to apply even in cases in which the
military was not in fact responsible for the underlying
tort. See id. at *15 (Devine, J., dissenting) (“Even if
the Court’s view of that doctrine is otherwise right,
its application here throws out cases where unproven,
disputed factual allegations affect whether the doctrine
is, in fact, implicated. That, in my view, throws the baby
out with the bathwater.”); see also id. at *11 (Guzman, J.,
dissenting).
Freeman not only deepens the inconsistency with
respect to how lower courts have applied the political
question doctrine to state-law tort claims against private
military contractors, but it also underscores the urgency
of this Court’s intervention sooner, rather than later.
Even if there are some state-law tort claims against
private military contractors to which the political question
doctrine does and should apply, but see Part I, supra,
allowing such claims to be resolved based merely upon
the contractor’s unchallenged assertion of military control
would turn the political question doctrine entirely on its
head.
5. Although the Freeman majority claimed that it was applying
the political question doctrine “as required for the separation of
powers mandated by the Texas Constitution,” 2018 WL 3207134,
at *4, it looked to federal constitutional provisions and federal
case law purporting to interpret those provisions in applying the
doctrine. See id. at *4–7.
25
III. This Petition is an Ideal Vehicle for Resolving the
Question Presented
Finally, the posture of this case renders it an ideal
vehicle through which to decide the question presented.
Although a number of courts, like the district court in this
case, have applied the political question doctrine alongside
other defenses or immunities to dismiss state-law tort
suits against private military contractors, the Court of
Appeals’ ruling here rests solely on the political question
doctrine. And it does so after a decade of litigation, a prior
appeal to the Fourth Circuit, and three different rulings
on motions to dismiss by the district court.
Thus, whereas this Cour t’s inter vention was
necessarily premature three years ago (when Respondents
simultaneously sought certiorari in Harris, Burn Pit III,
and McManaway), this case is the first one in which,
after a district court conducted detailed jurisdictional
discovery, the entire dispute was nevertheless thrown
out on political question grounds. If this Court believes
that either (1) the political question doctrine should not
apply to such cases in general; or (2) the lower courts have
adopted materially inconsistent approaches to when and
how it should, nothing would prevent using the decision
below as an appropriate opportunity for clarification.
***
“[W]hen a federal court has jurisdiction, it also
has a ‘virtually unflagging obligation . . . to exercise’
that authority.’” Mata v. Lynch, 135 S. Ct. 2150, 2156
(2015) (quoting Colo. R. Water Conservation Dist. v.
United States, 424 U.S. 800, 817 (1976)). State-law tort
suits arising out of tortious conduct by private military
contractors overseas may well present difficult merits
questions—including whether courts should imply a
26
judge-made “battlefield preemption” doctrine to bar such
claims. Saleh, 580 F.3d at 7. But “[t]hat concern . . . is more
appropriately addressed through [Boyle-like] preemption,
not the political-question doctrine.” Burn Pit III U.S.
Invitation Brief, supra, at 11. After all, federal courts
“have no more right to decline the exercise of jurisdiction
which is given, than to usurp that which is not given. The
one or the other would be treason to the Constitution.”
Cohens, 19 U.S. (6 Wheat.) at 404.
Conclusion
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
Stephen I. Vladeck
727 East Dean Keeton Street
Austin, TX 78705
(512) 475-9198
Frederick C. Baker
Lisa Marie Saltzburg
James W. Ledlie
Motley Rice, LLC
28 Bridgeside Boulevard
Mount Pleasant, SC 29464
(843) 216-9000
Susan L. Burke
Counsel of Record
Law Offices of
Susan L. Burke
1611 Park Avenue
Baltimore, MD 21217
(410) 733-5444
sburke@burkepllc.com
Counsel for Petitioners
September 7, 2018
APPENDIX
1a
Appendix
A APPEAl OF ThE
APPENdIX A — dENIAl
OF
uNITEd sTATEs COuRT OF APPEAls FOR ThE
FOuRTh CIRCuIT, FIlEd JuNE 20, 2018
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1960
In re: KBR, INC., Burn Pit Litigation.
––––––––––––––––––––––––––––––
ALAN METZGAR, RwT 09-744; PAUL PARKER, and
all others similarly situated: RwT 09-744; JOSHUA
ELLER, RwT 09-2748; JOANNE OCHS, RwT 092747; MELISSA OCHS, RwT 09-2747; JAMES
MORGAN, RwT 09-2747; DAVID NEwTON, RwT
09-2747; CHRIS BOGGIANO, RwT 09-2747; EARL
CHAVIS, RwT 09-2747; BENNY LYLE REYNOLDS,
RwT 09-2747; ALBERT PAUL BITTEL, III, RwT
09-2745; MICHAEL DOUGLAS MOORE, and all
others similarly situated: RwT 09-2742; DAVID U.
LACKEY, RwT 09-2743; RANDALL L. ROBINSON,
and all others similarly situated: RwT 09-2743;
MICHAEL AUw, and all others similarly situated:
RwT 09-2741; CORY CASALEGNO, and all others
similarly situated: RwT 09-2741; RICHARD RONALD
GUILMETTE, and all others similarly situated: RwT
09-2739; wILLIAM G. BRISTER, JR., and all others
similarly situated: RwT 09-2740; HENRY J. O’NEILL,
and all others similarly situated: RwT 09-2740; SMSGT
GLEN S. MASSMAN, and all others similarly situated:
2a
Appendix A
RwT 09-2750; SSGT wENDY L. MCBREAIRTY, and
all others similarly situated: RwT 09-2750; DEAN
GUY OLSON, and all others similarly situated: RwT
09-2744; ROBERT CAIN, RwT 09-2749; CRAIG
HENRY, RwT 09-2749; FRANCIS JAEGER, RwT 092749; DAVID MCMENOMY, RwT 09-2749; MARK
POSZ, RwT 09-2749; EL KEVIN SAR, and all others
similarly situated: RwT 09-2749; MAURICE
CALLUE, RwT 09-2980; DENNIS wAYNE BRIGGS,
RwT 09-2980; EDwARD LEE BUQUO, RwT 09-2980;
wAYNE E. FABOZZI, RwT 09-2980; SHARLENE S.
JAGGERNAUTH, RwT 09-2980; FLOYD JAMES
JOHNSON, SR., RwT 09-2980; TAMRA C. JOHNSON,
RwT 09-2980; RICHARD LEE KEITH, RwT 092980; DANIEL SANTIAGO MORALES, RwT 092980; PHILLIP MCQUILLAN, RwT 09-2980;
ILDEBBRANDO PEREZ, RwT 09-2980; LUIGI
ANTONIO PROVENZA, RwT 09-2980; RUTH ANN
REECE, RwT 09-2980; EDUARDO SAAVEDRA, SR.,
RwT 09-2980; JILL R. wILKINS, personal
representative of Kevin E. wilkins, deceased: RwT
09-2980; MICHAEL DONNELL wILLIAMS, RwT
09-2980; JERMAINE LYNELL wRIGHT, and all
others similarly situated: RwT 09-2980; BENJAMIN
BOEKE, RwT 09-2984; CRAIG KERVIN, RwT 092984; BARRY ZABIELINSKI, RwT 09-2984; PABLO
BERCHINI, RwT 09-2979; BRIAN P. ROBINSON,
RwT 09-2979; DAVID GREEN, RwT 09-2985; NICK
DANIEL HEISLER, RwT 09-2985; JOHN DOE, sued
as John and Jane Does 1-1000 and all others similarly
situated: RwT 09-2985; JOHN A. wESTER, JR., RwT
09-2987; EDwARD ADAMS, personally and as a class
3a
Appendix A
representative for all others similarly situated: RwT
09-2981; KENNETH BALDwIN, personally and as a
class representative for all others similarly situated:
RwT 09-2981; DONNA wU, personally and as a class
representative for all others similarly situated: RwT
09-2981; JOHN DOES 1-1000, RwT 09-2981; JANE
DOES 1-1000, RwT 09-2981; KENNETH PAUL
ROBBINS, RwT 09-2983; BRIAN BLUMLINE, RwT
09-2983; ROBERT BIDINGER, RwT 09-2983;
UNKNOwN PARTIES, named as “all others similarly
situated”: RwT 09-2983; DERROL A. TURNER, RwT
09-2986; VINCENT C. MOSELEY, RwT 09-2986;
ALEX HARLEY, and all others similarly situated:
RwT 09-2986; FRED ROBERT ATKINSON, JR.,
RwT 09-2746; ROBYN SACHS, personal
representative of Christopher Sachs, deceased: RwT
09-2746; JENNIFER MONTIJO, RwT 09-2746;
STEPHEN FLOwERS, and all others similarly
situated: RwT 09-2746; wALLACE MCNABB, and all
others similarly situated: RwT 09-2982; PATRICK
CASSIDY, and all others similarly situated: RwT
09-3309; wILLIAM BARRY DUTTON, and all others
similarly situated: RwT 09-3309; CHRISTOPHER
MICHAEL KOZEL, and all others similarly situated:
RwT 09-3309; CHARLES HICKS, RwT 09-3305;
SEAN ALEXANDER STOUGH, and all others
similarly situated: RwT 09-3305; BILL JACK
CARLISLE, JR., and all others similarly situated:
RwT 09-3299; ANTHONY EDwARD ROLES, and all
others similarly situated: RwT 09-3299; DANNY
LAPIERRE, Individually and all others similarly
situated: RwT 09-2083; ANTHONY RAY JOHNSON,
4a
Appendix A
RwT 09-3313; DAVID MICHAEL ROHMFELD, RwT
09-3313; RICHARD MCANDREw, RwT 09-3310;
LORENZO PEREZ, and all others similarly situated:
RwT 09-3310; THOMAS KELLECK, RwT 09-3304;
DAN BOwLDS, RwT 09-3304; TONY ALLEN
GOUCKENOUR, RwT 09-3304; JOHN wILLIAM
JACKSON, RwT 09-3304; JOHN PETE TROOST,
RwT 09-3304; DEBORAH ANN wHEELOCK, and all
others similarly situated: RwT 09-3304; GEORGE
LUNDY, RwT 09-3303; EUNICE RAMIREZ, and all
others similarly situated: RwT 09-3301; MARCOS
BARRANCO, RwT 09-3300; JOEL LUGO, RwT
09-3300; SHAwN THOMAS SHERIDAN, RwT 093300; JAYSON wILLIAMS, and all others similarly
situated: RwT 09-3300; HEINZ ALEX DISCH, RwT
09-3312; JAMES MCCOLLEM, RwT 09-3312;
TRAVIS FIDELL PUGH, RwT 09-3312; THOMAS
OLSON, RwT 09-3315; BRIAN PAULUS, RwT 093315; PAUL MICHAEL wIATR, and all others
similarly situated: RwT 09-3315; LEE wARREN
JELLISON, JR., RwT 09-3302; JESSEY JOSEPH
PHILIP BACA, RwT 09-3311; DANIEL TIJERNIA,
and all others similarly situated: RwT 09-3311;
JOSHUA DAVID BEAVERS, RwT 09-3314; JOHN
AND JANE DOES 1-1000, RwT 09-3308; MATTHEw
JOEL FIELDS, RwT 09-3314; MICHAEL FOTH, and
all others similarly situated: RwT 09-3316; STEVEN
E. GARDNER, RwT 09-3314; KENNETH HARRIS,
RwT 09-3308; STEPHEN R. JONES, RwT 09-3314;
BRETT ANTHONY MAZZARA, and all others
similarly situated: RwT 09-3316; KEVIN SCOTT
TEwES, RwT 09-3314; KATHY VINES, RwT 09-
5a
Appendix A
3308; ANTHONY JEROME wILLIAMS, RwT 093308; HANS NICOLAS YU, RwT 09-3314; JEFFREY
MORGAN COX, and all others similarly situated: RwT
09-3306; JAMES wARREN GARLAND, and all others
similarly situated: RwT 09-3306; PETER BLUMER,
and all others similarly situated: RwT 10-389; SCOTT
ANDREw CHAMBERLAIN, and all others similarly
situated: RwT 10-389; TIMOTHY E. DIMON, and all
others similarly situated: RwT 10-389; wILLIAM
PHILIP KRAwCZYK, SR., and all others similarly
situated: RwT 10-389; SEAN JOHNSON, and all
others similarly situated: RwT 10-390; DAVID
ROUNDS, Personal representative of Andrew Ray
Rounds, deceased: RwT 10-388; LISA ROUNDS,
Personal representative of Andrew Ray Rounds,
deceased: RwT 10-388; ALBERT JOHNSON, JR.,
RwT 10-815; GENE BISHOP, RwT 10-814; PATRICK
BISHOP, RwT 10-814; SHERRY BISHOP, Individually
and as representative of the estate of Kirk A. Bishop:
RwT 10-814; GENE MATSON; GENE LEONARD
MATSON; TIMOTHY J. wATSON, RwT 10-1160;
DAVID JOBES, RwT 10-836; BETH OSHIRO
BURTON, RwT 10-3360; MICHELLE BROwN, RwT
11-336; JONATHAN LYNN, RwT 11-336; ANDREw
MASON, RwT 11-336; CHARLES KINNEY, RwT
11-337; MICHAEL MCCLAIN, RwT 11-338; BASIL
SALEM, RwT 11-1092; JUSTIN GONZALES, RwT
11-2634; MATTHEw GUTHERY, RwT 11-2635;
CHRISTOPHER LIPPARD, RwT 11-2635; DAVID
PARR, RwT 11-3292; JOHN FINBAR MONAHAN,
RwT 11-3542; AMANDA BRANNON, RwT 12-3070;
L. CHANDLER BRANNON, RwT 12-3070;
6a
Appendix A
ELIYAHU ARSHADNIA, RwT 13-1023, individually
and on behalf of the marital community with Simcha
Arshadnia; SIMCHA ARSHADNIA, RwT 13-1023,
individually and on behalf of the marital community
with Eliyahu Arshadnia; wILLIAM SIMMONS, RwT
13-1023, an individual; DAwN LUCIA, RwT 13-1023,
individually and on behalf of the Estate of Joseph
Lucia, deceased; DANIEL MEYER, RwT 13-1023,
individually and on behalf of the marital community
with Harmonie Meyer; HARMONIE MEYER, RwT
13-1023, individually and on behalf of the marital
community with Daniel Meyer; JOSE BURGOS, RwT
13-1023, individually and on behalf of the marital
community with Bethany Burgos; BETHANY
BURGOS, RwT 13-1023, individually and on behalf of
the marital community with Jose Burgos; STEPHEN
HOPPER, RwT 13-1023, an individual; STEVEN C.
SNEE, RwT 15-1568; VINCENT MOLINO, RwT
15-1568; LARRY ENGLE, RwT 15-1568; RAYMOND
CRUZ, RwT 15-1568; ANTONIO CLARK, RwT
15-1568; JAMES KNOUSE, JR., RwT 15-1568;
LESLIE SCOTT, RwT 15-1568; SCOTT HURT, RwT
15-1568; 176-459 JAMES JACKSON, RwT 15-1568;
JEFFREY DURHAM, RwT 15-1568; wILLIAM
AUSTIN DANIEL, RwT 15-1568, deceased; JOSEPH
COLLINS, RwT 15-1568; RACHEL GUTIERREZ,
RwT 15-1568; BRANDON SHOEMAKE, RwT 151568; STACIE MOSER, RwT 15-1568; ALBERT
ROBERTS, RwT 15-1568; JEFFREY wILKINS,
RwT 15-1568; wILLIAM EATON, RwT 15-1568;
TODD GRIMES, RwT 15-1568; GARY MORRIS, RwT
15-1568; MICHAEL GENAw, RwT 15-1568; JOSHUA
7a
Appendix A
KEPPLE, RwT 15-1568; wILLIS ROwE; JUSTIN
ACOSTA, RwT 15-3836; TRAVIS ADAMS, RwT
15-3836; LEON J. ALEXANDER, RwT 15-3836;
MICHAEL DEVINCENT AMICY, RwT 15-3836;
THOMAS ANDERSEN, RwT 15-3836; PATTI J.
ANDERSON, RwT 15-3836; PHILLIP A.
ANDERSON, RwT 15-3836; DOMINICK THOMAS
ANDREwS, RwT 15-3836; JULIO A. APODACA,
RwT 15-3836; ROSE MARIE APPLEwHITE, RwT
15-3836; FRANCISCO ARAQUE, RwT 15-3836;
ANTHONY L. ARRINGTON, RwT 15-3836; TRACY
L. ASHER, RwT 15-3836; MATTHEw K.
ASHwORTH, RwT 15-3836; RYAN L. ATTAR, RwT
15-3836; DUSTIN JEFFREY AUER, RwT 15-3836;
EVERETTE D. AVERY, JR., RwT 15-3836; JOHN
ALAN BACON, RwT 15-3836; SCOTT D. BAILEY,
RwT 15-3836; JESSE BAKER, RwT 15-3836;
LARRY BAKER, RwT 15-3836; STEVEN LEROY
BAKKEN, RwT 15-3836; MICHAEL DANIEL
BANKS, RwT 15-3836; ANGELA VANETTE
BARNES, RwT 15-3836; CHARLES J. BARNES,
RwT 15-3836; JULIE BARON-MANNIX, RwT 153836; TRAVIS M. BASSETT, RwT 15-3836; JAMES
R. BATES, RwT 15-3836; JERICHO N.
BEAUCHAMP, RwT 15-3836; CRAIG BELANGER,
RwT 15-3836; JUDY-ANN BELLEFLEUR, RwT
15-3836; REGINALD J. BELTON, RwT 15-3836;
BRANDI L. BENSON, RwT 15-3836; THEODORE J.
BILL, RwT 15-3836; JASON R. BILLS, RwT 15-3836;
JOHNNIE F. BINES, RwT 15-3836; DENNIS A.
BLANCHARD, RwT 15-3836; CLINT ALLEN
BLANKENSHIP, RwT 15-3836; ANDREw
8a
Appendix A
MICHAEL BOOTH, RwT 15-3836; BRIAN K.
BOwER, RwT 15-3836; ANDREw DOULGAS
BOwERS, SR., RwT 15-3836; wILLIE ANTONIO
BOYKIN, SR., RwT 15-3836; FRANK EARL
BRAXTON, RwT 15-3836; ALAN K.
BRIDGEwATER, RwT 15-3836; BRANDY E.
BROADBENT, RwT 15-3836; RACHAEL BROwN,
RwT 15-3836; DAVID F. BRYDEN, RwT 15-3836;
DENNIS H. BUDD, RwT 15-3836; ERIK J. BURCH,
RwT 15-3836; KENON L. BURNS, RwT 15-3836;
THOMAS w. BURNS, RwT 15-3836; TEE JAY
BURR, RwT 15-3836; ROBERT P. BUSSE, RwT
15-3836; MICHAEL L. CALDwELL, RwT 15-3836;
wILLIAM G. CARDwELL, RwT 15-3836; JOHN
ERNEST CARLSON, RwT 15-3836; JASON L.
CARMEN, RwT 15-3836; MICHAEL w. CARR, RwT
15-3836; ROBIN A. CARR, RwT 15-3836; ANDREA
M. CASTON, RwT 15-3836; FREDDIE E. CAVAZOS,
JR., RwT 15-3836; RICHARD D. CELIA, RwT 153836; BLAIN L. CHAMBERS, RwT 15-3836; BRUCE
R. CHAPLIN, RwT 15-3836; DANIEL C. CHAVEZ,
SR., RwT 15-3836; LEONARD RAY CHEEK, RwT
15-3836; GwEN COLLEEN CHIARAMONTE, RwT
15-3836; BLAINE S. CHILD, RwT 15-3836;
KENNETH ROGER CHRISTENSEN, SR., RwT
15-3836; SCOTT ALLAN CHRISTIE, RwT 15-3836;
MARC J. CHUBBUCK, SR., RwT 15-3836; RICHARD
CHARLES CHUMBLEY, JR., RwT 15-3836;
JEFFREY S. CHURCH, RwT 15-3836; DERRICK D.
CLARK, RwT 15-3836; RICHARD MICHAEL
CLEMES, RwT 15-3836; RYAN V. COLLAMORE,
RwT 15-3836; CONNIE G. CONLEY, RwT 15-3836;
9a
Appendix A
ANDREw E. COUSSENS, RwT 15-3836;
KATHLEEN S. COY, RwT 15-3836; CHARLES
DONALD CRABBE, JR., RwT 15-3836; MICHAEL
A. CRANFILL, RwT 15-3836; PERRY A. CROSS,
JR., RwT 15-3836; CRAIG J. DANIEL, RwT 15-3836;
ROwENA L. DARVIN, RwT 15-3836; JESSE N.
DAVIDSON, RwT 15-3836; BRITTANY J. DAVIS,
RwT 15-3836; DANIEL LEE DAVIS, RwT 15-3836;
MALONE w. DAVIS, RwT 15-3836; RYAN MARTIN
DELONG, RwT 15-3836; DAVID BRIAN DELUCA,
RwT 15-3836; MICHAEL S. DELBORRELL, RwT
15-3836; JOSEPH EDwARD DEVALL, RwT 15-3836;
SHAwN R. DEVANEY, RwT 15-3836; FREDERICK
A. DEVONSHIRE, II, RwT 15-3836; MICKY DOTO,
RwT 15-3836; JENNIFER L. DOwNES, RwT 153836; BRADLEY DOYLE, RwT 15-3836; ROBERT A.
DREYFUS, RwT 15-3836; NICHOLAS R. DUDEK,
JR., RwT 15-3836; JOHN G. DUERR, RwT 15-3836;
BONNIE DUNLOP, RwT 15-3836; BRIAN EARL
EASLEY, RwT 15-3836; MICHAEL S. EDDY, RwT
15-3836; THOMAS S. EDwARDS, RwT 15-3836;
RONALD EYRL EISMAN, RwT 15-3836; ROBERT
CHRISTOPHER ELESKY, RwT 15-3836; JAMES
COREY ELLIS, RwT 15-3836; EARNEST J.
ELLISON, RwT 15-3836; SCOTT A.
ELSENHEIMER, RwT 15-3836; AMANDA J.
ENGEN, RwT 15-3836; GARY LEE ENNIS, RwT
15-3836; TREVOR G. ENNIS, RwT 15-3836;
CASSANDRA D. EUSERY, RwT 15-3836; TERRY D.
EVANS, RwT 15-3836; JUSTIN M. FAIRCLOTH,
RwT 15-3836; MICHAEL LEONARD FARLEY, RwT
15-3836; MICHAEL FARMER, RwT 15-3836; JASON
10a
Appendix A
D. FARQUHARSON, RwT 15-3836; KENLEY
FEAZELL, RwT 15-3836; TIMOTHY DONALD
FENDLEY, RwT 15-3836; EDwARD LEO
FERGUSON, RwT 15-3836; JOHN DAVID
FIELDER, RwT 15-3836; MICHAEL RAY FIELDS,
RwT 15-3836; CRAIG D. FILLINGANE, RwT 153836; JAMES AUSTIN FISHER, RwT 15-3836;
REGINALD FLEMING, JR., RwT 15-3836; DALE
FORD, RwT 15-3836; RONALD LEE FRISBY, RwT
15-3836; BRAD L. FRUHLING, RwT 15-3836; JOHN
R. FUDALA, RwT 15-3836; TOMMY L. FULLEN,
RwT 15-3836; CARRIE C. GALLAGHER, RwT
15-3836; TOM LEE GALLAGHER, RwT 15-3836;
ERIC BRADLEY GANN, RwT 15-3836; KAREN M.
GHARST, RwT 15-3836, Formerly Gabriele; KARL
MALINSKI GIBBS, RwT 15-3836; MICHAEL P.
GIBSON, RwT 15-3836; MITCHELL P. GILL, RwT
15-3836; AUDREY DEMON GLENN, RwT 15-3836;
SANDI CHRISTINE GOLDEN-VEST, RwT 15-3836;
RIGO A. GONZALEZ, RwT 15-3836; LEONARD
GOODSON, III, RwT 15-3836; MICHAEL A.
GRILEY, JR., RwT 15-3836; MICHAEL A.
GROCHOwSKI, RwT 15-3836; MICHAEL w.
HAFKE, RwT 15-3836; JARROD C. HALL, RwT
15-3836; JAMAR HAM, RwT 15-3836; BRYAN
HAMILTON, RwT 15-3836; RICHARD P.
HAMILTON, RwT 15-3836; JIMMY LYNN
HAMPTON, RwT 15-3836; DAVID F. HAPPLE, RwT
15-3836; RICHARD ALAN HARDISON, RwT 153836; MIKEL HARPER, RwT 15-3836; JASON PAUL
HATFIELD, RwT 15-3836; LARRY HAYNES, RwT
15-3836; wILLIAM JAMES HEARD, RwT 15-3836;
11a
Appendix A
JOHN L. HENDERSON, RwT 15-3836; wILLIAM
MYRON HENDERSON, RwT 15-3836;
CHRISTOPHER S. HENRIKSON, RwT 15-3836;
ALLISON MARIKO HILL, RwT 15-3836; MARK A.
HILL, RwT 15-3836; RICHARD CARL HOGAN, JR.,
RwT 15-3836; CLYDE RICHARD HOLDER, RwT
15-3836; STEVEN wAYNE HOLLEY, RwT 15-3836;
MARCO ALEXANDER HORSEwOOD, RwT 153836; JAMES HERSHEL HUDSON, III, RwT 153836; AUNDREA M. HUNT, RwT 15-3836;
MATTHEw CALVIN HURT, JR., RwT 15-3836;
OZANE JACKSON, RwT 15-3836; wANDA N.
JACKSON, RwT 15-3836; wADE JACOBSON, RwT
15-3836; ERIC JAEGER, RwT 15-3836; LAwRENCE
J. JANKOwSKI, RwT 15-3836; DANIEL MARTIN
JASONI, RwT 15-3836; RALPH BENJAMEN
JENKINS, RwT 15-3836; ANTERIAN D. JOHNSON,
RwT 15-3836; MICHELLE A. JOHNSON, RwT
15-3836; BRANDON CHRISTOPHER JOHNSTON,
RwT 15-3836; DAVID ALLEN JONES, II, RwT
15-3836; JULIAN K. JONES, RwT 15-3836; PAUL G.
JONES, RwT 15-3836; THOMAS K. JONES, RwT
15-3836; PAUL ANTHONY JONES, RwT 15-3836;
SAMI JUMA, RwT 15-3836; STANLEY K. KAINA,
JR., RwT 15-3836; KELLY JEAN KARL-FORST,
RwT 15-3836; DANIEL R. KEARNEY, RwT 15-3836;
BRYAN KEITH KEESE, RwT 15-3836; EDwIN
KEITH, SR., RwT 15-3836, (PR); STEPHEN
RANDALL KEITH, RwT 15-3836; JAMES ERIC
KELLEY, RwT 15-3836; GEORGE KEYS, JR., RwT
15-3836; MICHAEL J. KIDDER, RwT 15-3836;
DOULGAS HAMILTON KINARD, JR., RwT 15-3836;
12a
Appendix A
JAMES E. KIRK, RwT 15-3836; DAVID w.
KIRKLAND, RwT 15-3836; GERALD KENNETH
KREIN, RwT 15-3836; ROBIN KRUSKOL, RwT
15-3836; MICHAEL D. KUSEK, RwT 15-3836; SEAN
M. LADD, RwT 15-3836; PHILIP LAM, RwT 153836; CLIBURN LANE, JR., RwT 15-3836; PIERRE
O’DELL LARKIN, RwT 15-3836; BRUCE G.
LAUREIRO, RwT 15-3836; THADDEUS R.
LAwRENCE, SR., RwT 15-3836; MICHAEL A.
LEBLANC, RwT 15-3836; CHRISTINA L. LEE,
RwT 15-3836; MICHAEL CHARLES LEE, RwT
15-3836; ROBERT LIPPOLIS, RwT 15-3836; BRIAN
KEITH LLOYD, RwT 15-3836; DEMPSEY LOVETT
LOGUE, SR., RwT 15-3836; FRANKLIN GERALD
LOwE, RwT 15-3836; FRANKLIN GERALD LOwE,
RwT 15-3836; MICHAEL LEE LOwE, RwT 15-3836;
CHARLES J. LOwERY, RwT 15-3836; JUAN LUGO,
RwT 15-3836; MICHAEL L. MADIGAN, RwT 153836; DANIEL MAESTAS, RwT 15-3836; wILLIAM
MAGEE, RwT 15-3836; JASON B. MARTIN, RwT
15-3836; DONALD EDMUNDO MARTINEZ, RwT
15-3836; OMOwUNMI MARTINS, RwT 15-3836; JON
HARDING MASON, RwT 15-3836; RHONDA SUE
MATCHETT, RwT 15-3836; MICHAEL LEE
MAYNARD, RwT 15-3836; ALAN AUSTIN MAYS,
RwT 15-3836; FREDERICK D. MCCOLLUM, RwT
15-3836; JOHN ALBERT MCDONALD RwT 15-3836;
CORY ORLANDO MCGILL, RwT 15-3836;
RAHMAN A MCKINNON, RwT 15-3836; MURRILL
L. MCLEAN, RwT 15-3836; ERIC B MCLENDON,
RwT 15-3836; SHAwN K. MCLEOD, RwT 15-3836;
DENNIS E. MCMULLEN, RwT 15-3836;
13a
Appendix A
JONATHAN MEDINA, RwT 15-3836 RODNEY w.
MEECE, RwT 15-3836; NATHAN T. MEIDL, RwT
15-3836 ALEXANDER MENKES, RwT 15-3836;
KEITH R. MENZER, RwT 15-3836; JEFFREY A.
MEO, RwT 15-3836; MARY A. MICKENS, RwT
15-3836, (Currently Glass, Mary A.); JAMES
CUTHBERT MIDGETT, RwT 15-3836; AMANDA G.
MILLER, RwT 15-3836; JAMES EDwARD
MILLER, RwT 15-3836; LORI LYNN MITCHELL,
RwT 15-3836; wILLIE J. MITCHELL, RwT 15-3836;
PATRICK C. MONDRAGON, RwT 15-3836; DAVID A.
MONTGOMERY, RwT 15-3836; BRIAN DAVID
MURPHY, RwT 15-3836; TIMOTHY M. MURRAY,
RwT 15-3836; FAYIZ NALU, RwT 15-3836;
CHRISTOPHER LYNN NANNEY, RwT 15-3836;
ANDREA MICHELE NEUTZLING, RwT 15-3836;
RICHARD J. NICHOLLS, RwT 15-3836; SAMUEL
NIEVES, RwT 15-3836; HANNA P. NISSAN, RwT
15-3836; MICHAEL A. NORTHUP, RwT 15-3836;
LAURA J. NOwLIN, RwT 15-3836; CHRISTOPHER
SEAN NYBERG, RwT 15-3836; PATRICK
MICHAEL O’CONNELL, RwT 15-3836; BRENDA M.
O’NEAL, RwT 15-3836; ANTHONY BRETT OGDEN,
RwT 15-3836; THOMAS K. OLESON, RwT 15-3836;
THETA A. OLSON, RwT 15-3836; CARL ORLANDO,
RwT 15-3836; CHRISTINE OSORIO, RwT 15-3836;
LEwIS PALMER, RwT 15-3836; TIMOTHY
STEVEN PARKE, RwT 15-3836; GREGORY D.
PARKER, RwT 15-3836; ROBERT wILLIAM
PAXTON, RwT 15-3836; MICHELE A. PEARCE,
RwT 15-3836; AUDREY S. PERRY, RwT 15-3836;
JOSHUA NATHAN PERUSSE, RwT 15-3836;
14a
Appendix A
DEBORA J. PFAFF, RwT 15-3836; JODY LEE
PIERCY, RwT 15-3836; GREGORY J. PIETZ, RwT
15-3836; JAMES POLLOCK, RwT 15-3836; TAI
PORTER, RwT 15-3836; JAMES PRESTON
POTTER, JR., RwT 15-3836; LAUREN CAROL
PRICE, RwT 15-3836; CEDRIC EUGENE PRICE,
SR., RwT 15-3836; CALVIN PRIEST, RwT 15-3836;
TANYA QUINCY, RwT 15-3836; VARITA V.
QUINCY, RwT 15-3836; ROBERT F. RAMOS, JR.,
RwT 15-3836; GEORGE RICHARD RAPCIEwICZ,
JR., RwT 15-3836; RYAN C. RASMUSSEN, RwT
15-3836; CHAD ROBERT READ, RwT 15-3836;
TOMMY R. REDDICK, RwT 15-3836; BRUCE L.
REGES, RwT 15-3836; DANIEL R. REYES, RwT
15-3836; MILTON M. REYNOLDS, RwT 15-3836;
RICHARD D. RICE, RwT 15-3836; DANIEL
EDwARD RICE, JR., RwT 15-3836; STEVEN S.
RICHARDSON, RwT 15-3836; PAUL A. RICHMOND,
RwT 15-3836; CHARLES RAYMOND RIIPPI, RwT
15-3836; LEONARD RITUMS, RwT 15-3836;
VICTOR M. RIVERA, RwT 15-3836; wILLIAM O.
ROARK, III, RwT 15-3836; JAMES ROBIN, RwT
15-3836; DANIEL M. ROBSHAw, RwT 15-3836;
wAYNE RODRIGUEZ, RwT 15-3836; JOSE C.
ROQUE, RwT 15-3836; ERNEST RICHARD ROTH,
RwT 15-3836; CARTER CHARLES RUFF, RwT
15-3836; TERRY SALAZAR, RwT 15-3836; JAMES
ROBERT SANDEFUR, RwT 15-3836; JOHNNIE C.
SANDERS, JR., RwT 15-3836; CARLOS J. MARTIR
SANDOVAL, RwT 15-3836; JEREMEN SANDOVAL,
RwT 15-3836; HOBART P. SAUNDERS, RwT 153836; DANIEL B. SCHULTZ, RwT 15-3836;
15a
Appendix A
ROLAND DAVID SCHULZ, RwT 15-3836; ROLAND
PERRY SHARP, RwT 15-3836; CHRISTOPHER R.
SIMMONS, RwT 15-3836; MAREK M. SIPKO, RwT
15-3836; GREGORY C. SKYLES, RwT 15-3836;
HOwARD LEON SLADE, RwT 15-3836; DAMIAN L.
SMITH, RwT 15-3836; DAVID JOHN SMITH, RwT
15-3836; JASON wILLIAM SMITH, RwT 15-3836;
KRYSTE SwANZETTA SMITH, RwT 15-3836;
RONALD LAYNE SMITH, RwT 15-3836; TRACY
LEMAR SMITH, RwT 15-3836; AZARIAH SMITH,
JR., RwT 15-3836; FRANKLIN O. SNOw, RwT
15-3836; MICHAEL L. SONGY, RwT 15-3836;
KRISTIN SOUTHwELL, RwT 15-3836, formerly
Otterstetter; SUZANNE M. SPEIGHT, RwT 15-3836;
DAVID P. STAFFA, RwT 15-3836; NAPOLEAN L.
STAFFORD, RwT 15-3836; MICHAEL
CHRISTOPHER STANCO, RwT 15-3836; EDwIN
STEELE, RwT 15-3836; BRYAN L. STEVENS, RwT
15-3836; ANTHONY K. STEwARD, RwT 15-3836;
SCOTT H. STRADLEY, RwT 15-3836; SHAwN E.
STROUT, RwT 15-3836; CARL THOMAS
SULLIVAN, RwT 15-3836; NEAL MARK
SUTHERLAND, RwT 15-3836; DAVID M. SwAN,
RwT 15-3836; DAVID B. SwANEY, RwT 15-3836;
AUBREY DANYELLE TAPLEY, RwT 15-3836;
MILAN B. THAKKAR, RwT 15-3836; TROY
THOMAS, RwT 15-3836; CHRISTOPHER T.
THORNHILL, RwT 15-3836; TYRONE ANTHONY
TIMMS, RwT 15-3836; ANTHONY TRINIDAD, RwT
15-3836; MICHAEL ADAM TUMLINSON, RwT
15-3836; RICKY L. TURNER, RwT 15-3836;
NATHAN P. TURNOCK, RwT 15-3836; EDwIN
16a
Appendix A
TODD TURPIN, RwT 15-3836; ERIK D. UPHAM,
RwT 15-3836; STEPHENY GUPTON, RwT 15-3836,
(PR); PAUL R. VADNEY, RwT 15-3836; DANIEL E.
VALENTINE, RwT 15-3836; SIMON ALLEN wADE,
RwT 15-3836; ROBERT wAGENAAR, RwT 15-3836;
RICKEY TREYMANE wAITERS, RwT 15-3836;
ERVIN L. wALKER, RwT 15-3836; TEDDRIC
O’NEAL wALKER, RwT 15-3836; ALBERTO
JOSEPH wALRATH, RwT 15-3836; JULIO PIPINO
wALTON, RwT 15-3836; GORDON ALLEN wARD,
RwT 15-3836; ERIC G. wATERS, SR., RwT 15-3836;
TIMOTHY J. wATSON, RwT 15-3836; GEORGE L.
wATSON, III, RwT 15-3836; EDwARD B. wEIBL,
RwT 15-3836; KOLE wELSH, RwT 15-3836;
wILLIAM wESTLEY wESTBURG, JR., RwT
15-3836; DAVID B. wHALING, RwT 15-3836; JACOB
wHETSTONE, RwT 15-3836; KATRINA LEANN
wHITE, RwT 15-3836, Formerly Hightower;
wILLIAM EMMETT wHITE, RwT 15-3836;
ARTHUR wHITESIDE, RwT 15-3836; CLARENCE
wILLIAM wICKHAM, RwT 15-3836; BELINDA M.
wILLIAMS, RwT 15-3836; ROBERT L. wILLIAMS;
TONY wILLIAMS, RwT 15-3836; ANTOINE
LAVANTA wILLIAMS, SR., RwT 15-3836; JIMMY
DwAYNE wILLIAMS, RwT 15-3836; KORI L.
wILLIS, RwT 15-3836; RENE L. wILSON, RwT
15-3836; RONNAL wOMACK, RwT 15-3836; KEVIN
L. wOODRUM, RwT 15-3836; DONALD P.
wORRELL, RwT 15-3836; TONY L. wRIGHT, SR.,
RwT 15-3836; CLIFFORD YARDBROUGH, RwT
15-3836; SHAMERAN YOUKHANA, RwT 15-3836;
RAPHAEL A. ZAMORA, RwT 15-3836; STEVEN C.
17a
Appendix A
ZIMMERMAN, RwT 15-3836; MICHAEL E.
ZUNDLE, RwT 15-3836; TERRY ENNIS ADKINS,
RwT 15-4020; ISSAC AGUILAR, RwT 15-4020;
FRANCISCO EMILIO ALEXANDER, JR., RwT
15-4020; MEGHAN ARTEMIS O’CONAN, RwT
15-4020; SEVIM AYBULUT, RwT 15-4020; LORIN
GENE BANNERMAN, RwT 15-4020; GREGORY O.
BARNES, RwT 15-4020; ADAM M. BARTON, RwT
15-4020; CLAUDE N. BENSON, RwT 15-4020;
BARRY J. BIEGO, RwT 15-4020; EDwARD LEE
BRANCH, RwT 15-4020; YUSVF KENYATTA
BRANTLEY, SR., RwT 15-4020; ALBERT
BRIDGEMAN, RwT 15-4020; CASSANDRA
BRUSHwOOD, RwT 15-4020; DESHUNNON
CANNADY, RwT 15-4020; CLAUDIA CASTILLO,
RwT 15-4020; JAMES RAY CHANDLER, III, RwT
15-4020; RICHARD COREY, RwT 15-4020; STEVE
CROwSTON, RwT 15-4020; DAVID B. DA SILVA,
SR., RwT 15-4020; CHARLES RAY DANIELS, RwT
15-4020; RYAN DEwITT TAYLOR, RwT 15-4020;
wILLIAM J. DEVITO, RwT 15-4020; ENRIQUE
DIAZ, RwT 15-4020; FRANK DOMEAUX, RwT
15-4020; MICHAEL R. DRUMMOND, JR., RwT
15-4020; TERRY w. EDGERTON, RwT 15-4020;
JEFF EDwARDS, RwT 15-4020; MAURO CESAR
FAZ, RwT 15-4020; NATHANIEL L. FLOYD, JR.,
RwT 15-4020; KENNETH NEIL FRANCIS, RwT
15-4020; RANDY R. GARCIA, RwT 15-4020;
DANIEL R. GETTRIDGE, III, RwT 15-4020; MARK
THOMAS GILBERT, RwT 15-4020; TAEISHA L..
GLENN, RwT 15-4020; MICHAEL P. GREENBURG,
RwT 15-4020; DARYL GRIFFIN, RwT 15-4020;
18a
Appendix A
JONATHAN T. HALL, RwT 15-4020; KENNETH
HALL-MAY, RwT 15-4020; MARLIN BRETT
HALSTEAD, RwT 15-4020; JASON HAMMAN, RwT
15-4020; ROBERT wAYNE HARDY, JR., RwT 154020; THOMAS wILLIAM HEPPLER, RwT 15-4020;
AUSTIN L. HILL, RwT 15-4020; ARTHUR L.
HILLARD, RwT 15-4020; JONATHAN M.
HINCKLEY, RwT 15-4020; ROBERT HOLDING,
RwT 15-4020; ZACHARY RYAN HOLMES, RwT
15-4020; MESHELL TEE HORTON, RwT 15-4020;
BRADLEY w. HUDSON, RwT 15-4020; wILLIAM
M. HUDSON, RwT 15-4020; TODD LEE HUNKINS,
RwT 15-4020; KIMBERLY HUNTER-PREwITT,
RwT 15-4020; TIMOTHY P. HURLEY, RwT 15-4020;
ROBERT E. JACKSON, JR., RwT 15-4020; CODY
CARLTON JENNINGS, RwT 15-4020; JUNUOR
AUGUSTUS JOHN, RwT 15-4020; CHARONDA
LEVONNE JOHNSON, RwT 15-4020; NATHANIEL
JOYNER, III, RwT 15-4020; SCOTT T. KAMM, RwT
15-4020; DOUGLAS L. KELLY, RwT 15-4020; PAUL
J. KITTLE, JR., RwT 15-4020; AARON wAYNE
KLETZING, RwT 15-4020; MORROw S. KRUM, JR.,
RwT 15-4020; KENNETH D. KUYKENDALL, RwT
15-4020; ROGER A. LANKFORD, RwT 15-4020;
JAMES NOLAN LAw, JR., RwT 15-4020; HOwARD
DEwITT LINSON, RwT 15-4020; MICHAEL D.
LOPEZ, RwT 15-4020; TODD JASON MARLETT,
RwT 15-4020; ELSA E. MARTINEZ, RwT 15-4020;
GARY MASON, II, RwT 15-4020; JALMER A.
MATEOLOPEZ, RwT 15-4020; DAN PATRICK
MCDONOUGH, JR., RwT 15-4020; FREDRICK
MCGEE, RwT 15-4020; JAMES R. MCPHERSON,
19a
Appendix A
RwT 15-4020; CLARENCE L. MCQUEEN, JR., RwT
15-4020; RYAN T. MCQUILLIAN, RwT 15-4020;
EDwARD E. MELVIN, JR., RwT 15-4020; SCOTT
DAVID MIRODDI, RwT 15-4020; FRANCIS D.
MOLLARD, III, RwT 15-4020; ANTHONY MOORE,
RwT 15-4020; BRIAN EDwARD MOORE, RwT
15-4020; RONNIE DEwAYNE NANTZ, RwT 154020; SEAN M. NELSON, RwT 15-4020; ERIC
JEVON NICHOLS, RwT 15-4020; MARKUS
LAMONT NORTHINGTON, RwT 15-4020; DAwN
O’NEAL, RwT 15-4020; JOSE S. OCHOA, III, RwT
15-4020; JAN ERIK OHRSTROM, RwT 15-4020;
LEROY ONTIBEROS, RwT 15-4020; LEROY
wAYNE OSBORNE, RwT 15-4020; PHILLIP w.
OSSOwSKI, RwT 15-4020; JONATHAN M. OwENS,
RwT 15-4020; MATTHEw A. PADGETT, RwT 154020; CHARLES w. PAK, RwT 15-4020; BLU J.
PANNHOFF, RwT 15-4020; wESLEY DEwAYNE
PARKER, RwT 15-4020; VERNON PATTON, RwT
15-4020; MICHAEL A. PAYNE, RwT 15-4020;
ZACHARY A. PAYNE, RwT 15-4020; SCOTT
PENNINGTON, RwT 15-4020; MATTHEw E.
PERETZ, RwT 15-4020; ALBERT GORDON
PLUMLEE, JR., RwT 15-4020; CHARLOTTE
RENEE PORCH, RwT 15-4020; AARON M. PRICE,
RwT 15-4020; DANIEL RAULT, RwT 15-4020;
VALIANT L. REA, RwT 15-4020; CHRISTOPHER R.
REED, RwT 15-4020; MATTHEw RIDDLE, RwT
15-4020; DESHAUN A. RINGwOOD, RwT 15-4020;
BRYCE w. RODGERS, RwT 15-4020; wILLIAM
ROESSLING, RwT 15-4020; wILLIAM MICHAEL
ROSE, JR., RwT 15-4020; JOE SANCHEZ, SR., RwT
20a
Appendix A
15-4020; GABRIEL SCOTT, JR., RwT 15-4020;
TIMOTHY E. SHEETS, RwT 15-4020; RALPH
CALVIN SIEG, RwT 15-4020; KENNETH FRANCIS
SLACH, RwT 15-4020; wILLIAM SMITH, RwT
15-4020; CRAIG S. SOTEBEER, RwT 15-4020;
JONATHAN R. SPURKOSKY, RwT 15-4020; JAY D.
STARR, RwT 15-4020; JOSH L. STEININGER, RwT
15-4020; TREVOR B. TAYLOR, RwT 15-4020;
JEREMY E. TELLEZ, RwT 15-4020; DAVID J.
TEXADA, RwT 15-4020; RODNEY J. THURMAN,
RwT 15-4020; BRIAN P. TOLBERT, RwT 15-4020;
LEROY TORRES, RwT 15-4020; DAVID TRAN,
RwT 15-4020; JOSE J. TREJO, RwT 15-4020;
ROSARIO TROTSKY, RwT 15-4020; JASON S. VEST,
RwT 15-4020; RENEE E. VILLEGAS, RwT 15-4020;
ROBERT L. wILLIAMS, JR., RwT 15-4020;
RODERICK w. wALKER, RwT 15-4020; THOMAS J.
wASHINGTON, JR., RwT 15-4020; MARK H.
wELLS, RwT 15-4020; CARL DEAN wILEY, RwT
15-4020; DR. CAROLINE wILLIAMS, RwT 15-4020;
JAMES R. YORK, RwT 15-4020; STEVEN J.
ZALETEL, SR., RwT 15-4020; ROBERT D.
ZIEGELMAIR, RwT 15-4020; LAURA JONES;
KEITH JONES; JAMES w. SAVINO, III; JULIA
SAVINO; TERRANCE SORDAHL; JONATHAN
COOK, RwT 16-2880; DAVID MONTOYA, RwT 152404; JEFF BALDUINI, RwT 15-3531; MICHAEL
HARTMAN, RwT 15-3531; BRETT NUTTER, RwT
15-3531; wILLIAM VANCE, RwT 15-3531,
Plaintiffs-Appellants,
21a
Appendix A
v.
KBR, INC.; KELLOGG BROwN & ROOT,
LLC; HALLIBURTON COMPANY; KELLOGG
BROwN & ROOT SERVICES, INC.; BROwN
AND ROOT SERVICES; DII INDUSTRIES, LLC;
HALLIBURTON ENERGY SERVICES, INC.;
KBR HOLDINGS, LLC; KELLOGG BROwN
& ROOT, INC.; KELLOGG BROwN & ROOT
INTERNATIONAL, INC.; KBR GROUP HOLDINGS,
LLC; KBR TECHNICAL SERVICES, INC.,
Defendants-Appellees,
and
ERKA LTD.,
Defendant.
––––––––––––––––––––––––––––––
PROFESSIONAL SERVICES COUNCIL;
NATIONAL DEFENSE INDUSTRIAL
ASSOCIATION,
Amici Supporting Appellees.
May 9, 2018, Argued
June 20, 2018, Decided
22a
Appendix A
Appeal from the United States District Court for the
District of Maryland, at Greenbelt. (8:09-md-2083RwT). Roger w. Titus, Senior District Judge.
Before KING, DIAZ, and FLOYD, Circuit Judges.
FLOYD, Circuit Judge:
The Constitution entrusts the President and Congress,
not the courts, with the power to resolve political questions.
See Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S.
221, 230, 106 S. Ct. 2860, 92 L. Ed. 2d 166 (1986); Taylor
v. Kellogg, Brown & Root Servs., Inc., 658 F.3d 402, 408409 (4th Cir. 2011). The issue before us is whether a suit
brought by United States military personnel, civilian
contractors, and surviving family members (collectively
“Servicemembers”) against Kellogg, Brown, & Root,
LLC, and Halliburton Company (collectively “KBR”) for
injuries allegedly caused by KBR’s waste management
and water services across Iraq and Afghanistan implicates
such a political question.
This case returns to us after the district court
created an extensive factual record through a herculean
discovery process and once again concluded that the
Servicemembers’ suit implicates a political question
that federal courts cannot adjudicate. See In re KBR,
Inc., Burn Pit Litig., 268 F. Supp. 3d 778 (D. Md. 2017)
(“Burn Pit IV ”). Additionally, the district court held
that the Federal Tort Claims Act (“FTCA”) preempts
the Servicemembers’ claims. we agree with the district
court that the political question doctrine bars the
23a
Appendix A
Servicemembers’ suit. Therefore, we need not reach the
FTCA preemption issue. Accordingly, we affirm in part
and vacate in part.
I.
A.
Since the United States began its military operations
in Afghanistan and Iraq in 2001 and 2003, respectively,
the U.S. military has depended heavily on contractors
to support its mission. For example, as the military
established forward operating bases (“FOBs”) across
the two theaters, those bases necessitated extensive
contractor support for the management of waste,
ammunition, fuel, and facilities, and provision of water
treatment and food services, so that the warfighters could
focus on combat operations. To provide waste management
and water services at the FOBs, the Army awarded KBR a
ten-year contract called the Logistics Civil Augmentation
Program III (“LOGCAP III”).
Since 2008, through 63 separate complaints, the
Servicemembers have sued KBR, alleging that they
suffered harms from being exposed to smoke from open
air burn pits and drinking impure water.1 The Judicial
Panel on Multidistrict Litigation consolidated and
transferred these cases to the District of Maryland for
1. Many of these cases are purported class actions on behalf
of hundreds of thousands of military personnel and civilian
contractors.
24a
Appendix A
pretrial proceedings. The amended complaint, in large
part, alleges that KBR failed to design, manage, and
operate the burn pits safely and to treat and monitor
water qualities.
Before any jurisdictional discovery took place, on
February 27, 2013, the district court granted KBR’s
renewed motion to dismiss. 2 In re KBR, Inc., Burn Pit
Litig., 925 F. Supp. 2d 752, 774 (D. Md. 2013) (“Burn
Pit II”). The district court concluded that (1) the case
presented a nonjusticiable political question, (2) KBR was
shielded from suit under derivative sovereign immunity,
and (3) the FTCA preempted the Servicemembers’ state
law claims. See id. at 765-68, 771. On appeal, this Court
vacated and remanded on the grounds that the record was
not sufficiently developed to support the district court’s
decision. Metzgar v. KBR, Inc. (In re KBR, Inc.), 744 F.3d
326 (4th Cir. 2014) (“Burn Pit III”).
On remand, the district court commenced jurisdictional
discovery regarding “(1) [t]he degree to which the military
controlled KBR’s performance of the contracts” and “(2)
[t]he degree to which KBR was integrated into military
command.”3 J.A. 332. Jurisdictional discovery yielded over
2. The district court had denied KBR’s initial motion to
dismiss. In re KBR, Inc., Burn Pit Litig., 736 F. Supp. 2d 954 (D.
Md. 2010) (“Burn Pit I”).
3. On remand, the district court expressly excluded the
question of derivative sovereign immunity from discovery, and
later similarly declined to rule on this issue. See J.A. 332; Burn
Pit IV, 268 F. Supp. 3d at 786 n.5.
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5.8 million pages of documents, including almost a million
pages of contract documents, and 34 witness depositions.
After the conclusion of jurisdictional discovery, KBR
moved to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1) based on the political question
doctrine and for summary judgment pursuant to Rule 56
based on FTCA preemption. The district court held an
evidentiary hearing during which each side presented a
comprehensive case. KBR presented six live witnesses.
The Servicemembers presented one live witness and
introduced deposition testimony excerpts and the
contractual language from LOGCAP III and various
task orders.
B.
Based on the evidence gathered from jurisdictional
discovery and presented during the evidentiary hearing,
the district court made key factual findings pertaining to
(1) KBR’s management of waste, (2) KBR’s provision of
water services, (3) the military’s contracting process, and
(4) KBR’s integration into the military chain of command.
1.
The district court found that “the military, after
balancing all the risks and alternative methods of waste
disposal, made the sensitive decision to use burn pits, and
only burn pits, at all FOBs in Iraq and Afghanistan.” Burn
Pit IV, 268 F. Supp. 3d at 803. The district court also found
that the military determined that no feasible alternatives
to burn pits—such as the use of incinerators, landfills, or
26a
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recycling—were available, and KBR could not unilaterally
decide to use burn pits. Id. at 806-07.
In making these findings, the district court relied on
the testimony of Lieutenant General, retired, Ricardo
Sanchez, the commanding general of the U.S. forces
in Iraq in the immediate aftermath of the invasion of
Iraq, who testified that the military’s theater command
“mandated that burn pits be used for eliminating all of the
trash” across the entire theater. Id. at 791 (quoting J.A.
4852). The court also cited the testimony of Lieutenant
General, retired, John Vines, who assumed command after
General Sanchez, that his predecessor’s “standing orders
remain[ed] in effect,” that he did not need to affirmatively
re-authorize the use of the burn pits, and that he did not
consider alternatives to burn pits to be feasible. Id. at 792
(quoting J.A. 4917).
The district court explained that the theater
command’s decision to use burn pits “reflected a military
judgment . . . in the dangerous, wartime contingency
environment.” See id. at 807. The district court relied
on General Vines’s testimony that alternatives such as
landfills or recycling services were not feasible because
“the slightest movement [of the U.S. forces] expose[d]
those moving to hostile actions.” Id. at 806 (quoting J.A.
4918). The record also contains a written declaration of
General Sanchez who similarly opined that landfills inside
the FOBs would have posed a risk of the spread of disease,
stench, and vermin, and landfills outside the FOBs would
have posed “an unacceptable level of security risk” to
personnel disposing of waste. J.A. 914.
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The district court further found that the military
decided against using incinerators and that KBR could
not unilaterally decide to install incinerators to dispose
of waste. The court relied on various witness testimonies,
establishing that the military had to approve the
acquisition, funding, and transportation of incinerators
into the Iraqi theater. The district court also cited to
General Vines’s testimony that “everything that came
in[to] [Iraq] required support sustainment” and “had
side effects.” Burn Pit IV, 268 F. Supp. 3d at 807 (quoting
J.A. 4918). Bringing the incinerators into Iraq would
have required the military to provide a military convoy,
potentially diverting combat personnel. Based on this
testimony, the district court found that the military—
not KBR—decided to forgo the use of incinerators.
In addition to the district court’s findings, the record
contains General Sanchez’s written declaration that
the acquisition and transportation of the incinerators
did not amount to a military priority because, given the
“limited transportation capacity,” the military focused on
transporting “mission-critical supplies, i.e., ammunition
and fuel.” J.A. 916.
The district court further found that the military
“made all decisions regarding the location of burn pits
on the FOBs in Iraq and Afghanistan.” Burn Pit IV, 268
F. Supp. 3d at 804. The district court cited to various
witnesses’ testimonies stating that every FOB had a base
commander who “exert[ed] total operational and physical
control” over the base, that these base commanders
“decided where everything went,” including the burn pits,
and that KBR could not “unilaterally move a burn pit from
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one location to another.” Id. at 805 (quoting J.A. 1076, 1362,
4955). The record also contains General Vines’s testimony,
explaining that the location for a burn pit implicated a
military decision that only the military commanders could
make, because the burn pit “could affect the road network,
communications plan, building [of] a quick reaction force,
[the ability to] maneuver[] around the base in event of
infiltration, [the] potential for introduction of disease,
[t]he effect of wind direction, the effect of smoke, [and the]
operation on an air field.” J.A. 4923.
In addition to the siting decisions, the district court
found that “[t]he military exercised control over the
operation of the burn pits,” and that “KBR was at all times
acting under the comprehensive direction and control of
the military.” Burn Pit IV, 268 F. Supp. 3d at 805-06.
One example of the military’s exercise of control, the
court noted, was the military’s determination as to which
items could be burned and which items could not. Based
on the two commanding generals’ testimonies, various
memoranda, and letters of technical direction (“LOTD”),4
the court observed that the military directed the following
items to be burned: plastic water bottles, animal carcasses,
dining facility trash, woven fiber filters, and oil filters. Id.
at 805. Additionally, the district court cited the declaration
of Gerald E. Vincent, a Department of the Army civilian
employee who served as the Environmental Program
Manager in Iraq, stating that “[i]f something was not
4. Under the relevant acquisitions practices, LOTDs are
contractual documents that “order[] [contractors] to initiate
performance of the requirements set forth in the task order[s].”
J.A. 1074.
29a
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specifically prohibited, then it was allowed to be burned.”
Id. at 806 (quoting J.A. 1797). Relatedly, as the district
court noted, the military determined that hazardous
materials were “to be segregated and disposed of by a
method other than surface burning” and “not authorized
to be placed in burn pits.” Id. (quoting J.A. 4933).
Other portions of the record, cited by the district
court, similarly demonstrate the military’s plenary control
over the operation of the burn pits. For example, one
LOTD, dated January 1, 2006, directs KBR “to reduce the
amount of solid waste being burned at Camp Echo at one
time by conducting multiple burns of smaller quantities of
trash.” J.A. 2039. with regard to the hours of operation,
the district court cited to one LOTD, dated November 11,
2006, that directed KBR to change the burn pit hours at
FOB Summerall, Iraq, from 24 hours to 10 hours a day;
and then to another LOTD, dated December 29, 2006,
that directed KBR to operate the burn pit at Bagram Air
Field, Afghanistan, for 24 hours. Burn Pit IV, 268 F. Supp.
3d at 805 (quoting J.A. 2050, 2052). Lastly, the standard
operating procedure in place for the U.S. forces in Iraq
provided that “[f]lames above the burning material must
not be higher than (2) Feet.” J.A. 4394.
2.
Next, the district court found that “the military
retained a high level of control over KBR’s provision
of water services in Iraq and Afghanistan” and that
the military’s control was “not limited to the ‘what’ of
providing water, but rather included highly detailed
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specifications concerning ‘how’ it was to be provided.”
Burn Pit IV, 268 F. Supp. 3d at 808. The record
demonstrates that water services amounted to a critical
element of “force health protection” because it concerned
prevention of dehydration, disease, and other non-battle
injuries which could seriously undermine the readiness of
the U.S. forces. See J.A. 1596, 1613. Yet, General Sanchez
testified that water services presented a unique challenge
to the military in theater as it “could not tap into Iraqi
sources of water.” J.A. 4839. The only options were to rely
on reverse osmosis water purification or bottled water. The
record indicates that bottled water was disfavored because
transporting water was not as critical as transporting
ammunition and fuel. Thus, the military units and civilian
contractors produced potable water through reverse
osmosis purification, “filtering and treating a variety of
raw water sources, e.g., rivers and wells.” J.A. 1818.
The district court found that the military “retained
ultimate control over KBR’s performance of [water]
services and tested the water to ensure that the detailed
military standards and methods were being met.” Burn
Pit IV, 268 F. Supp. 3d at 809. In making this finding,
the district court relied on the written declaration of
Lieutenant Colonel Tara Hall, the former Chairperson
of the Multi-National Corps-Iraq water Quality Board,
who stated that the “Army Preventive Medicine had
oversight over water operations in Iraq and supervised
the production, testing, and distribution of potable and
nonpotable water.” Id. at 801 (quoting J.A. 1818). In
that declaration, Hall further explained that “the Army
routinely tested potable and nonpotable water to ensure
the water was safe for human uses” and “routinely
31a
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certified and inspected [reverse osmosis water purification
units] to ensure safety and sanitation.” J.A. 1818. Although
the district court acknowledged that “KBR was, at times,
responsible for testing and ensuring the quality of water
that it delivered,” the court nevertheless found that “the
military retained ultimate control.” Burn Pit IV, 268 F.
Supp. 3d at 808. The district court relied on testimonial
and record evidence indicating that “Preventive Medicine
personnel in theater were required, and regularly
conducted, surveillance of the potable water at base
camps.” Id. (quoting J.A. 2192).
After finding that the military retained control over
water quality, the district court cited various documents
to further find that the military directed KBR on how
to produce water, detailing the quantity, frequency, and
location of production. Id. at 808. The record contains
various documents, such as Task Order 89 which listed the
varied amounts of water to be produced and stored at eight
FOBs, directed KBR to “distribute potable water daily
(seven days per week) to units within 250 km from [the
specified locations],” and authorizing the use of reverse
osmosis purification. J.A. 4100. Additionally, the record
includes various LOTDs directing KBR to, for example,
provide 52,000 gallons of water, fill water tanks, test water
to a new dining facility, and operate certain water wells
for up to 8 hours a day.
3.
with regard to the military’s contracting process,
the district court found that “[t]he operational arm of the
military dictated all requirements” and that the military’s
32a
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contracting arm “implemented these decisions through
the contracting process.” Burn Pit IV, 268 F. Supp. 3d at
807. Under the relevant federal acquisitions practices, only
contracting professionals—such as contracting officers or
administrative contracting officers—can alter the terms of
a government contract or issue contract guidance through
written documents such as LOTDs or administrative
change letters. The military’s uniformed contracting
professionals do not fall under the operational chain of
command; instead, they often fall under a separate chain
of command under the Defense Contract Management
Agency (“DCMA”). DCMA receives delegated contract
administration authority from a contracting agency,
such as the Army Materials Command, and ensures that
“both the contractor and the Government comply with the
terms and conditions of the contract.” J.A. 1066. In war
zones, although there existed a formal divide between the
operational arm and the contracting arm of the military,
the contracting arm did not have the authority to change
the requirements identified by the operational command.
In other words, the contracting arm merely translated
the operational command’s requirements into contractual
terms and conditions.
Relatedly, during KBR’s performance of the contract,
the military had several methods of evaluating and
controlling KBR. DCMA conducted real-time inspections
and quality assurance audits. If KBR failed to meet
the commander’s intent, the military and KBR could
informally address the deficiencies. The military also
possessed formal methods including the issuance of formal
directives to take corrective actions. Because LOGCAP III
33a
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was a performance-based contract, KBR received its fee
upon the government’s evaluation of its work. Accordingly,
the military evaluated KBR’s performance through semiannual award fee evaluation boards consisting of both
contracting and operational military personnel.
4.
Lastly, the district court found that “KBR was
integrated into the military’s chain of command and
its waste and water services were essential to the
military’s mission.” Burn Pit IV, 268 F. Supp. 3d at 809.
The district court first acknowledged that “the military
commanders retained no direct command authority over
KBR employees.” Id. Although the military commanders
could not issue direct orders to KBR, the district court
relied on various witness and deposition testimonies to
find that the military “retained authority and control
over KBR’s provision of waste and water services, and
KBR was integrated into the military mission and chain
of command.” Id. In making these findings, the court first
cited to General Sanchez’s testimony that “there were
directives that were issued that required KBR to comply,”
and that KBR “could not make decisions unilaterally . . .
without coordinating and integrating with the military.”
Id. (quoting J.A. 4880); see also J.A. 812 (Dep’t of the
Army Pamphlet 715-16, Contractor Deployment Guide,
stating that “[c]ontractor employees will be expected
to adhere to all guidance and obey all instructions and
general orders issued by the Theater Commander or his/
her representative.”). The district court further relied on
the deposition testimony of Sari Berman, a former KBR
34a
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employee, stating that KBR was “functionally under
[military] command.” Burn Pit IV, 268 F. Supp. 3d at
809 (alteration in original) (citing J.A. 1343). Berman’s
testimony further revealed that KBR participated in the
military’s weekly primary staff briefings, daily battle
update briefings, monthly maintenance meetings, and
command briefs. The record contains General Sanchez’s
written declaration, explaining that “KBR’s integration
into the command and control structures allowed the
military to exercise the necessary levels of control over the
entire logistics chain supporting its operations.” J.A. 908.
***
Based on the extensive facts that it found regarding
KBR’s provision of waste management and water services,
the military’s contracting process, and KBR’s integration
into the military chain of command, the district court
reached two holdings. First, the district court held that
the Servicemembers’ suit presented a political question
and granted KBR’s motion to dismiss for lack of subject
matter jurisdiction. Second, the district court held that the
FTCA preempted the Servicemembers’ state law claims
and granted summary judgment in KBR’s favor.
II.
“we review the district court’s factual findings
with respect to jurisdiction for clear error and the
legal conclusion that flows therefrom de novo.” Scott
v. Cricket Communs., LLC, 865 F.3d 189, 194 (4th Cir.
2017) (internal quotation marks omitted). “The clearly
35a
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erroneous standard is a demanding one. we may not
simply overturn a lower court’s determination because we
would reach a different conclusion.” In re Bate Land &
Timber LLC, 877 F.3d 188, 198 (4th Cir. 2017). “[A] finding
is clearly erroneous when although there is evidence to
support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake
has been committed.” Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 573, 105 S. Ct. 1504, 84 L. Ed. 2d 518
(1985) (internal quotation marks omitted). “If the district
court’s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not
reverse it even though convinced that had it been sitting
as the trier of fact, it would have weighed the evidence
differently.” United States v. Wooden, 887 F.3d 591, 602
(4th Cir. 2018) (internal quotation marks omitted). In
addition, “[w]e review a district court’s grant of summary
judgment de novo.” Variety Stores, Inc. v. Wal-Mart
Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018) (internal
quotation marks omitted).
III.
A.
Under Article III of the Constitution, “[t]he judicial
power of the United States” extends to all cases arising
under the Constitution and the laws of the United States.
U.S. Const. art. III. The vesting of the judicial power in
federal courts creates their emphatic duty “to say what
the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137,
170, 177, 2 L. Ed. 60 (1803). Thus, federal courts have
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“a responsibility to decide cases properly before [them],
even those [they] ‘would gladly avoid.’” Zivotofsky ex rel.
Zivotofsky v. Clinton, 566 U.S. 189, 194-95, 132 S. Ct. 1421,
182 L. Ed. 2d 423 (2012) (quoting Cohens v. Virginia, 19
U.S. (6 wheat.) 264, 404, 5 L. Ed. 257 (1821)).
Even so, the Supreme Court has long recognized
“a narrow exception” to the federal courts’ duty and
responsibility to decide cases, known as the political
question doctrine. Id. at 195. A case or controversy
“involves a political question-where there is ‘a textually
demonstrable constitutional commitment of the issue to
a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it.’”
Nixon v. United States, 506 U.S. 224, 228, 113 S. Ct. 732,
122 L. Ed. 2d 1 (1993) (quoting Baker v. Carr, 369 U.S.
186, 217, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962)). Federal
courts will not examine cases involving a political question
because doing so would encroach on the constitutional
prerogatives of Congress and the President and because
they are ill-equipped to decide these cases. See Baker,
369 U.S. at 217. In other words, the Constitution commits
political questions to be resolved within “the halls of
Congress or the confines of the Executive Branch,” not
on the steps of a federal courthouse. Japan Whaling, 478
U.S. at 230; see also Marbury 5 U.S. at 170 (“Questions,
in their nature political, or which are, by the constitution
and laws, submitted to the executive, can never be made
in this court.”).
“[M]ost military decisions are matters solely within
the purview of the executive branch.” Al Shimari v. CACI
Premier Tech., Inc., 758 F.3d 516, 533 (4th Cir. 2014)
37a
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(“Al Shimari III”) (internal quotation marks omitted).
whereas the Constitution confers authority over military
affairs in Congress and designates the President as
Commander in Chief, U.S. Const. art. I, §8; art. II, §2,
“[i]t contemplates no comparable role for the judiciary,”
and “judicial review of military decisions would stray from
the traditional subjects of judicial competence,” Lebron
v. Rumsfeld, 670 F.3d 540, 548 (4th Cir. 2012). Given the
unprecedented levels at which today’s military relies on
contractors to support its mission, however, this Court
has recognized that a military contractor acting under
military orders can also invoke the political question
doctrine as a shield under certain circumstances. See
Taylor, 658 F.3d at 411. Accordingly, when we are asked to
review a military contractor’s actions, we inquire whether
such a review would lead to scrutinizing military decisions
for which we lack the constitutional warrant and judicial
competence. Under this Court’s decision in Taylor, a
suit against a military contractor raises a nonjusticiable
political question if either (1) the military exercised
direct control over the contractor, or (2) “national defense
interests were closely intertwined with the military’s
decisions regarding [the contractor’s] conduct.” Id. A
case must be dismissed as nonjusticiable if either of these
factors is met. Burn Pit III, 744 F.3d at 335.
B.
1.
Under the first Taylor factor, a suit against a military
contractor presents a political question if the military
exercised direct control over the contractor. Al Shimari
38a
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v. CACI Premier Tech., Inc., 840 F.3d 147, 156 (4th Cir.
2016) (“Al Shimari IV”). To qualify as direct control,
the military’s control over the government contractor
must be plenary, Burn Pit III, 744 F.3d at 338 (quoting
Carmichael v. Kellogg, Brown & Root Servs., Inc., 572
F.3d 1271, 1276 (11th Cir. 2009)), and actual, Al Shimari
IV, 840 F.3d at 156.
To determine whether the military’s control is plenary,
“a court must inquire whether the military clearly chose
how to carry out [the contractor’s activities], rather than
giving the contractor discretion to determine the manner
in which the contractual duties would be performed.” Al
Shimari III, 758 F.3d at 534 (internal quotation marks
omitted). The military’s control over the government
contractor must rise “to the level of the military’s control
over the convoy in Carmichael.” Burn Pit III, 744 F.3d at
338. In Carmichael, 572 F.3d at 1275, a military convoy—
including fuel trucks being driven by KBR employees—
was on a fuel resupply mission. During the mission, one
of the trucks rolled over, threw Sergeant Carmichael
out of the truck, and pinned him down, leaving him in a
permanent vegetative state. Id. at 1278. In dismissing
the suit, the Eleventh Circuit held that the military’s
control was plenary, because “the military decided the
particular date and time for the convoy’s departure; the
speed at which the convoy was to travel; the decision to
travel along a particular route . . . ; how much fuel was
to be transported; the number of trucks necessary for
the task; the speed at which the vehicles would travel;
the distance to be maintained between vehicles; and the
security measures that were to be taken.” Id. at 1281; see
also Burn Pit III, 744 F.3d at 338.
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But the military’s control is not plenary if the military
“merely provides the contractor with general guidelines
that can be satisfied at the contractor’s discretion . . . .”
Burn Pit III, 744 F.3d at 338 (quoting Harris v. Kellogg,
Brown & Root Servs., Inc., 724 F.3d 458, 467 (3d Cir.
2013)). For example, in Taylor, 658 F.3d at 404, a Marine
who was working on a broken power generator at a tank
maintenance ramp suffered severe injuries when a KBR
technician turned on the generator without confirming
that the work was complete. This Court concluded that
the military’s control over the contractor was not plenary,
because the military had contractually assigned all
responsibility for safety and supervision to KBR, and
“KBR was nearly insulated from direct military control
. . . .” Id. at 411. Similarly, in Harris, 724 F.3d at 463, a
soldier was electrified to death in the shower because of
a water pump that was, allegedly, negligently installed
and maintained. The Third Circuit concluded that the
military’s control over KBR was not plenary because
of KBR’s “significant discretion over how to complete
authorized work orders,” “the lack of detailed instructions
in the work orders,” and “the lack of military involvement
in completing authorized work orders.” Id. at 467.
In addition to this framework, this Court in Al
Shimari IV explained that the military’s control must
also be actual. See 840 F.3d at 156-57. In Al Shimari
IV, the military, at least on paper, had vast control over
the contractors at the Abu Ghraib prison in Iraq where
the U.S. military held detainees. Id. For example, the
contractor fell within the official military command
structure, and the military established interrogation
rules of engagement and approved interrogation plans.
40a
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See id. But based on the Executive Branch’s investigative
findings that Abu Ghraib was “plagued by a lack of an
organizational chain of command presence and by a lack
of proper actions to establish standards and training,”
this Court concluded that the military lacked actual
control over the contractors. Id. at 156. “[F]ormal
command authority . . . did not translate into actual
control of day-to-day interrogation operations.” Id. The
Al Shimari IV court also held that the contractor must
be engaged in “a lawful action under the actual control
of the military,” because “the military cannot lawfully
exercise its authority by directing a contractor to engage
in unlawful activity.” Id. at 157. In sum, this Court would
lack jurisdiction to entertain the Servicemembers’ suit if
the military’s control over KBR was plenary and actual.
2.
Applying these principles, we conclude that the
military’s control over KBR was plenary and actual. First,
the military’s control was plenary as it not only directed
to KBR “what” must be done but also prescribed “how”
KBR must accomplish those tasks. See Al Shimari III, 758
F.3d at 534; Burn Pit III, 744 F.3d at 338-39. Under the
LOGCAP III contract, the military contracted with KBR
to provide waste management and water services. The
facts found by the district court plainly show that KBR
had little to no discretion in choosing how to manage the
waste. The military mandated the use of burn pits as a
matter of military judgment. KBR could not unilaterally
choose to use landfills, recycling, or incinerators instead.
Additionally, the military exercised plenary control over
41a
Appendix A
where to construct the burn pits, what could or could not be
burned, when KBR could operate the burn pits, how high
the flames should be, and how large each burn should be.
with regard to water services, KBR similarly had little
discretion to choose how to provide potable water. KBR
could not unilaterally bring bottled water from outside
of Iraq, as it depended on the military supply chain to
transport anything. As the evidence showed, the military
directed the frequency and quantity of potable water to
be produced and dictated how much should be stored. The
fact that KBR lacked discretion differentiates this case
from Taylor and Harris, where the military’s control was
not plenary because the contractors retained significant
discretion, but makes it similar to Carmichael, 572 F.3d
at 1282, in which “[e]ach of the[] critical determinations
was made exclusively by the military.” we conclude that
the military’s control over KBR’s waste management and
water services was plenary.
Next, the military’s control over KBR was actual. See
Al Shimari IV, 840 F.3d at 156-57. Unlike Al Shimari IV,
this was not a case involving merely on-paper military
control that was plagued by a lack of actual command
presence. Although KBR did not officially fall within
the military chain of command, the military exercised
extensive control and oversight over KBR’s burn pit
operations and water ser vices. Operationally, the
commanders and their staff officers interfaced with KBR
contractors on a regular basis. The operational command
determined the methods of waste management and water
services that KBR was to use, dictated their requirements
42a
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for support, and directed KBR to provide the necessary
services through the contracting arm. The military also
retained the ultimate responsibility for testing water
quality. Furthermore, the military continuously and
meticulously evaluated whether KBR was meeting the
commanders’ intent. Accordingly, we conclude that the
military’s control over KBR’s waste management and
water services was actual and plenary.
3.
The Servicemembers raise numerous unpersuasive
arguments as to why the military lacked control over
KBR. First, the Servicemembers argue that the district
court clearly erred in finding that the military authorized
KBR to utilize burn pits across Iraq and Afghanistan.
To support this argument, the Servicemembers note
that pursuant to LOGCAP III, KBR could not use burn
pits without written authorization. Because the record
only contains written authorization for burn pits at 18
locations, the Servicemembers argue that KBR therefore
did not have authorization for every burn pit. we reject
this argument. The district court’s factual findings
regarding the authorization of the use of burn pits is
compelling in light of the entire record, easily surpassing
the requirement that we uphold the finding so long as it
is simply “plausible.” Wooden, 887 F.3d at 602 (internal
quotation marks omitted). The record overwhelmingly
shows that the military not only authorized but mandated
the use of burn pits.
In a written declaration, the Servicemembers’ own
witness, Lieutenant Colonel Damon walsh, stated that
43a
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“it is highly improbable that KBR could have located,
constructed, and/or operated an enduring burn pit without
the awareness and authorization of the military units.” J.A.
1077. Likewise, David Palmer, a KBR employee, testified
at deposition that he was not “aware of any instances
where KBR operated a burn pit without the government’s
knowledge.” J.A. 998. And Matthew Hersch, the military’s
quality assurance representative, testified that, “in [his]
experience at Camp Bucca,” there were no “instances
where contractors were performing unauthorized work.”
J.A. 4982-83. Thus, the district court’s conclusions that
the military decided, authorized, and mandated the use of
burn pits at all FOBs and that there were no instances of
unauthorized use of burn pits are well supported by the
record evidence. In other words, regarding the district
court’s finding that the military authorized KBR to use
burn pits, the Servicemembers fail to leave a “definite
and firm conviction that a mistake has been committed.”
Anderson, 470 U.S. at 573 (internal quotation marks
omitted).
Second, the Servicemembers argue that the district
court clearly erred in finding that the military exercised
any control over KBR because the military—or at least its
operational command—cannot directly issue an order to
KBR. They argue that only the military’s contracting arm
could direct KBR through contractual agreements, thus
subjecting KBR not to military control but to contractual
obligations. This argument is factually and legally
unavailing. Factually, though the most immediate control
over KBR came from DCMA, DCMA acted at the behest
of the operational command. Although part of a separate
chain of command, DCMA did not have its own separate
44a
Appendix A
mission apart from the operational command; rather,
its mission was to support the operational command.
This is clear from the fact that DCMA did not have the
authority to change the substance of the operational
command’s requirements. Therefore, we agree with the
district court’s conclusion that it is “irrelevant here that
the military’s operational commanders . . . effectuated
[their] orders by using DCMA (which is part of the
military) as a conduit.” Burn Pit IV, 268 F. Supp. 3d at
814. Furthermore, as the Army’s Contractor Deployment
Guide shows, “[c]ontractor employees [were] expected
to adhere to all guidance and obey all instructions and
general orders issued by the Theater Commander or his/
her representative.” J.A. 812.
Moreover, the Servicemembers’ argument is one that
places form over substance. Cf. Al Shimari IV, 840 F.3d at
157 (noting that, although the military had formal control
over the contractor’s interrogation tactics, the inquiry
turns on “what actually occurred in practice during those
interrogations” (emphasis added)). The Servicemembers
ask us to abstractly look only to the formal, contractual
relationship between the military and KBR while ignoring
the actual, operational relationship between them. we
decline to do so. 5
5. Relatedly, the Servicemembers argue that this case is akin
to Taylor, in which the military lacked plenary control because
it had contractually assigned the responsibility of supervision
to KBR. See 658 F.3d at 411. In the Servicemembers’ view,
because the language of LOGCAP III and the contract in Taylor
is identical, the military’s control over KBR in this case would
similarly not be plenary. we reject this argument. As noted, Al
45a
Appendix A
Third, the Servicemembers argue that the district
court’s findings regarding the military’s control are
clearly erroneous because there is evidence of KBR
burning hazardous material, despite the military’s
prohibition against burning such material, thus showing
the military did not actually control KBR. This argument
has both factual and legal dimensions. Factually, the
Servicemembers maintain that the district court’s
finding of control was clearly erroneous. Legally, the
Servicemembers similarly argue that “KBR’s repeated
violations show a lack of military control over KBR,” just
like the lack of control in Al Shimari IV. Appellant Br.
39-40. we reject this argument on both fronts. Factually,
the district court found the allegations that KBR burned
hazardous material “vague [and] non-specific” and
insufficient to “negate the conclusion that the military
retained control.” Burn Pit IV, 268 F. Supp. 3d at 806.
We find no clear error in that finding. And legally, a
few instances of non-specific allegations do not amount
to the type of systematic failure of oversight and lack
of command presence found in Al Shimari IV. In Al
Shimari IV, there were extensive findings of systematic
violations at Abu Ghraib by the Executive Branch. Here,
the Servicemembers make only vague allegations.6
Shimari IV, 840 F.3d at 156-57, requires us to examine what
actually happened rather than looking to the formal contractual
relationship alone. Given the fact that the military directed KBR’s
waste management and water services in an extensive and detailed
manner, we cannot say that “KBR was nearly insulated from direct
military control.” Taylor, 658 F.3d at 411.
6. The Ser vicemembers also allege that DCM A was
understaffed and poorly trained such that it could not have
46a
Appendix A
For these reasons, we conclude that the district
court did not err in determining that the first Taylor
factor is satisfied. The military’s control over KBR was
plenary and actual, making KBR’s decisions pertaining to
waste management and water services “de facto military
decisions” unreviewable by this Court. Taylor, 658 F.3d
at 410. Therefore, we agree with the district court that
the political question doctrine bars the Servicemembers’
suit. Because the first Taylor factor requires dismissal,
we need not discuss the second Taylor factor and decline
to do so. See Burn Pit III, 744 F.3d at 335.
Iv.
Because this case is nonjusticiable under the first
Taylor factor, we believe that the proper disposition is
to affirm the dismissal and to vacate the portion of the
district court’s opinion discussing the FTCA issue. The
FTCA waives the United States’ sovereign immunity in
certain tort cases. 28 U.S.C. § 2674. But under the FTCA’s
combatant activities exception, the United States remains
immune from “[a]ny claim arising out of the combatant
activities of the military or naval forces, or the Coast Guard,
during time of war.” 28 U.S.C. § 2680(j). As relevant here,
the combatant activities exception preempts state tort
claims against contractors if “a private service contractor
is integrated into combatant activities over which the
military retains command authority.” Burn Pit III, 744
effectively supervised KBR, thus lacking actual control. we
reject this argument, as the district court’s contrary conclusion
is well supported by the evidence, and the Servicemembers offer
comparatively little evidentiary support for this allegation. As
such, they cannot prevail under clear error review.
47a
Appendix A
F.3d at 351 (quoting Saleh v. Titan Corp., 580 F.3d 1, 9,
388 U.S. App. D.C. 114 (D.C. Cir. 2009)). Below, the district
court concluded that KBR’s activities were integrated into
the military’s combatant activities. Therefore, the district
court held that the FTCA’s combatant activities exception
preempted the Servicemembers’ claims.
As we observed in Taylor, 658 F.3d at 412, “because
we agree with the district court that the political question
doctrine applies here, the second appellate issue—whether
[the Servicemembers’ claims are] preempted by the
FTCA’s combat[ant] activities exception—is rendered
moot.” we decline to review the district court’s analysis of
the FTCA issue, because the result “would be little more
than an advisory opinion . . . .” Id. Mindful of our duty to
decide only cases and controversies, we will not “stray into
the practice of advisory opinion-making, solving questions
that do not actually require answering in order to resolve
the matters before [us].” Karsten v. Kaiser Found. Health
Plan of Mid-Atl. States, Inc., 36 F.3d 8, 11 (4th Cir. 1994)
(per curiam). Additionally, we have explained that, in these
circumstances, the “customary practice . . . is to vacate the
moot aspects of the lower court’s judgment.” Norfolk S.
Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir.
2010). Accordingly, we are “obliged to vacate the FTCA
ruling, which constitutes the moot aspect of the district
court’s judgment.” Taylor, 658 F.3d at 412.
v.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED IN PART AND VACATED IN PART.
48a
Appendix B
APPENdIX B — mEmORANdum
OPINION OF
ThE uNITEd sTATEs dIsTRICT COuRT FOR
ThE dIsTRICT OF mARylANd, FIlEd
July 19, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Master Case No. 8:09-md-2083-RwT
IN RE: KBR, INC., BURN PIT LITIGATION
This Document Relates to: All Member Cases
July 19, 2017, Decided
July 19, 2017, Filed
mEmORANdum OPINION
In the wake of the terrorist attacks of September 11,
2001, the United States was drawn into not one, but two
wars. Those wars spawned a decade of involvement by
the United States military that exacted a very heavy toll.
In Iraq, 4,484 servicemen were killed and an additional
32,251 wounded. unIted States Dep’t oF DeF., https://
www.defense.gov/casualty.pdf (updated July 12, 2017).
In Afghanistan, 2,216 United States soldiers were killed,
and another 20,048 wounded. Id. Both war zones were
extremely dangerous, and the use of improvised explosive
devices made them especially so for military and nonmilitary personnel alike.
In order to fight these wars, the military established
a number of bases, referred to in military jargon as
49a
Appendix B
“Forward Operating Bases,” (“FOBs”) where soldiers
were stationed. Because of the size and scope of the
military operations, it became necessary to engage the
services of contractors to assist in the fulfillment of the
military mission in these two theaters of war.
As explained below, one of the first decisions made
by the military was that, due to the extremely dangerous
conditions in these two war zones, the management of
waste would have to be accomplished through the use of
open burn pits, some operated by the military, and others
operated by contractors. The decision to use burn pits was
not made by the contractors, but rather by the military.
The military recognized that there were certain health
risks associated with the use of burn pits, but balanced
those risks against the greater risk of harm to military
and other personnel should other methods of waste
management be utilized.
As noted above, the toll on military and other personnel
from fighting these two wars was considerable. Some never
came home from the war, and others came home maimed
or wounded. Others returned suffering from illnesses
that they attributed to their exposure to smoke coming
from open burn pits and/or their drinking of allegedly
impure water. This has resulted in 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”). Sixty-three
separate complaints have been filed, and at least forty-four
of these actions purport to be nationwide class actions.
50a
Appendix B
The claims asserted in these complaints do not relate to
a specific, discrete event, but rather to the conduct of the
Defendants alleged to have taken place in both theaters
of war over extended periods of time as long as a decade.
The central common fact in all of the complaints is the
use of open burn pits.
Faced with this avalanche of litigation in the federal
courts asserting the common question of harm caused
by the use of open burn pits, the Judicial Panel on MultiDistrict Litigation, acting pursuant to 28 U.S.C. § 1407,
directed that all such cases be transferred to the United
States District Court for the District of Maryland for
consolidated pretrial proceedings. ECF No. 1.1 Indeed,
because of the centrality of the common issue of the use
of open burn pits, the consolidated litigation was renamed
“In Re: KBR, Inc., Burn Pit Litigation.” Id.
Following the transfer of the cases to this Court, a
series of Case Management Orders was entered [ECF
Nos. 104, 273, 292, 340, 374, 399, 410], and a Consolidated
Amended Complaint was filed [ECF No. 377]. In it, the
Plaintiffs alleged that the Defendants wrongfully (1) used
open-air burn pits to dispose of waste, (2) failed to locate
them in a manner that reduced the harmful effects on
human health, (3) failed to bring incinerators online, (4)
failed to provide recycling services, and (5) burned plastics
and other items which are known to cause cancer. Id.
¶¶ 33-34, 37-39 and 51.
1. All ECF citations refer to the MDL case number, 8:09-md02083-RwT.
51a
Appendix B
On January 29, 2010, the Defendants filed their first
motion to dismiss all of the complaints on the basis that
the actions were nonjusticiable under the political question
doctrine, precluded by derivative sovereign immunity, and
preempted by the “combatant activities” exception in the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(j).
I.
Earlier decisions of This Court
Following a hearing, this Court denied Defendants’
first Motion to Dismiss on September 8, 2010. In re KBR,
Inc., Burn Pit Litig., 736 F. Supp. 2d 954 (D. Md. 2010)
(“Burn Pit I”). The Court concluded then that while it
would be without jurisdiction to decide a claim arising
out of an alleged breach of a LOGCAP III contract if
such review would involve second-guessing a military
decision, there was insufficient information at that early
stage of the litigation to determine whether Defendants
operated burn pits and treated water in ways prohibited
or unauthorized by the military. Id. at 960. This Court
was careful to note that if actions had been taken by
Defendants in violation of LOGCAP III, but such actions
had been specifically condoned or directed by military
commanders, any resulting claims would be barred by the
political question doctrine. Id. On the limited record then
before the Court, it concluded that it did not necessarily
lack manageable standards to adjudicate the case, and,
assuming that the Defendants’ actions involved decisions
separate from and contrary to military decisions, the
case would not require formulating any military policies
clearly committed to the executive branch. Id. at 961-62.
This Court also held that, at that early stage and subject
to limitations, it could adjudicate the claims without
52a
Appendix B
disrespecting or embarrassing the executive branch.
Id. at 962. with regard to the Defendants’ preemption
argument, the Court concluded that it was “premature,”
because Defendants had “not produced sufficient factual
support” at that early stage to justify its application. Id.
at 976. while this Court denied the motion to dismiss, it
declined to unleash the “full fury of unlimited discovery,”
and instead required the parties to confer and create a
plan for “carefully limited discovery.” Id. at 979.
Before authorizing any limited discovery, this Court
on December 10, 2010 stayed all proceedings in order to
give it an opportunity to consider the effect of decisions
expected to be issued by the Fourth Circuit in three
then pending cases. 2 See Stay Order, ECF No. 112. After
decision of the pending appellate cases, this Court entered
an order establishing a briefing schedule for the filing by
the Defendants of any renewed motion to dismiss. See
ECF No. 209. Following a hearing, this Court granted
Defendants’ Renewed Motion to Dismiss for Lack of
Subject Matter Jurisdiction [ECF No. 217] on February
27, 2013, and dismissed all cases in the multi-district
litigation. In re KBR, Inc., Burn Pit Litig., 925 F. Supp.
2d 752 (D. Md. 2013) (“Burn Pit II”). In its Memorandum
Opinion, this Court concluded that there was “more
than sufficient information” in the record such that full
discovery or an evidentiary hearing was not necessary. Id.
at 759. The Court concluded that the extensive discovery
sought by the Plaintiffs would “result in precisely the
2. The three cases were Al Shimari v. CACI Premier Tech.,
Inc., No. 09-1335; Taylor v. Kellogg Brown & Root Servs., Inc.,
No. 10-1543; and Al-Quraishi v. Nakhla, No. 10-1891.
53a
Appendix B
kind of unnecessary intrusion and entanglement with the
military that the political question doctrine was designed
to avoid.” Id. at 760.
a.
Political Question doctrine
In deciding that the cases were nonjusticiable under
the political question doctrine, this Court noted that
the Fourth Circuit in Taylor v. Kellogg Brown & Root
Services, Inc., 658 F3d. 402 (4th Cir. 2011), had adopted a
two-part test for use in the government contractor context.
Burn Pit II, 925 F. Supp. 2d at 761. The two-part inquiry
considered “(1) the extent to which a contractor was under
the military’s control; and (2) whether national defense
interests were closely intertwined with the military’s
decisions governing the contractor’s conduct.” Id.
This Court considered the “military control” factor
and concluded that KBR’s evidence “establishe[d] direct
and fundamental military management and control of
KBR employees in both theatres of war.” Id. Specifically,
the Court concluded that the military made the most
important decision—the decision to use open burn pits—
and that any analysis of the Plaintiffs’ burn pit claims would
require the Court to question sensitive military judgments
made after considering the exigencies associated with a
war zone. Id. at 762. The Court concluded that the same
held true for KBR’s provision of water services in Iraq
and Afghanistan. Id. Unlike in Taylor, in which the Fourth
Circuit held that the language of the contract did not
demonstrate military control over contractor employees,
this Court found that the LOGCAP III contract and its
appended task orders “demonstrate[d] pervasive and
54a
Appendix B
plenary military control.” Id. at 764. while nothing in the
Statements of work in this case gave the military direct
control over the Defendants’ employees, the “essential
decision (in sharp contrast to Taylor) to use open burn
pits as a method of battlefield waste disposal was made
by the military alone.” Id. The Court emphasized that the
issue did “not involve a discrete event on a specific date,
but rather the resolution of damage claims resulting from
essential military decisions. . .in fields of battle in two
countries over an extended period of time,” and held that
the “military control” factor weighed heavily in favor of
dismissal under the political question doctrine. Id.
This Court likewise held that the “national defense
interest” factor weighed in favor of dismissal. Id. The
Court found that the “actions complained of [were] not ones
taken by the Defendants alone, and KBR’s defenses (e.g.,
contributory negligence and causation) would necessarily
require review of the reasonableness of military decisions,
a role that is simply not appropriate for, or within the
competence of, the judiciary.” Id. at 765-66.
b.
Preemption under the “Combatant Activities”
Exception in the Federal Tort Claims Act
This Court also concluded that dismissal was
appropriate due to federal preemption under the
“combatant activities” exception in the Federal Tort
Claims Act. Id. at 767. 3 This Court relied on the D.C.
3. This Court also held that Defendants were entitled to
derivative sovereign immunity, an issue that is not presently before
the Court under its Second Amended Case Management Order.
See ECF No. 399 § I at 2 (“[w]hether KBR breached its LOGCAP
55a
Appendix B
Circuit’s decision in Saleh v. Titan Corp., 580 F.3d 1, 388
U.S. App. D.C. 114 (D.C. Cir. 2009), and the amicus briefs
filed by the Solicitor General in Saleh v. Titan Corp., No.
09-1313 (U.S. May 27, 2011), and in Al Shimari v. CACI
Int’l, Inc., Nos. 09-1335, 10-1891, 10-1921 (4th Cir. Jan.
13, 2012), to reach the conclusion that, for purposes of
preemption, the “focus should not be on the activity of the
contractor, but rather that of the military and whether the
claims asserted arise out of combatant activities of the
military.” Burn Pit II, 925 F. Supp. 2d at 768-70 (emphasis
in original). At all times pertinent to Plaintiffs’ claims,
this Court held that the military was “clearly engaged
in combat activities” in Iraq and Afghanistan. Id. at 770.
As a final observation, this Court noted that although
it may have been “tempt[ing]. . .to allow these cases to
go forward and not now decide the essential questions
addressed above,” allowing the cases to proceed when
the Court lacks authority to do so “would not be fair to
either side nor would it be in the national interest.” Id.
at 772. while the Court was sympathetic to the claims
of the Plaintiffs, it noted that the “remedy is through
the military and the legislative process, not through the
judiciary,” and that “national interests in this case dictate
the result that has been reached.” Id. at 773.
II. The Plaintiffs Appeal to the Fourth Circuit
Following this Court’s February 27, 2013 Memorandum
Opinion and Order, Plaintiffs appealed to the United
III contract and the related derivative immunity defense is outside
the scope of purely jurisdictional discovery.”).
56a
Appendix B
States Court of Appeals for the Fourth Circuit. ECF No.
238. In their appeal, Plaintiffs argued that this Court
failed to address “any of the contradictory evidence
establishing that Halliburton/KBR did not always obtain
the requisite authorizations to use burn pits,” and even
when it had authorization, it “failed to comply with the
terms of those authorizations.” Brief of Appellants at 7,
In re KBR, Inc., Burn Pit Litig., No. 13-1430 (4th Cir.
May 29, 2013) (“Appellant Br.”). Plaintiffs also argued
that this Court failed to “discuss the evidence showing
that Halliburton/KBR chose the location of burn pits in
certain camps,” and that this Court “created categorical
rules that would allow for immunity regardless of whether
Halliburton/KBR acted directly contrary to military
dictates.” Id. at 7-8. Specifically, Plaintiffs averred that
KBR submitted evidence that it obtained authorization
to use a burn pit at only one location, Camp Taji, and that
it violated military directives while operating that burn
pit. Id. at 10-11. Plaintiffs also claimed that KBR operated
burn pits without military authorization and in ways
that breached LOGCAP III—for example, by burning
prohibited materials. Id. at 11-12. Similarly, Plaintiffs
argued that KBR “failed to sanitize and control water in
accordance with TB MED 577.” Id. at 13.
with regard to the political question doctrine,
Plaintiffs argued that this Court erred in construing
Taylor as “landscape changing,” and in making only one
factual finding that the military made the key decisions
as to use, location, and supervision of burn pits, without
making factual findings as to whether KBR acted within
the bounds of its authority. Id. at 8. Plaintiffs claimed that
57a
Appendix B
this Court erred in relying upon a “sparse and undeveloped
record untested by jurisdictional discovery” in concluding
that the cases presented a political question, while ignoring
the essential premise of Plaintiffs’ complaints: that KBR
violated military directives. Id. at 14-15. Plaintiffs then
went through each of the six Baker4 factors to argue that
the claims were justiciable. Id. at 26-37.
Regarding the “combatant activities” exception
preemption issue, Plaintiffs argued that this Court’s
formulation of the “combatant activities” test “ignores
the plain language of the FTCA” and would “insulate all
defense contractors operating in war zones from liability
for anything and everything done abroad and at home in
connection with the wars in Iraq and Afghanistan.” Id. at
16. Plaintiffs argued that this Court erred by finding their
claims preempted when the FTCA excludes contractors
4. Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d
663 (1962). In Baker, the Supreme Court outlined six factors to
consider when determining whether a case presents a political
question. The Court explained that “[p]rominent on the surface
of any case held to involve a political question is found [1] a
textually demonstrable constitutional commitment of the issue to a
coordinate political department; [2] a lack of judicially discoverable
and manageable standards for resolving it; [3] the impossibility
of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; [4] the impossibility of a court’s
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; [5] an unusual
need for unquestioning adherence to a political decision already
made; [6] the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.” Id.
at 217.
58a
Appendix B
from the scope of the statute. Id. at 49. They also argued
that, in finding the claims preempted, this Court ignored
Supreme Court preemption jurisprudence and erred by
failing to make factual findings that KBR was acting
within the scope of its contract and was integrated with
military personnel in the performance of the combatant
activities. Id. at 50-54. In short, they claimed that the
Court “created a preemption doctrine that contradicts
Supreme Court and Fourth Circuit jurisprudence and
lacks any limiting principle,” and erred by resolving the
lawsuits without discovery. Id. at 57.
III.
The Fourth Circuit Remands for discovery
In its decision, the Fourth Circuit ultimately concluded
that the factual record was not sufficiently developed to
support this Court’s determination that Plaintiffs’ claims
were nonjusticiable political questions or preempted under
the FTCA’s “combatant activities” exception. In re KBR,
Inc. Burn Pit Litigation, 744 F.3d 326 (4th Cir. 2014)
(“Burn Pit III”).
a.
Political Question
The Fourth Circuit first applied the test set forth in
its decision in Taylor, in which the court had previously
concluded that the fact that “KBR was acting under
orders of the military does not, in and of itself, insulate
the claim from judicial review.” Taylor, 658 F.3d. at 411.
Rather, the court was required to assess “first, the extent
to which KBR was under the military’s control, and,
second, whether national defense interests were closely
59a
Appendix B
intertwined with the military’s decisions governing KBR’s
conduct.” Id. (emphasis added). Under the second factor,
a claim is a nonjusticiable political question “if deciding
the issue would require the judiciary to question actual,
sensitive judgments made by the military, which can occur
even if the government contractor is nearly insulated
from direct military control.” Burn Pit III, 744 F.3d at
335 (citations and quotation marks omitted). In order to
evaluate the Taylor factors, the Fourth Circuit explained,
the court must look “beyond the complaint, and consider[]
how the Servicemembers might prove their claims and
how KBR would defend.” Id. (citations and quotation
marks omitted). The court explained that it would proceed
with its analysis using only the Taylor test, rather than
conducting a Baker-style analysis. Id.
i.
military Control Factor
With regard to the first factor, the Fourth Circuit
concluded that the evidence presented in these cases
“indicate[d] that the military allowed the use of burn
pits and decided whether, when, and how to utilize them.”
Burn Pit III, 744 F.3d at 337. However, it also noted that
“[a]lthough some evidence demonstrate[d] 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.”
Id. with regard to water treatment functions, the court
concluded that “the evidence suggest[ed] that, although
the military delegated many water treatment functions to
KBR, the military oversaw water treatment in Iraq and
Afghanistan to some degree.” Id. at 338.
60a
Appendix B
In evaluating the level of control that the military
exercised over KBR’s burn pit and water treatment
activities, the Fourth Circuit concluded that, at that point
in the litigation and based on the then current record,
the situation as presented more closely resembled the
situation in Harris v. Kellogg Brown & Root Servs.,
Inc., 724 F.3d 458, 467 (3d Cir. 2013), in which the Third
Circuit explained that “where the military does not
exercise control but merely provides the contractor with
general guidelines that can be satisfied at the contractor’s
discretion, contractor actions taken within that discretion
do not necessarily implicate unreviewable military
decisions.” Burn Pit III, 744 F.3d at 338-39. The Fourth
Circuit concluded that, on the limited record developed at
that time, it “d[id] not appear that the military’s control
over KBR’s burn pit and water treatment tasks rose
to the level of the military’s control over the convoy in
Carmichael [v. Kellogg, Brown & Root Servs., Inc., 572
F.3d 1271 (11th Cir. 2009)].” Burn Pit III, 744 F.3d at 338.
“In short,” the Fourth Circuit explained, “although
the evidence shows that 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.” Id. at 339.
ii.
“National defense Interests” Factor
In evaluating this factor, the Fourth Circuit held that
this Court must “consider whether the Servicemembers’
claims or KBR’s defenses require [the court] to consider
the military’s judgments.” Burn Pit III, 744 F.3d at 339.
61a
Appendix B
The Fourth Circuit held that this factor did not compel
the conclusion that the case was nonjusticiable despite
the fact that KBR raised an argument that the military,
and not KBR, caused the alleged injuries. Id. at 34041. Because it concluded that KBR had raised only a
simple causation defense, the district court would only
need to “decide if the military made decisions regarding
(1) whether to use, how to use, and where to locate burn
pits and (2) how to conduct water treatment,” without
necessarily evaluating the propriety of these judgments.
Id. at 340. Applying Harris, the court concluded that
“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.” Id. at 34041. Therefore, the second Taylor factor did not necessarily
compel the conclusion that the claims were nonjusticiable.
b.
Preemption under the FTCA’s “Combatant
Activities” Exception5
In addressing this Court’s analysis of K BR’s
preemption argument, the Fourth Circuit explained
that the Supreme Court’s decision in Boyle v. United
5. The Fourth Circuit also addressed KBR’s argument
that it was entitled to derivative immunity under the FTCA’s
discretionary function exception. Burn Pit III, 744 F.3d at 341-46.
Pursuant to this Court’s Case Management Order, however, this
defense will not be addressed or decided. See ECF No. 399 § I at
2 (“[w]hether KBR breached its LOGCAP III contract and the
related derivative immunity defense is outside the scope of purely
jurisdictional discovery”).
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Technologies Corp., 487 U.S. 500, 108 S. Ct. 2510, 101 L.
Ed. 2d 442 (1988), governed the question. Burn Pit III,
744 F.3d at 346-47. In Boyle, the Supreme Court developed
a three-step process to determine whether federal law
preempted state law. Id. at 347. “First, it identified the
‘uniquely federal interests’ at issue in that case. Second,
it determined whether there was a ‘significant conflict’
between those interests and state law. . . . Third, the Court
formulated a test that ensured preemption of state laws
that clashed with the federal interests at play.” Id. (citing
Boyle, 487 U.S. at 504-13).
Turning to the first step in the process, the Fourth
Circuit adopted the test set forth by the Third Circuit in
Harris. The Third Circuit concluded that the combatant
activities exception’s purpose is to “foreclose state
regulation of the military’s battlefield conduct and
decisions.” Harris, 724 F.3d at 480. with regard to the
second step, the Fourth Circuit concluded that
when state tort law touches the military’s
battlefield conduct and decisions, it inevitably
conflicts with the combatant activity exception’s
goal of eliminating such regulation of the
military during wartime. In other words, “the
federal government occupies the field when it
comes to warfare, and its interest in combat is
always ‘precisely contrary’ to the imposition of
a non-federal tort duty.”
Burn Pit III, 744 F.3d at 349 (quoting Saleh v. Titan Corp.,
580 F.3d 1, 7, 388 U.S. App. D.C. 114 (D.C. Cir. 2009)).
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Finally, the Fourth Circuit adopted the test set forth
in Saleh to determine whether state law was preempted
under the third Boyle step. Id. In Saleh, the D.C. Circuit
articulated the test as follows: “During wartime, where
a private service contractor is integrated into combatant
activities over which the military retains command
authority, a tort claim arising out of the contractor’s
engagement in such activities shall be preempted.” Saleh,
580 F.3d at 9. This test “ensures that the FTCA will
preempt only state tort laws that touch the military’s
wartime decision making.” Burn Pit III, 744 F.3d at 350.
The Fourth Circuit explained that it is irrelevant that
government contractors cannot qualify as “combatants”
because “the Saleh test does not require private actors to
be combatants; it simply requires them to be integrated
into combatant activities.” Id. (emphasis added) (citations
and quotation marks omitted). The court held that
KBR’s waste management and water treatment services
constituted “combatant activities,” but concluded that “the
extent to which KBR was integrated into the military
chain of command [was] unclear.” Id. at 351.
Because the Fourth Circuit concluded that neither
the political question doctrine nor preemption under
the FTCA’s “combatant activities” exception required
dismissal at that stage of the litigation, it remanded
the cases back to this Court for further jurisdictional
discovery. Id. at 351-52.
Iv. The Case Returns to the district Court
This Court long ago invited the United States to
participate in the formulation of a discovery plan as an
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amicus curiae, so as to ensure that the discovery did
not “overly burden[] the military and its personnel with
onerous and intrusive discovery requests. . . .” Burn Pit I,
736 F. Supp. 2d at 979. After the Fourth Circuit’s remand
to this Court, this Court again noted that it was “essential”
for the United States to participate in the formulation
of a discovery plan, “not only because it is in possession
of significant information that may be dispositive of the
conflicting claims made by the parties in this case, but also
due to the significant potential for a burden on military
operations of the United States.” ECF No. 253 at 3.
To aid in the discovery process, the Court, after
extensive consultation with the parties, entered several
case management orders, culminating in the Second
Amended Case Management Order [ECF No. 399],
approved by all parties and entered on April 26, 2016.
This Order provided that, because Plaintiffs bear the
burden of proving subject matter jurisdiction, and because
“KBR has challenged the factual validity of Plaintiffs’
jurisdictional assertions, Plaintiffs must prove those facts
by a preponderance of the evidence.” ECF No. 399 at 1
(citing U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 34748 (4th Cir. 2009)). The Court also stated that “any factual
assertions that are intertwined with the merits of the case
are more properly reserved for decision until after the
purely jurisdictional issues have been addressed.” ECF
No. 399 at 1-2 (citing Kerns v. United States, 585 F.3d 187,
192-93 (4th Cir. 2009)). Therefore, the “mixed” questions
of whether KBR breached the LOGCAP III contract, as
well as the derivative immunity defense, were excluded
from the scope of jurisdictional discovery, which was to be
focused on “pure” jurisdictional facts. ECF No. 399 at 2.
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This Court determined that the proper scope
of “purely jurisdictional discovery” included only:
“(1) The degree to which the military controlled KBR’s
performance of the contracts; and (2) The degree to which
KBR was integrated into military command.” Id. The
Court recognized that “some information may potentially
be relevant to control and integration, as well as breach
of contract and the military’s approval of deviations from
the contract.” Id. at 2 n.1. while this information “would
fall into the scope of jurisdictional discovery,” argument
would only be “permitted as to its relevance to control
and integration,” and “not as to breach of contract or the
military’s approval of deviations from the contract.” Id.
v. The discovery on Remand
Pursuant to this Court’s Case Management Order,
the parties began the enormous task of conducting even
limited discovery in this case. The scope of discovery was
massive despite the limitations on the issues placed by
the Court in its Case Management Order. KBR produced
over 5.8 million pages of documents, including more than 3
million pages of emails and other electronic data, 102,000
pages of award fee evaluation documents, and 640,000
pages of contract directives, including Administrative
Change Letters (“ACLs”), Letters of Technical Direction
(“LOTDs”), and Notices to Proceed (“NTPs”). Def. Ex. 1,
ECF No. 451-4. The parties took thirty-four depositions of
various witnesses on the jurisdictional questions, including
military personnel in both the operational and contracting
commands, current and former KBR employees, and some
of the plaintiffs in the cases. Tr. Mot. Hr’g, March 9, 2017,
9:00 A.M. (“March 9 A.M. Tr.”) 10:3-12, ECF No. 481.
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vI. KBR’s Renewed motion to dismiss
After the conclusion of the voluminous jurisdictional
discovery, KBR filed a Motion to Dismiss Pursuant to
Federal Rule of Civil Procedure 12(b)(1) and for Summary
Judgment Pursuant to Rule 56 [ECF No. 451] on the
grounds that Plaintiffs’ claims present nonjusticiable
political questions and that they are preempted by the
FTCA’s “combatant activities” exception.
a.
KBR’s Key Contentions
KBR first argued that the Court lacks subject matter
jurisdiction over these cases as Plaintiffs’ claims amount
to nonjusticiable political questions. ECF No. 451-1 at 8-9.
With regard to the first Taylor factor, KBR argued that
the military made all of the key decisions relating to waste
management and water services and exerted a “level of
‘control’ analogous to the level of the military’s control
over the convoy in Carmichael.” ECF No. 451-1 at 10-11.
KBR claimed that the military decided to use burn pits
“after balancing sensitive Military needs and priorities
in theater,” and argued that there is “zero evidence
supporting Plaintiffs’ incredible assertion that KBR
operated burn pits on secure military bases throughout
two war theaters ‘without military authorization.’” Id. at
12-13.
KBR also argued that, after discovery, it could not
be disputed that the military determined where to locate
burn pits, and that “under the LOGCAP III contracting
process established by the Military, the Military gave
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KBR specific contractual direction regarding the location
of the burn pit[s].” ECF No. 451-1 at 15. And at the
“relatively small number of bases where KBR operated
a burn pit,” the Military issued directives that controlled
how the pits were operated. Id. KBR also averred that the
Military, not KBR, made the decision to burn a number of
items about which Plaintiffs complain, including plastics.
Id. at 15.
In addition to controlling the location and operation
of the burn pits, KBR argued, the Military continually
assessed the known risks associated with burn pits
and continued to direct KBR to operate them, showing
that “KBR was operating pursuant to sensitive military
judgments. . .that would be scrutinized by the Judiciary
should these suits proceed.” Id. at 16-17. Moreover,
contrary to Plaintiffs’ claim that KBR failed to timely
bring incinerators online, KBR asserted that the “record
on remand establishes that the Military decided whether,
where, and when to install and use incinerators—thereby
exerting further control over KBR.” Id. at 19. KBR
further alleged that “discovery demonstrated the Military
controlled KBR’s provision of non-drinking water by
making all key decisions including, n
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