Metzgar v. KBR, Inc., 744 F.3d 326 (4th Cir. 2014)
In KBR, the Fourth Circuit explored an emerging area of tort law. The case arose incident to the United States government’s extensive use of private contractors in Afghanistan and Iraq, to support military bases and operations. The case provides important procedural protections against summary dismissal of state tort law and contract breach claims by those returning veterans allegedly injured by those contractors’ war-theater activities. Specifically, the decision safeguards those veterans’ right to pretrial discovery respecting their injury-related claims.
In this litigation, the defendant contractors, KBR and others, provided waste disposal and water treatment services at military bases in each country. The defendants’ waste disposal operations allegedly involved extensive use of open-air burning of solid and liquid waste materials. Their water treatment procedures allegedly failed to incorporate adequate testing and pre-treatment protocols, and resulted in the provision of contaminated drinking water.
The plaintiffs, mostly servicemembers, and from forty-two states, brought state tort law and contract breach actions in numerous federal district courts. Their claims alleged injuries, and in some instances death, caused by the contractors’ performance of their duties. The Judicial Panel on Multidistrict Litigation consolidated the several cases, and transferred them to the District of Maryland for pretrial proceedings. The defendants moved to dismiss under FRCP 12(b)(6), on grounds of (1) non-justiciability under the political question doctrine, (2) derivative sovereign immunity under the ‘discretionary function’ exception to the Federal Tort Claims Act (“FTCA,” or, “the Act”), and, (3) and preemption of state tort laws under the ‘combatant activities’ exception to the FTCA. The district court initially denied the motion without prejudice. Thereafter, the defendants reasserted it. The court then agreed with the defendants on all three grounds, and dismissed the plaintiffs’ cases absent any significant discovery. The Fourth Circuit disagreed and reversed, mandating the plaintiffs’ entitlement to pretrial discovery.
The Fourth Circuit initially noted its standards of review. For factual findings, it applied the ‘clear error’ standard, however, for legal conclusions, it undertook de novo review. It then analyzed each of the three grounds upon which the district court relied to grant the defendants’ dismissal motion.
Under the political question doctrine, the court initially discussed the holding, and the six-part test, of the Supreme Court’s decision in Baker v. Carr, 369 U.S. 186 (1962). In Baker, the Supreme Court noted that courts, based on separation of powers considerations, do not resolve what they deem as political questions, relegating them for decision to the executive or legislative branches of government. The court went on to cite it own prior cases to note that while military decisions typically lie within the purview of the executive, yet, merely acting pursuant to military orders does not necessarily insulate a claim from judicial review.
The court favorably cited Taylor v. Kellogg Brown & Root Services, Inc., 658 F.3d 402 (4th Cir. 2011), and followed its two-part, Baker-derived test for considering under what circumstances a government contractor’s actions may invoke the non-justiciability of a political question. That test first examines the extent of the military’s control over the contractor, and, second, evaluates the nexus between national defense interests and the military’s decisions governing the contractor’s actions. With respect to the first Taylor factor, the court noted the existence of conflicting government documents and affidavits respecting the military’s operational control over the defendants in their performance of waste disposal and water treatment activities. As to the nexus with national defense interests, the court reasoned that the defendants’ ‘proximate cause’ defense would not necessarily require the courts to evaluate the propriety of military-made decisions respecting the defendants’ performance of their contractual duties; instead, it must only determine whether the military prescribed that the defendants perform in a specific way. The court noted the record’s lack of information on these issues.
As to the defendants’ claim for derivative sovereign immunity under the ‘discretionary function’ exception to the FTCA, the court initially noted that the Act does not specifically include government contractors within its scope. Yet, it recognized that a government contractor may derivatively claim such immunity under limited circumstances, as described by the Supreme Court in Yearsley v. W. A. Ross Construction Co., 309 U.S. 18 (1940). Those circumstances include when the government has authorized the contractor’s actions, and such authorization results from a valid exercise of constitutional power. In this case, the plaintiffs’ claimed that the defendants’ exceeded their lawful authority in the performance of their contractual duties. The court ultimately found that without discovery on this issue, the district court lacked any basis to sustain the defendants’ immunity claim.
Finally, turning to the FTCA’s ‘combatant activities’ exception, and its preemption of state tort law claims, the court noted that the plaintiffs’ also claimed the defendants’ breach of contractual duties. Thus, this exception would not, in any event, foreclose these contract-based claims pursuant to a FRCP 12(b)(6) motion. It then turned to the specifics of the exception. It recognized its application only to claims “arising out of the combatant activities of military or naval forces,” citing 28 U.S.C. § 2680(j), and the various tests employed by federal circuits to apply the exception as derived from the Supreme Court’s decision in Boyle v. United Technologies Corp., 487 U.S. 500 (1988).
The court noted that the Boyle holding involves a three-step analysis to determine the propriety of federal preemption. A court must initially define the uniquely federal interests at issue in a given case, determine whether there exists a significant conflict between such interests and state law, and, the adoption of a fact-specific test to ensure preemption of state laws that clash with the relevant federal interests. Here, the court determined a unique federal interest in maintaining control over battlefield conduct and decisions. Next, it ruled that any state tort law that touches upon such conduct and decisions would directly conflict with this federal interest. Finally, it derived from other federal circuit decisions a test to preempt state tort law only when such conflict exists; the contractor’s activities must be integrated into combatant activities over which the military maintains command authority.
Here, the court found that the defendants’ provision of waste disposal and water treatment functions clearly aided military operations in a combat area. Yet, the question remained whether the military authorities actually maintained command authority over these activities. Only discovery proceedings could answer this question.
Without question, federal courts continue to utilize summary disposition procedures more fully than do Virginia’s courts. Yet, in this more challenging context, plaintiffs maintain the right to meaningful discovery under the FRCP to avoid preemptory dismissal of their claims. Astute trial counsel should assert their clients’ rights to such discovery, and, if denied, preserve their objections and promptly seek appellate court relief.