Opinion
Master Case No.: RWT 09md2083.
March 1, 2010
MEMORANDUM OPINION
On February 23, 2010, the Court held an in-court status conference during which it indicated that it was considering inviting the United States to participate in this case as amicus curiae. Two days later, the Court circulated via e-mail a Memorandum Opinion and Order in draft form and requested that the parties and the United States Attorney for the District of Maryland provide comments or suggestions. See Exs. 1-3. While the Defendants did not object, see Ex. 4, the Plaintiffs opposed the proposed Memorandum Opinion and Order and urged the Court to wait until Plaintiffs filed their opposition to Defendants' motion to dismiss [Paper No. 21] before entering any such order, see Exs. 5 6. The Court concludes that it would benefit from the opposition to and reply in support of Defendants' motion to dismiss before considering entering a Memorandum Opinion and Order inviting the United States to participate in this case asamicus curiae. Accordingly, the Court will, by separate order, defer extending an invitation to the United States to participate in this case as amicus curiae until Defendants' motion to dismiss [Paper No. 21] is fully briefed.
EXHIBIT 1
In re KBR, Inc. Burn Pit Litigation [09md2083] Julie Dohm
t sburke, woneil, bbandy, ccarroll, rbiagini, o rmatthews, skonn, thalloran, anemiroff, 02/25/2010 04:56 PM : Rod.Rosenstein Bcc: Judge Roger Titus Dear Counsel and Mr. Rosenstein:As you will recall from the February 23, 1010 conference, Judge Titus indicated that he intended to invite the United States to participate in this matter as amicus curiae. Attached are a Memorandum Opinion and Order in draft form. The parties and the United States Attorney for the District of Maryland, Rod J. Rosenstein, are invited to provide any comments or suggestions on the attached documents. Please submit to Chambers any comments or suggestions on or before Monday, March 1, 2010, at noon.
Julie Dohm
Law Clerk to the Honorable Roger W. Titus
Exhibit
EXHIBIT 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND IN RE: KBR, INC., BURN PIT LITIGATION
* * * Master Case No.: RWT 09md2083 * * This Document Relates To: * All Member Cases * ***MEMORANDUM OPINION
Forty-three separate actions have been filed in, or removed to, federal courts throughout the United States that assert various claims against KBR, Inc., Kellogg, Brown Root Services, Inc., Kellogg, Brown Root, LLC, and Halliburton Company (collectively "the KBR Defendants") and in some, but not all cases, ERKA Ltd. ("ERKA"). The common theme in these cases is that the Plaintiffs are seeking to recover damages for injuries allegedly resulting from exposure to emissions from burn pits operated by the Defendants at military bases throughout Iraq and Afghanistan or from the provision by the Defendants of contaminated water at military bases in those countries. By Order dated October 16, 2009 (and later Orders), the Judicial Panel on Multi-District Litigation transferred all of the foregoing cases to the undersigned for coordinated or consolidated pretrial proceedings.The KBR Defendants have filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction [Paper No. 21] and ERKA has filed a Motion to Dismiss for Lack of Personal Jurisdiction [Paper No. 32]. In their motion, the KBR Defendants assert that the tort actions brought by the Plaintiffs against them should be dismissed for lack of jurisdiction because (1) they are non-justiciable under the Political Question Doctrine, (2) they conflict with well-established principles of derivative sovereign immunity and (3) claims of the Plaintiffs are preempted by the Combatant Activities Exemption to the Federal Tort Claims Act, 28 U.S.C. § 2680(j). The KBR Defendants attach to their motion numerous public documents and declarations of various military personnel.
As a factual predicate for their legal arguments, the KBR Defendants contend that it is undisputed that:
• The military, not KBR, decided which method of waste disposal to utilize at a particular base — e.g., recycling, incineration, landfills, or burning;
• The military, not KBR, decided where to locate the burn pits at particular bases;
• The military, not KBR, decided where to locate the living quarters and dining facilities for military and contractor personnel in relation to the burn pit; and
• The military, not KBR, decided which types of waste could or could not be placed in a burn pit.
(Memorandum in support of Defendants' Motion to Stay Discovery Pending Resolution of Motion to Dismiss, p. 15, [Paper No. 22]). They also contend that the same decision-making and control was exercised by the military with regard to water purification and distribution facilities.
The Plaintiffs disagree, and contend that discovery is necessary to resolve factual disputes with the KBR Defendants. The Court is reluctant to authorize unnecessarily extensive discovery of military officials who are otherwise engaged in war fronts in two different countries, and has stayed discovery pending further action on the Motion to Dismiss filed by the KBR Defendants.
Reduced to its simplest terms, it is the position of the KBR Defendants that "the military exercised pervasive decision-making authority and control over the waste management and disposal judgments at issue," thus rendering this Court without jurisdiction to proceed further. In support of their legal arguments, the KBR Defendants note that "the United States military relies heavily on private contractors" to support war time activities on the battlefield (Memorandum in Support of Motion to Dismiss, p. 4) and that to entertain the Plaintiffs' tort claims would require "inappropriate judicial scrutiny and second-guessing into [military] discretionary decisions, strategies and policies." Id. at p. 5.
As noted above, the Court has declined to authorize any discovery at this juncture, especially since to do so may have an intrusive and disruptive effect on the operations of the military. That does not, however, mean that it would not be helpful to the Court to understand the position of the United States with respect to the factual issues in this case, and any observations that it may wish to make with respect to the legal issues in this case, especially since they implicate questions of deference to military judgments in two war zones.
For the foregoing reasons, this Court will, by separate Order, invite the participation of the United States of America as amicus curiae and request that it furnish to the Court, within sixty (60) days from the date of this Order, any factual information and/or documentation pertinent to the issues raised in the KBR Defendants Motion to Dismiss, together with such comment, if any, as the United States may wish to make with respect to the jurisdictional issues relating to the possible pursuit of the tort claims in this case against its contractors.
/s/ _____________________________ _____________________________ Date Roger W. Titus United States District JudgeEXHIBIT 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND IN RE: KBR, INC., BURN PIT LITIGATION * * * Master Case No.: RWT 09md2083 * * This Document Relates To: * All Member Cases ***ORDER
In accordance with the accompanying Memorandum Opinion, it is, this _____ day of _________________, 2010, by the United States District Court for the District of Maryland,ORDERED, that the United States of America is requested to participate in this matter as an amicus curiae; and it is further
ORDERED, that the amicus curiae is requested to advise the Court whether it was:
• The military or the KBR Defendants who decided which method of waste disposal to utilize at a particular base — e.g., recycling, incineration, landfills, or burning;
• The military or the KBR Defendants who decided where to locate the burn pits at particular bases;
• The military or the KBR Defendants who decided where to locate the living quarters and dining facilities for military and contractor personnel in relation to the burn pit; and
• The military or the KBR Defendants who decided which types of waste could or could not be placed in a burn pit;
• The military or the KBR Defendants who decided on the manner, method and location of water purification and distribution facilities at particular bases;
and it is further
ORDERED, that the amicus curiae is invited to submit a memorandum setting forth its position, if any, on the legal issues in this case; and it is further
ORDERED, that the amicus curiae is requested to file its memorandum and any accompanying documentary information within sixty (60) days of the date of this Order; and it is further
ORDERED, that the Clerk of this Court furnish to the United States Attorney for the District of Maryland a copy of this Order.
/s/ __________________ Roger W. Titus United States District JudgeEXHIBIT 4
RE: In re KBR, Inc. Burn Pit Litigation [09md2083] Matthews, Robert t o Julie_Dohm 02/26/2010 03:33 PM : sburke, woneil, "Bandy, Bikram", "Biagini, Ray", "Konn, Shannon", Cc: "Halloran, Timothy", anemiroff, Rod.Rosenstein, "Martin, Joseph", jrice Dear Ms. Dohm:The KBR Defendants have reviewed the Memorandum Opinion Inviting Amicus Curiae and Order Inviting Amicus Curiae prepared by Judge Titus. We agree with the Court's overall approach and believe Judge Titus has appropriately identified the key jurisdictional questions that are now before the Court. Therefore, we have no suggested revisions and urge the Court to proceed.
For the KBR Defendants Robert Matthews
Robert A. Matthews | Partner
1900 K Street NW | Washington, DC 20006
McKenna Long Aldridge LLP Tel: 202.496.7737 | Fax: 202.496.7756 rmatthews@mckennalong.com From:
Sent: Thursday, February 25, 2010 4:56 PM
To: sburke@burkeoneil.com; woneil@burkeoneil.com; Bandy, Bikram; Carroll, Christina; Biagini, Ray; Matthews, Robert; Konn, Shannon; Halloran, Timothy; anemiroff@archerlaw.com; Rod.Rosenstein@usdoj.gov
Subject: In re KBR, Inc. Burn Pit Litigation [09md2083]
Dear Counsel and Mr. Rosenstein:
As you will recall from the February 23, 1010 conference, Judge Titus indicated that he intended to invite the United States to participate in this matter as amicus curiae. Attached are a Memorandum Opinion and Order in draft form. The parties and the United States Attorney for the District of Maryland, Rod J. Rosenstein, are invited to provide any comments or suggestions on the attached documents. Please submit to Chambers any comments or suggestions on or before Monday, March 1, 2010, at noon.
Julie Dohm
Law Clerk to the Honorable Roger W. Titus
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EXHIBIT 5
RE: In re KBR, Inc. Burn Pit Litigation [09md2083] t Julie_Dohm, bbandy, ccarroll, rbiagini, Susan Burke o rmatthews, skonn, thalloran, anemiroff, 03/01/2010 12:31 PM : Rod.Rosenstein Dear Ms. Dohm,Please find attached a corrected set of comments that includes an additional citation from the Western District of Pennsylvania. Thank you.
Susan L. Burke
Burke PLLC
1000 Potomac Street, Suite 150
Washington, DC 20007
t.202.232.5504
c.202.445.1409
f.202.232.5513
sburke@burkeoneil.com
Confidential Privileged
Unless otherwise indicated or obvious from its nature, the information contained in this communication is attorney-client privileged and confidential information/work product. This communication is intended for the use of the individual or entity named above. If the reader of this communication is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error or are not sure whether it is privileged, please immediately notify us by return e-mail and destroy any copies — electronic, paper or otherwise — which you may have of this communication.
From: Julie_Dohm@mdd.uscourts.gov [mailto:Julie_Dohm@mdd.uscourts.gov]
Sent: Thursday, February 25, 2010 4:56 PM
To: sburke@burkeoneil.com; woneil@burkeoneil.com; bbandy@mckennalong.com; ccarroll@mckennalong.com; rbiagini@mckennalong.com; rmatthews@mckennalong.com; skonn@mckennalong.com; thalloran@mckennalong.com; anemiroff@archerlaw.com; Rod.Rosenstein@usdoj.gov
Subject: In re KBR, Inc. Burn Pit Litigation [09md2083]
Dear Counsel and Mr. Rosenstein:
As you will recall from the February 23, 1010 conference, Judge Titus indicated that he intended to invite the United States to participate in this matter as amicus curiae. Attached are a Memorandum Opinion and Order in draft form. The parties and the United States Attorney for the District of Maryland, Rod J. Rosenstein, are invited to provide any comments or suggestions on the attached documents. Please submit to Chambers any comments or suggestions on or before Monday, March 1, 2010, at noon.
Julie Dohm
Law Clerk to the Honorable Roger W. Titus
Exhibit
EXHIBIT 6
IN THE UNITED STATES DISTRICT COURT FOR DISTRICT OF MARYLAND In Re: KBR Burn Pit Litigation 8:09-MD-02083-RWTPLAINTIFFS' OPPOSITION TO THE COURT'S PROPOSED DISCOVERY ON THE UNITED STATES — SUBMITTED TO CHAMBERS ONLY
Plaintiffs respectfully oppose the Court's plan to serve discovery on the United States. In the event the Court overrules these objections and proceeds to serve discovery on the United States, Plaintiffs respectfully request that the Court include the questions proposed by Plaintiffs below.Plaintiffs object to the Court's plan to serve its own discovery on the United States for four reasons:
First, the Federal Rules establish that discovery is the province of the litigants, not the Court. See, e.g., Lowery v. Alabama Power Co., 483 F.3d 1184, 1218 (11th Cir. 2007) (district court should not insert itself into the fray by engaging in its own discovery, and should not participate in a one-sided subversion of the rules.) Yet the Court's proposed Memorandum and Order essentially serve a form of discovery on the United States by soliciting answers to specific questions. Although the Court may invite the United States to intervene or participate as amici, the Court should not go further and serve questions on the United States.
Second, even if the Court had the power to conduct discovery, the Court acts prematurely by proceeding before the Court has had the benefit of Plaintiffs' opposition brief. As presently crafted, the Court's proposed Memorandum and Order accepts Halliburton/KBR's framing of the relevant facts and issues in these lawsuits, including its argument that these lawsuits raise the question of "deference to military judgments in two war zones." See Court's Proposed Memorandum and Proposed Order. Not surprisingly, as the Court's proposed discovery tracks the issues as Halliburton/KBR unilaterally framed them, Halliburton/KBR now supports that discovery without modification.
Plaintiffs respectfully submit that the Court should frame its discovery questions after it has had the opportunity to review Plaintiffs' oppositional briefing, and the decisional law cited therein. Plaintiffs' Opposition will explain why Halliburton/KBR errs in framing the issues, and errs in claiming these lawsuits raise political questions not within the purview of this Court. The political question doctrine was intended to protect against judicial overreaching into executive functions, such as the war-making function. See Marbury v. Madison, 1 Cranch 137, 164-166, 2 L.Ed. 60 (1803); Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Aboard Tanker, 577 F.2d 1196, 1203 (5th Cir. 1978) ("[T]he genesis of the political question is the constitutional separation and disbursement of powers among the branches of government.").
As the Supreme Court has repeatedly ruled, however, not all disputes arising in the context of war raise political questions. Indeed, the Supreme Court held the federal courts have the power (and obligation) to adjudicate disputes far more closely related to the military's own warmaking power than this dispute. For example, the Supreme Court ruled in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and again in Boumediene v. Bush, 128 S.Ct. 2229, 2277 (2008), that the federal courts are obliged to hear disputes arising from the military's designation of combatant status, which is clearly an "important incident[] of war," Hamdi, 542 U.S. at 518 (2004). To similar effect, the Supreme Court reversed a presidential directive ordering the seizure of steel mills to protect the production of armaments for the Korean War, Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579 (1952), and reviewed on the merits a presidential order resolving the Iranian hostage crisis, Dames Moore v. Regan, 453 U.S. 654 (1981). Halliburton/KBR's misconduct occurred in the midst of the Iraq and Afghanistan wars, but that fact, standing alone, does not deprive the judiciary of its power to adjudicate the tort claims of American service members against an American corporation.
Wars are not litigation-free zones for defense contractors. See, e.g., McMahon v. Presidential Airways, 502 F.3d 1331, 1366 (11th Cir. 2007) (no defense for private contractors merely because operating in a combat zone); Lessin v. Kellogg Brown Root, 2006 WL 3940556 at *5 (S.D.Tex. June 12, 2006) (declining to preempt claims against military logistics contractor in Iraq); Whitaker v. Kellogg, Brown and Root, 444 F.Supp.2d 1277 (M.D. Ga. 2006) (no protection from liability when the alleged negligent act was performed by contractor, not government); Fisher v. Halliburton, 390 F.Supp.2d 610, 615-16 (S.D. Tex. 2005) (cannot apply defense to service contractors because designed to protect against state product liability claims only) and Harris et al. v. Kellogg Brown Root, Services, Inc., C.A. No. 08-563 (W.D. Pa. March 31, 2009).
Plaintiffs' claims do not raise a political question. The Court of Appeals for the Fourth Circuit explained in Tiffany v. United States, 931 F.2d 271 (4th Cir. 1991), a lawsuit cannot, by definition, raise a political question if the military has already issued regulations and promulgated policy directives governing the conduct being challenged by the lawsuit. As will be made apparent by Plaintiffs' oppositional briefing, Plaintiffs are not challenging any military decision, but rather are seeking recourse for the serious harms caused by Halliburton/KBR's blatant refusal to abide by the terms of the LOGCAP contract and task orders, which required Halliburton/KBR to operate burn pits and treat water in a manner consistent with the health and safety of the service members. Even in those instances when Halliburton/KBR was directed or permitted to use a burn pit, Halliburton/KBR created hazardous exposures that harmed Plaintiffs by failing to abide by the controlling military regulations and directives governing waste disposal and water treatment. These claims are comparable to those raised in Lane v. Halliburton, 529 F.3d 548, 558-560 (11th Cir. 2008) and McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (11th Cir. 2007), and are able to be adjudicated without interfering with, or second-guessing in any way, military decision-making.
In short, Plaintiffs believe that the Court will have a greater appreciation for the disputed facts, and the manner in which these disputed facts fit within the spectrum of decisional law about defense contractors, after Plaintiffs file their consolidated complaint, joint statement of facts, and opposition to Halliburton/KBR's motion to dismiss. After this briefing has been reviewed, the Court likely will be able to frame questions for the United States in an impartial manner. At present, it is difficult for the Court to avoid being unduly influenced by Halliburton/KBR's arguments and reasoning, as that is the only paper that has been filed with the Court. Plaintiffs respectfully suggest that it is important for the Court to avoid tipping the scales of justice until such time as the Court has had the benefit of Plaintiffs' oppositional briefing.
Third, although the Court purports to be lessening these lawsuits' burden on the military by serving judicial discovery, the Court's Proposed Order will unduly and unnecessarily burden the military by eliciting facts that are not essential to the resolution of the dispute before the Court. Stated differently, even if the military answered each of the Court's questions in the affirmative, those answers would not resolve whether these lawsuits raise political questions, and would not shed light on the actual disputes that need to be adjudicated. The military made a series of decisions that impacted the burning of waste and the treatment of water. These military decisions are spelled out in writing and at length in regulations, directives, contracts, task orders, army doctrinal manuals, and the like. This body of military decision-making was not provided to the Court by Halliburton/KBR, and was wholly ignored by Halliburton/KBR. Even in those instances when the military permitted Halliburton/KBR to use a burn pit for waste disposal, Halliburton/KBR was obliged, but failed, to burn materials in a manner that avoided or lessened any harmful health impact on service members. Instead, Halliburton/KBR operated the burn pits in a manner that created unnecessary hazardous exposures. These task orders and other controlling materials were not provided to the Court by Halliburton/KBR. Plaintiffs will append the materials in their possession to their oppositional briefing, and submit an affidavit explaining why discovery is needed to obtain the complete set of relevant task orders from Halliburton/KBR.
As was admitted by Halliburton/KBR officials during trial in a fraud case in the Eastern District of Virginia, Halliburton/KBR has all of the task orders and military directives in its possession. This reduces any potential burden on the military, as Halliburton/KBR are able to produce most, if not all, of the documents this Court should review before ruling on the motion to dismiss.
This body of military decision-making over waste disposal and water treatment is not in dispute. Rather, the dispute before the Court turns on whether (1) Halliburton/KBR abided by the military's decisions (as alleged without supporting evidence by Halliburton/KBR) or (2) Halliburton/KBR wholly and systemically ignored these military decisions and instead acted in a manner that served its own financial goals but seriously harmed Plaintiffs.
As set forth in the Complaints, and as will be elaborated upon in the upcoming briefing, Plaintiffs contend that the latter occurred. Plaintiffs will append declarations from former Halliburton/KBR employees who will attest Halliburton/KBR repeatedly and blatantly violated the military's regulations, promulgated guidance, verbal instructions and other directives. For example, Plaintiffs will append evidence to their upcoming Opposition to show Halliburton/KBR:
(1) violated the military's regulations and promulgated guidance on when and how to burn hazardous materials,
(2) violated the military's regulations and promulgated guidance on when and how to burn medical waste,
(3) violated the military's regulations and promulgated guidance on whether to combine wastes for burning,
(4) violated the military's regulations and promulgated guidance on the timing and duration of burning,
(5) ignored and rebuffed the military's repeated demands for the installation of incinerators,
(6) violated the military's regulations and promulgated guidance on the methods to be used for water treatment,
(7) failed to monitor water quality as required by the military,
(8) intentionally distributed contaminated water, and
(9) deceived the military through a series of written and verbal misrepresentations that prevented the military from discovering the full scope of Halliburton/KBR's egregious misconduct.
In short, even if the military answers the Court's four questions, those answers will neither prove nor disprove the merits of Plaintiffs' claims. The military simply does not know whether Halliburton/KBR burned only what the military told it to burn because the military lacks the resources to supervise Halliburton/KBR employees in two theatres of war. For that reason, in the declarations appended to Halliburton/KBR's motion to dismiss, each military official carefully limited his or her observations about Halliburton/KBR's purported contract compliance to modest and time-limited personal observations. Yet it is incumbent on this Court to learn whether these facts are in genuine dispute before ruling on Halliburton/KBR's motion to dismiss. No legitimate federal interest is served in immunizing Halliburton/KBR from liability if Halliburton/KBR blatantly and repeatedly ignored the military's decision-making.
Plaintiffs have obtained a substantial amount of evidence about Halliburton/KBR's misconduct, which will be appended to the Plaintiffs' Opposition. The full scope of this injury-causing misconduct, however, can only be discovered by conducting discovery on Halliburton/KBR. It is for this reason that Plaintiffs urge the Court to permit discovery on Halliburton/KBR. Such discovery does not burden the military, but rather benefits the military by ensuring that defense contractors do not get a free pass to ignore the military's instructions, particularly when such misconduct harms military men and women.
Fourth , in the event the Court decides to serve judicial discovery on the military before reviewing Plaintiffs' opposition brief, Plaintiffs respectfully suggest the Court add the following questions to the Court's discovery requests:
(1) Which burn pits, if any, were designed and operated wholly and exclusively by the military without any contractor involvement from the year 2003 to the present?
(2) Which water treatment systems, if any, were designed and operated wholly and exclusively by the military without any contractor involvement from the year 2003 to the present?
(3) Did the military attempt to grant Halliburton/KBR permission to breach the terms of the LOGCAP?
(4) Did the military attempt to grant Halliburton/KBR permission to violate military regulations and promulgated guidance on disposal of hazardous materials?
(5) Did the military attempt to grant Halliburton/KBR permission to violate military regulations and promulgated guidance on the tracking of hazardous material?
(6) Did the military attempt to grant Halliburton/KBR permission to violate military regulations and promulgated guidance on the use of dangerous accelerants?
(7) Did the military attempt to grant Halliburton/KBR permission to distribute water that was contaminated and failed to conform to the military's regulations and promulgated guidance?
(8) Will permitting injured service members to obtain documents from Halliburton/KBR create a serious burden on the war effort?
(9) Will permitting injured service members to depose Halliburton/KBR officials and employees create a serious burden on the war effort?
(10) Will permitting the federal courts to adjudicate whether Halliburton/KBR violated military regulations and promulgated guidance, and in so doing seriously injured service members, create a serious burden on the war effort?
(11) Does the military have any evidence relating to whether Halliburton/KBR violated the military's regulations or promulgated guidance regarding waste disposal?
(12) Does the military have any evidence relating to whether Halliburton/KBR violated the military's regulations or promulgated guidance regarding water treatment?
(13) Does any single military official have the power to grant Halliburton/KBR verbal permission to deviate from the terms of the contract negotiated with the military?
(14) Is waste disposal considered combat?
(15) Is water treatment considered combat?
In sum, Plaintiffs respectfully request that the Court refrain from serving any discovery on the United States until such time as the Court has reviewed Plaintiffs' consolidated complaint, joint statement of facts, and opposition brief. In the event the Court proceeds before such review, Plaintiffs respectfully request that the Court amend the Order to include the questions proposed by Plaintiffs as well as those four questions framed by Defendants.
Date: March 1, 2010 Respectfully submitted, /s/ ____________________________ Susan L. Burke BURKE PLLC, 1000 Potomac Street, NW, Suite 150 Washington, DC 20007 Joseph F. Rice MOTLEY RICE LLC 28 Bridgeside Blvd, Mt. Pleasant, SC 29464