Guest Blogger Professor Jean Macchiaroli Eggen - In Honor of Veterans Day: Resolving the Complex Legal Issues of the Iraq and Afghanistan Burn Pit Litigation

Every war results in battlefield casualties and injuries. Every war also results in unanticipated health consequences to military service personnel, persons assisting the military, and civilians. In recent history, the Vietnam War was marked by the short- and long-term health consequences of Agent Orange; the 1991 Gulf War left veterans returning home manifesting symptoms of the mysterious “Gulf War Syndrome;” and the ongoing wars in Iraq and Afghanistan have resulted in the adverse health effects of exposure to fumes from burn pits and other environmental contaminants. The burn pits are open areas in which trash, discarded munitions, and other materials were burned – usually by private contractors working under contract for the U.S. Government – before troops moved out of the area. The term is also used generally to encompass the separate water treatment activities of the contractors. The list of illnesses alleged to be caused by these exposures includes various cancers, cardiac conditions, and numerous other organ conditions as well as generalized symptoms. The U.S. Department of Veterans Affairs has set up a health registry for veterans and current servicemembers who were deployed in the Middle East.

The most obvious legal challenge for persons claiming injury from such war-related exposures is causation. For example, it took decades for the Veterans Administration to acknowledge and compensate service personnel for a long list of health consequences from exposure to Agent Orange. But here I will discuss the complex immunity question that arises when servicemembers seek to recover damages from the private contractors – KBR, Inc. and Halliburton being frequently named in litigation – who act pursuant to contracts with the Government. That question has recently reached the courts in the context of the KBR Burn Pit Litigation and has gotten the attention of the U.S. Supreme Court.

In the Federal Tort Claims Act (FTCA) the federal government waived its sovereign immunity for negligence actions, but several substantial exceptions apply, including claims for discretionary functions of the U.S., claims arising from combatant activities, and claims of military servicemembers. Government contractors are expressly excluded from the 

FTCA’s waiver provisions. In the burn pit litigation, the servicemembers’ claims against the contractors have raised several related questions:

• Does the political question doctrine render the case nonjusticiable?
• Do the contractors have “derivative sovereign immunity” for their actions – in essence allowing them to piggyback on the immunity of the U.S. Government?
• If so, what is the basis of the U.S. Government’s (and by extension the contractors’) immunity?
• Is it appropriate for state tort law to be used to resolved these claims? Or is this a matter of such high federal (military) interest that state tort law should not apply?

In June, 2014, the U.S. Supreme Court addressed, at conference, KBR, Inc. v. Metzgar (Docket. No. 13-1241), deciding to request briefing by the Solicitor General on the issues presented in the case. The petition is still pending. In the case below, In re KBR, Inc. Burn Pit Litigation, 744 F.3d 326 (4th Cir. 2014), the 4th Circuit reversed the district court’s dismissal of the litigation and held that the cases could go forward against the contractors.

Several underlying issues must be resolved before the fundamental immunity question can be answered:

 

• Political Question Doctrine. Was the 4th Circuit correct in using a two-part test that looked at (1) whether the contractor was under the military’s control and (2) whether national defense interests were closely intertwined with the military’s decisions regarding the contractor’s conduct? This necessarily involves determining the degree to which waste disposal and provision of water in a war zone is an essential function of the U.S. military regardless of who does the work. It also asks whether allowing a court to entertain a tort action would require the court to second-guess sensitive judgments made by the military. The 4th Circuit held that this test was not met.
  
  
• Combatant Activities. Is state tort law preempted by federal law on the combatant activities exception? What constitutes a combatant activity, and in particular are the activities of the contractors vis a vis the burn pits “combatant activities,” thereby requiring dismissal of the actions? This issue requires deciding to what extent the federal interest involved (the military’s battlefield conduct and decisions) significantly conflicts with state tort law. See generally Boyle v. United Technologies Corp., 487 U.S. 500 (1988). The 4th Circuit concluded that although the evidence showed that “the military controlled KBR to some degree, . . . the extent to which KBR was integrated into the military chain of command is unclear.” 744 F.3d at 351. Accordingly, at this early stage of the litigation, dismissal on this ground was not warranted.
  
  
• Derivative Sovereign Immunity. Are the contractors entitled to rely on the FTCA’s discretionary function exception if the Government is immune on that basis? This concept of derivative sovereign immunity may only apply if the contractor fully adhered to the terms of its contract with the Government. Ultimately, however, the 4th Circuit concluded that the evidence was insufficient at this stage in the litigation to determine whether KBR acted in conformity with its Government contract.

Resolving these issues involves a clash of public policies. On the one hand, the Government wants to have competent contractors willing to engage in public service of this sort in war zones. Vulnerability to litigation may be a significant deterrent. On the other hand, if the contractors may not be sued for health claims associated with exposure to chemicals and other pathogens in the air and water as a result of their wartime burn pit and other activities under contract with the Government, what recourse will remain for injured servicemembers? As with the Agent Orange situation, servicemembers will have to wait for the Government to determine which illnesses are associated with which types of exposures and list them for VA compensation. This could take a very long time indeed.

A 2011 Institute of Medicine report on the health impact of exposure to burn pits may be downloaded here.

Widener University School of Law has been operating a Veterans Law Clinic since 1997 which has provided legal assistance to veterans residing in Pennsylvania and Delaware, including those whose meritorious claims for Agent Orange VA benefits have been denied. More information may be obtained here.

-Professor Jean Macchiaroli Eggen