Alan Metzgar v. KBR, Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1430
In re: KBR, INCORPORATED, Burn Pit Litigation
--------------------------
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
MONTIJO; 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; FLOYD JAMES JOHNSON, SR.; TAMRA C. JOHNSON;
RICHARD LEE KEITH; DANIEL SANTIAGO MORALES; PHILLIP
MCQUILLAN; ILDEBBRANDO PEREZ; LUIGI ANTONIO PROVENZA; RUTH
ANN REECE; EDUARDO 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 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
Plaintiffs - Appellants,
v.
KBR, INCORPORATED; KELLOGG BROWN & ROOT, LLC; HALLIBURTON
COMPANY; KELLOGG BROWN & ROOT SERVICES, INCORPORATED; BROWN
AND ROOT SERVICES; DII INDUSTRIES, LLC; HALLIBURTON ENERGY
SERVICES, INC.; KBR HOLDINGS, LLC; KELLOGG BROWN & ROOT,
INCORPORATED; KELLOGG BROWN & ROOT INTERNATIONAL,
INCORPORATED; KBR GROUP HOLDINGS INCORPORATED; KBR TECHNICAL
SERVICES, INCORPORATED,
Defendants – Appellees,
and
ERKA LTD,
Defendant.
2
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:09-md-02083-RWT, 8:09-cv-00744-RWT, 8:09-cv-02739-RWT, 8:09-
cv-02740-RWT, 8:09-cv-02741-RWT, 8:09-cv-02742-RWT, 8:09-cv-
02743-RWT, 8:09-cv-02744-RWT, 8:09-cv-02745-RWT, 8:09-cv-02746-
RWT, 8:09-cv-02747-RWT, 8:09-cv-02748-RWT, 8:09-cv-02749-RWT,
8:09-cv-02750-RWT, 8:09-cv-02979-RWT, 8:09-cv-02980-RWT, 8:09-
cv-02981-RWT, 8:09-cv-02982-RWT, 8:09-cv-02983-RWT, 8:09-cv-
02984-RWT, 8:09-cv-02985-RWT, 8:09-cv-02986-RWT, 8:09-cv-02987-
RWT, 8:09-cv-03299-RWT, 8:09-cv-03300-RWT, 8:09-cv-03301-RWT,
8:09-cv-03302-RWT, 8:09-cv-03303-RWT, 8:09-cv-03304-RWT, 8:09-
cv-03305-RWT, 8:09-cv-03306-RWT, 8:09-cv-03307-RWT, 8:09-cv-
03308-RWT, 8:09-cv-03309-RWT, 8:09-cv-03310-RWT, 8:09-cv-03311-
RWT, 8:09-cv-03312-RWT, 8:09-cv-03313-RWT, 8:09-cv-03314-RWT,
8:09-cv-03315-RWT, 8:09-cv-03316-RWT, 8:10-cv-00388-RWT, 8:10-
cv-00389-RWT, 8:10-cv-00390-RWT, 8:10-cv-00814-RWT, 8:10-cv-
00815-RWT, 8:10-cv-00836-RWT, 8:10-cv-01160-RWT, 8:11-cv-00336-
RWT, 8:11-cv-00337-RWT, 8:11-cv-00338-RWT, 8:11-cv-01092-RWT,
8:11-cv-02634-RWT, 8:11-cv-02635-RWT, 8:11-cv-03292-RWT, 8:11-
cv-03542-RWT, 8:12-cv-03070-RWT)
Argued: October 30, 2013 Decided: March 6, 2014
Before DIAZ and FLOYD, Circuit Judges, and Joseph F. ANDERSON,
Jr., United States District Judge for the District of South
Carolina, sitting by designation.
Vacated and remanded by published opinion. Judge Floyd wrote
the opinion, in which Judge Diaz and Judge Anderson have joined.
ARGUED: Susan L. Burke, BURKE PLLC, Washington, D.C., for
Appellants. Robert A. Matthews, MCKENNA LONG & ALDRIDGE LLP,
Washington, D.C., for Appellees. ON BRIEF: Joseph Rice,
Frederick C. Baker, James W. Ledlie, MOTLEY & RICE, LLP, Mt.
Pleasant, South Carolina, for Appellants. Raymond B. Biagini,
Daniel L. Russell, Jr., Shannon G. Konn, MCKENNA LONG & ALDRIDGE
LLP, Washington, D.C., for Appellees.
3
FLOYD, Circuit Judge:
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.” Comm’n on Wartime Contracting in Iraq
and Afghanistan, At What Risk? Correcting Over-Reliance on
Contractors in Contingency Operations 1 (Feb. 24, 2011) (laying
out the findings of a bipartisan congressional commission). At
times, the number of contract employees has exceeded the number
of military personnel alongside whom they work in these
warzones. Id. Courts—including this Court—have struggled with
how to treat these contractors under the current legal
framework, which protects government actors but not private
contractors from lawsuits in some cases. See, e.g., Boyle v.
United Techs. Corp., 487 U.S. 500 (1988); 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); Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009);
Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271(11th Cir. 2009). This case requires us to make another
contribution to this changing legal landscape.
Appellees are companies that contracted with the United
States government to provide certain services at military bases
4
in Iraq and Afghanistan, including waste disposal and water
treatment. Appellants contend that they suffered harm as a
result of the contractors’ waste disposal and water treatment
practices and brought state tort and contract claims to seek
redress for their alleged injuries. Prior to discovery, the
district court dismissed Appellants’ claims, holding that (1)
the claims were nonjusticiable, (2) the contractors were immune
from suit, and (3) federal law preempted the state tort laws
underlying Appellants’ claims. Because the district court
lacked the information necessary to dismiss Appellants’ claims
on these bases, we vacate the district court’s decision and
remand this case for further proceedings consistent with this
opinion.
I.
The Army contracted with Appellees KBR, Inc.; Kellogg Brown
& Root LLC; Kellogg Brown & Root Services, Inc.; and Halliburton
(collectively, KBR) to provide waste disposal and water
treatment services on military bases in Iraq and Afghanistan.
In fifty-eight separate complaints, Appellants—the majority of
whom are United States military personnel—(Servicemembers)
brought various state tort and contract claims, including the
following causes of action: negligence; battery; nuisance;
negligent and intentional infliction of emotional distress;
5
willful and wanton conduct; negligent hiring, training, and
supervision; breach of duty to warn; breach of contract; and
wrongful death. Many of the pending cases are purported class
actions. The Servicemembers contend that they suffered injuries
as a result of KBR’s waste disposal and water treatment
practices. According to the Servicemembers, these injuries
occurred because KBR “violated military directives in its
performance of waste disposal and water treatment services” and
breached LOGCAP III—its contract with the government.
“LOGCAP” stands for “Logistics Civil Augmentation Program.”
Under that program, which the Army established in 1985,
“civilian contractors [may] perform selected services in wartime
to augment Army forces” and “release military units for other
missions or fill shortfalls.” Army Reg. 700-137, at 1-1 (Dec.
16, 1985). On December 14, 2001, the Army awarded the LOGCAP
III contract to KBR. LOGCAP III is a ten-year contract that
governs a wide array of services on military bases in Iraq,
Afghanistan, Kuwait, Djibouti, Jordan, Kenya, Uzbekistan, and
Georgia, including waste disposal, water treatment, and other
vital services. The military executes LOGCAP III through
various “task orders” that incorporate “statements of work,”
which define KBR’s responsibilities.
In their First Amended Complaint, the Servicemembers
contend that KBR violated LOGCAP III’s waste management and
6
water treatment components in two major ways. First, the
Servicemembers allege that KBR failed to properly handle and
incinerate waste by “burn[ing] vast quantities of unsorted waste
in enormous open air burn pits with no safety controls” from
2003 to the present. They aver that the burned waste included
trucks, tires, rubber, batteries, Styrofoam, metals, petroleum,
chemicals, medical waste, biohazard materials, human remains,
asbestos, and hundreds of thousands of plastic water bottles. A
report that the Department of Defense presented to Congress
identifies many of these items as “prohibited from burning.”
Dep’t of Defense, Report to Congress on the Use of Open-Air Burn
Pits by the United States Armed Forces 6 (Apr. 28, 2010).
According to the Servicemembers, the smoke from these burn pits
contained “carcinogens and respiratory sensitizers . . .,
creating a severe health hazard [and] potentially causing both
acute and chronic health problems.” Second, the Servicemembers
contend that KBR provided contaminated water to military forces.
Specifically, they argue that KBR did not perform water quality
tests or ensure that water contained proper levels of chlorine
residual.
On October 16, 2009, the Judicial Panel on Multidistrict
Litigation transferred all of the cases to the District of
Maryland for consolidated pretrial proceedings. KBR filed its
first motion to dismiss for lack of subject matter jurisdiction
7
under Federal Rule of Civil Procedure 12(b)(1) on January 29,
2010. KBR argued that (1) the Servicemembers’ claims are
nonjusticiable under the political question doctrine; (2) KBR is
entitled to “derivative sovereign immunity” based on the
“discretionary function” exception to the federal government’s
waiver of immunity in the Federal Tort Claims Act (FTCA), 28
U.S.C. §§ 1346(b), 2671 et seq.; and (3) the FTCA’s “combatant
activities” exception preempts the state tort laws underlying
the Servicemembers’ claims. The district court denied the first
motion to dismiss without prejudice, concluding that it did not
have enough information to decide whether to dismiss for lack of
subject matter jurisdiction. See In re KBR, Inc., Burn Pit
Litig. (Burn Pit I), 736 F. Supp. 2d 954, 957 (D. Md. 2010).
The court found that the political question doctrine, derivative
sovereign immunity, and the combatant activities exception did
not compel dismissal based on the facts alleged in the
complaint. However, due to its concern about unleashing “the
full fury of unlimited discovery” on “government contractors
operating in war zones,” the court asked the parties to submit a
joint discovery plan for limited jurisdictional discovery. Id.
at 979.
On December 10, 2010, the district court stayed the
proceedings in this case in light of the Fourth Circuit’s
pending decisions in Al-Quraishi v. L-3 Services, Inc., 657 F.3d
8201 (4th Cir. 2011), Al Shimari v. CACI International, Inc., 658
F.3d 413 (4th Cir. 2011), and Taylor v. Kellogg Brown & Root
Services, Inc., 658 F.3d 402. This Court ultimately dismissed
Al-Quraishi and Al Shimari after a rehearing en banc because the
cases were not subject to interlocutory appeal under the
collateral order doctrine. See Al Shimari v. CACI Int’l, Inc.,
679 F.3d 205 (4th Cir. 2012) (en banc). Taylor concerns how to
treat military contractors under the political question
doctrine.
Following the resolution of these appeals and before any
jurisdictional discovery took place, KBR filed a renewed motion
to dismiss for lack of subject matter jurisdiction. KBR
appended twenty-three new exhibits to the renewed motion to
dismiss, and the Servicemembers appended two new declarations
from military officials to their opposition to KBR’s motion. In
light of Taylor, briefs that the United States filed in Al
Shimari and Saleh v. Titan Corp., and the Supreme Court’s
decision in Filarsky v. Delia, 132 S. Ct. 1657 (2012), the
district court granted KBR’s motion to dismiss. In re KBR,
Inc., Burn Pit Litig. (Burn Pit II), 925 F. Supp. 2d 752, 772-73
(D. Md. 2013). The court held that the political question
doctrine, derivative sovereign immunity, and the combatant
activities exception each provided a basis on which to dismiss
the Servicemembers’ claims.
9
The Servicemembers now appeal, contending that the district
court erred in granting the motion to dismiss. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
On appeal from a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(1), “[w]e review the district court’s
factual findings with respect to jurisdiction for clear error
and the legal conclusion that flows therefrom de novo.” Velasco
v. Gov’t of Indon., 370 F.3d 392, 398 (4th Cir. 2004). “[W]hen
a defendant challenges subject matter jurisdiction via a Rule
12(b)(1) motion to dismiss, the district court may regard the
pleadings as mere evidence on the issue and may consider
evidence outside the pleadings without converting the proceeding
to one for summary judgment.” Id.; see also Williams v. United
States, 50 F.3d 299, 304 (4th Cir. 1995) (noting that “the court
may consider the evidence beyond the scope of the pleadings to
resolve factual disputes concerning jurisdiction”). However,
“when the jurisdictional facts are inextricably intertwined with
those central to the merits, the [district] court should resolve
the relevant factual disputes only after appropriate discovery.”
Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).
10
III.
A. Political Question Doctrine Background
We turn first to KBR’s argument that the political question
doctrine renders the Servicemembers’ claims nonjusticiable. A
claim presents a political question when the responsibility for
resolving it belongs to the legislative or executive branches
rather than to the judiciary. See Baker v. Carr, 369 U.S. 186,
210 (1962) (“The nonjusticiability of a political question is
primarily a function of the separation of powers.”). The
political question doctrine prevents the courts from encroaching
on issues that the Constitution assigns to these other branches
or that the judiciary is ill-equipped to decide. See id. at
217. However, in determining whether the questions that this
case presents belong to another branch of government, we remain
mindful of the fact that “[i]t is emphatically the province and
duty of the judicial department to say what the law is.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
“[M]ost military decisions lie solely within the purview of
the executive branch.” Taylor, 658 F.3d at 407 n.9. As this
Court explained in Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir.
2012), “the Constitution delegates authority over military
affairs to Congress and to the President as Commander in Chief.
It contemplates no comparable role for the judiciary. . . .
[J]udicial review of military decisions would stray from the
11
traditional subjects of judicial competence.” Id. at 548.
However, “acting under orders of the military does not, in and
of itself, insulate the claim from judicial review.” Taylor,
658 F.3d at 411. Therefore, although cases involving military
decision making often fall in the political question box, we
cannot categorize such a case as nonjusticiable without delving
into the circumstances at issue.
The Supreme Court announced a six-factor test for assessing
whether a claim poses a political question in Baker v. Carr.
Pursuant to Baker, cases involving political questions evince
(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”
the issue, (3) “the impossibility of deciding [the issue]
without an initial policy determination of a kind clearly for
nonjudicial discretion,” (4) “the impossibility of a court’s
undertaking independent resolution [of the issue] without
expressing lack of the respect due coordinate branches of
government,” (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. at 217.
This Court considered whether examining a government
contractor’s actions can invoke a political question in Taylor.
12
In doing so, the Court adapted Baker to the government
contractor context through a new two-factor test. Under the
Taylor test, we first consider “the extent to which [the
government contractor] was under the military’s control.” 658
F.3d at 411. Second, we evaluate “whether national defense
interests were closely intertwined with the military’s decisions
governing [the government contractor’s] conduct.” Id. Pursuant
to the second factor, the political question doctrine renders a
claim nonjusticiable 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.” Id. (quoting
Taylor v. Kellogg Brown & Root Servs., Inc., No. 2:09cv341, 2010
WL 1707530, at *5 (E.D. Va. Apr. 19, 2010)). In evaluating the
Taylor factors, we “look beyond the complaint, [and] consider []
how [the Servicemembers] might prove [their] claim[s] and how
KBR would defend.” Id. at 409 (first and second alterations in
original) (quoting Lane v. Halliburton, 529 F.3d 548, 565 (5th
Cir. 2008)) (internal quotation marks omitted).
In Taylor, this Court determined whether the political
question doctrine barred a Marine’s negligence suit against a
government contractor. The Marine—Peter Taylor—was electrocuted
and suffered severe injuries when the government contractor’s
employee turned on a generator at a military base in Iraq
13
despite Marine Corps’ instructions not to do so. Id. at 404.
When considering the first factor, the Court held that the
government contractor was not under the military’s control
because its contract specified that “the contractor shall have
exclusive supervisory authority and responsibility over
employees.” Id. at 411 (internal quotation marks omitted).
However, when considering the second Taylor factor, the Court
explained that assessing the government contractor’s
contributory negligence defense would require it to evaluate
Taylor’s conduct and certain military decisions, such as the
military’s choice to employ a generator. Id. at 411-12. The
Court therefore determined that “an analysis of [the
contractor’s] contributory negligence defense would ‘invariably
require the Court to decide whether . . . the Marines made a
reasonable decision.’” Id. at 411 (second alteration in
original) (quoting Taylor, 2010 WL 1707530, at *6).
Accordingly, based on the second factor alone, this Court opted
to affirm the district court’s decision to dismiss the case.
Id. at 412. The Court’s analysis suggests that, if a case
satisfies either factor, it is nonjusticiable under the
political question doctrine.
Although the Court evaluated Taylor’s claim under the new
two-factor test, it did not ignore the traditional Baker
analysis. In a footnote, the Court noted that considering
14
whether the Marines’ actions contributed to Taylor’s injuries
“would run afoul of the second and fourth Baker factors”:
Here, we have no discoverable and manageable standards
for evaluating how electric power is supplied to a
military base in a combat theatre or who should be
authorized to work on the generators supplying that
power. Furthermore, any such judicial assessment
thereof would show a lack of respect for the executive
branch.
Id. n.13. The Court added this analysis so it could compare the
factual scenario at issue in Taylor to the circumstances
underlying this Court’s earlier decision in Tiffany v. United
States, 931 F.2d 271 (4th Cir. 1991)—a case that utilized the
Baker factors. This comparison simply bolstered the decision
that the Court had already reached using the new two-factor
test; the Court did not rely on a Baker-style analysis to arrive
at its conclusion. We therefore proceed with our analysis in
this case using only the Taylor test.
B. “Military Control” Factor
The district court concluded that both Taylor factors
counseled in favor of finding that the political question
doctrine rendered the Servicemembers’ claims nonjusticiable.
With respect to the first Taylor factor, the district court
found that the military made the decision to use burn pits and
chose where to locate them. Burn Pit II, 925 F. Supp. 2d at
761-62 & n.14. The court based this determination on the
15
declarations of various military officers and civilians and a
letter from General David Petraeus, which states, “There is and
will continue to be a need for burn pits during contingency
operations.” Id. at 762 (internal quotation marks omitted).
The court also found that the military controlled water supply
operations in Iraq and Afghanistan, a determination it made
based on the declarations of two military officers and two Army
publications. Id. at 762-63. Finally, the court concluded
that, contrary to the contract at issue in Taylor, LOGCAP III
and certain task orders related to burn pits and water treatment
“demonstrate[d] pervasive and plenary military control” over the
functions at issue in this case. Id. at 764. The district
court therefore held that the first Taylor factor “weigh[ed]
heavily in favor of dismissing the[] cases.” Id.
The Servicemembers object to the district court’s
conclusion that the military controlled KBR and, therefore,
contend that this case does not satisfy the first Taylor factor.
With regard to the burn pit component of their claims, the
Servicemembers aver that the record contains evidence indicating
that the military decided to use a burn pit at only a single
military base: Camp Taji in Iraq. Accordingly, the
Servicemembers argue that any other surface burning occurred
without military authorization. The Servicemembers further
contend that the Overseas Environmental Baseline Guidance
16
Document supports their argument because it specifies that
“[o]pen burning will not be the regular method of solid waste
disposal.” Dep’t of Defense, DoD 4715.5-G, Overseas
Environmental Baseline Guidance Document ¶ C7.3.14 (March 2000).
According to a report that the Department of Defense
presented to Congress, open-air burn pits are an acceptable
method of waste disposal on military bases. Dep’t of Defense,
Report to Congress on the Use of Open-Air Burn Pits by the
United States Armed Forces 4 (Apr. 28, 2010). However, the
report makes clear that burn pits are not the preferred method
of waste disposal, and the military should utilize them only
after exhausting other options, such as landfills and
incinerators. Id. In any event, “the decision to use burn pits
in deployed operations is retained at operational command level,
based on local conditions and in accordance with higher level
guidance.” Id. at 4-5 (footnotes omitted). The report notes
that “[t]he operational commander shall develop and approve a
solid waste management plan for the contingency operation,” and
“[t]he use of open-air burn pits shall not be allowed unless
included within this plan.” Id. at 5 n.5 (internal quotation
marks omitted). An “operational commander” is the senior
commander of a Joint Task Force or deployed force. Id.
Various task orders associated with LOGCAP III mesh with
the report’s description of surface burning as a waste disposal
17
method that the military authorized but discouraged. Iraq Task
Orders 139 and 159 specifically mention “surface burning” as a
permitted method of waste disposal, although these task orders
allow KBR to engage in surface burning only “[u]pon formal
notification” and indicate that surface burning is not the
preferred method of waste disposal. Afghanistan Task Order 13
places certain limitations on “[t]rash burning,” and Afghanistan
Task Orders 14 and 98 specify that KBR “shall provide trash pick
up and disposal service,” including “the operation of a burn
pit.” Pursuant to Afghanistan Task Order 113, KBR “shall
operate and maintain the burn pit . . . until provision of a[n]
. . . incinerator.” Iraq Task Orders 116, 118, and 145 and
Afghanistan Task Order 97 direct KBR to perform general waste
management tasks but do not specifically mention surface burning
or burn pits.
Declarations from various military officials and civilians
indicate that the military decided what method of waste disposal
to use on bases in Iraq and Afghanistan. Major Tara Hall, who
served as the Army’s Chief of Preventive Medicine and Force
Health Protection Officer for the Multi-National Corps-Iraq,
stated that “the Army decided which method of waste disposal to
use at military bases in Iraq. KBR did not decide which methods
of waste disposal were appropriate in the contingency
environment of Iraq.” According to Gerald E. Vincent, a
18
civilian who served as Environmental Program Manager for the
Multi-National Corps-Iraq, “the U.S. military made the decisions
about which method of waste disposal to use at each base camp in
Iraq . . . . When appropriate, . . . KBR personnel would
provide input in the decision[-]making process leading to the
decisions about which method of waste disposal would be used.”
Dr. R. Craig Postlewaite, Acting Director of Force Health
Protection and Readiness Programs and Director of Force
Readiness and Health Assurance, explained that “the U.S.
military, as a matter of policy and doctrine, decides which
methods of waste disposal, e.g., burn pits or incinerators, to
use at military camps in such war theaters, including Iraq and
Afghanistan.” He went on to state that “the U.S. military
decides where to locate burn pits at such camps” and “[t]he U.S.
military also controls what items or substances may be disposed
of in burn pits at military camps in these theaters of war.” In
sum, this evidence indicates that the military allowed the use
of burn pits and decided whether, when, and how to utilize them.
Although some evidence demonstrates 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. A military guidance
document regarding LOGCAP, which the Servicemembers appended to
their memorandum in opposition to KBR’s first motion to dismiss,
19
explains that a statement of work “is a description of the work
that is to be performed. It details who, what, when and where
but not ‘how’.” U.S. Army, LOGCAP 101 Working with LOGCAP in
SWA (Draft) 13. The same document goes on to explain that the
military “do[esn’t] tell the LOGCAP Contractor[s] how to perform
the Mission; [it] just tell[s] them what the end result has to
be.” Id. at 14. The Servicemembers provided declarations that
support this account. Patrick Perkinson, a former Hazardous
Materials and Safety Supervisor for KBR, explained in his
declaration that “KBR, not the military, was responsible for
choosing the location of the burn pits” at Camp Diamondback in
Iraq. In his declaration, KBR’s former Corporate Environmental
Manager, Lee Lasiter, stated that KBR “was exclusively
responsible for operating burn pits in Iraq and Afghanistan
[and] for management of wastes generated in the performance of
the LOGCAP contract.” Declarants Rick Lambeth, Sylvester L.
Aleong, David Jobes, Claude Jordy, and Ronald Smith each made
similar statements regarding KBR’s operational control over the
burn pits at various military bases.
The evidence that KBR submitted also speaks to the
military’s control over water treatment at bases in Iraq and
Afghanistan. Pursuant to Iraq Task Orders 59, 89, 139, and 159
and Afghanistan Task Orders 116 and 118, KBR “install[ed],
operate[d] and maintain[ed] potable and non-potable water
20
systems.” Afghanistan Task Orders 13 and 97 direct KBR to
“produce, distribute, and store potable/non-potable water,” and
Afghanistan Task Orders 14 and 98 require KBR to “produce,
distribute, and dispose of potable and non-potable water.”
According to Major Sueann O. Ramsey, who served as the Chief of
Preventive Medicine for the Multi-National Corps-Iraq,
The military had oversight over the provision of water
services at base camps within Iraq. Technical medical
bulletins provided the basic standards and testing
methodologies that governed the provision of potable
and non-potable water services. [Multi-National
Corps-Iraq] policies provided detailed specifications
for military and contractor personnel who were
authorized to provide water services in Iraq.
Colonel Steven W. Swann, who served as Commander of the 30th
Medical Brigade and Corps Surgeon for the Multi-National Corps-
Iraq, similarly explained that, “[i]n Iraq, the Army had
oversight regarding the testing, production, and distribution of
potable and nonpotable water at base camps. Preventive Medicine
detachments regularly tested the water to ensure that the water
was safe for soldiers and other personnel at the base camps.”
Accordingly, this evidence suggests that, although the military
delegated many water treatment functions to KBR, the military
oversaw water treatment in Iraq and Afghanistan to some degree.
To gauge whether the military’s control over KBR rose to
the level necessary to implicate the political question doctrine
in this case, we—like the Taylor Court—look to the Eleventh
21
Circuit’s decision in Carmichael v. Kellogg, Brown & Root
Services, Inc. In Carmichael, the Eleventh Circuit considered
whether the political question doctrine barred a negligence suit
against a government contractor and its employee. 572 F.3d at
1275. The employee was driving a truck in a military convoy
transporting fuel in Iraq. Id. at 1278. When the truck rolled
over, the plaintiff was seriously injured, leaving him in a
permanent vegetative state. Id. The Eleventh Circuit agreed
with the district court’s conclusion that the plaintiff’s suit
would “require reexamination of many sensitive judgments and
decisions entrusted to the military in a time of war.” Id. at
1281. Specifically, pursuant to the Army Field Manual and
various task orders, the military decided the date and time of
the convoy’s departure, the speed of travel, the route, how much
fuel to transport, the number of trucks in the convoy, the
distance between vehicles, and what security measures were
necessary. Id. The court characterized this level of military
involvement as “plenary control” warranting application of the
political question doctrine. Id. at 1276; see id. at 1281-83.
At this point in the litigation, it does 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. In fact, based on the current record, the
case at hand more closely resembles the situation in Harris v.
22
Kellogg Brown & Root Services, Inc. In Harris, which we discuss
in more detail below, the Third Circuit applied a test very
similar to the Taylor test to determine whether the political
question doctrine barred a plaintiff’s claims against a military
contractor. The court 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.” 724
F.3d at 467. The court concluded that the military did not
exercise control over the contractor because the military did
not provide detailed instructions regarding how to complete work
orders or get involved in the contractor’s assignments. Id.
Similarly, in this case, the military guidance document
that the Servicemembers provided suggests that the military told
KBR what goals to achieve but not how to achieve them. The task
orders demonstrate that the military delegated trash disposal
and water treatment functions to KBR, but they do not establish
whether the military directed these tasks. Only one declarant
indicated that the military decided where to locate burn pits
and determined what substances to dispose of via surface
burning. Several other declarations—including some that KBR
provided—demonstrate that the military chose which method of
waste disposal to use, but they do not indicate whether the
23
military told KBR how to implement that method. Furthermore,
although two declarants stated that the military controlled
water testing in Iraq, neither declarant spoke regarding water
treatment in Afghanistan, which is also at issue in this
litigation. In short, 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. We therefore cannot determine whether the military
control factor renders this case nonjusticiable at this time.
C. “National Defense Interests” Factor
We now turn to the second Taylor factor: “whether national
defense interests were closely intertwined with the military’s
decisions governing KBR’s conduct.” 658 F.3d at 411. As part
of this analysis, we consider whether the Servicemembers’ claims
or KBR’s defenses require us to question the military’s
judgments. See id. When considering the second Taylor factor,
the district court noted that KBR “assert[ed] that [its] conduct
was reasonable because the United States Military determined the
method of waste disposal, determined burn pit logistics, and
determined water control operations.” Burn Pit II, 925 F. Supp
2d at 765. The district court also explained that KBR planned
to raise a causation defense alleging that the military—not KBR—
24
caused the Servicemembers’ injuries. 1 Id. According to KBR,
this defense would “require the [c]ourt to scrutinize the
military’s environmental testing efforts and its contemporaneous
conclusions that burn pits posed no long-term health problems.”
Id. Because these considerations suggested that “[t]he actions
complained of [were] not ones taken by [KBR] alone” and “KBR’s
defense[] . . . would necessarily require review of the
reasonableness of military decisions,” the district court
concluded that the second Taylor factor indicated that this case
was nonjusticiable. Id. at 765-66. The court therefore held
that the political question doctrine prevented it from reaching
the merits of the case. Id.
Regarding the second Taylor factor, the case at hand is
somewhat similar to the circumstances at issue in Taylor itself.
As it did in Taylor, KBR counters the Servicemembers’ claims by
arguing that the military’s decisions—not KBR’s actions—led to
the Servicemembers’ injuries. See Taylor, 658 F.3d at 405, 407.
As KBR explained in its memorandum in support of its renewed
motion to dismiss in this case, “[t]he substantial record before
this [c]ourt is replete with evidence, including military
1
The district court also stated that KBR planned to raise a
contributory negligence defense. See Burn Pit II, 925 F. Supp.
2d at 765. However, as we explain below, it is more appropriate
to characterize KBR’s argument as a causation defense.
25
declarations and government documents, that supports KBR’s
liability defense that [the Servicemembers’] alleged injuries
were caused by military decisions and conduct, not by KBR.”
However, unlike the contributory negligence defense at issue in
Taylor, analyzing KBR’s defense in this case would not
“invariably require the Court to decide whether . . . the
[military] made a reasonable decision.” Id. at 411 (first
alteration in original) (emphasis added) (internal quotation
marks omitted). Rather than characterizing its argument as a
contributory negligence defense, KBR’s memorandum in support of
its renewed motion to dismiss labels its theory a “proximate
causation” defense. 2 This causation defense simply requires the
district court 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. KBR’s defense
therefore does not necessarily require the district court to
evaluate the propriety of these judgments. 3
2
Even if KBR were to re-plead contributory negligence,
thereby possibly requiring the district court to question the
military’s decision making when it evaluates the Servicemembers’
negligence claims, this defense would not affect the
Servicemembers’ breach of contract claims. The political
question doctrine would therefore not render the entire suit
nonjusticiable.
3
In its brief, KBR argues that the Servicemembers
indirectly question military judgments by contending that KBR
acted negligently because, according to KBR, the military
26
This case more closely resembles the Third Circuit’s recent
decision in Harris. In that case, the court considered whether
the political question doctrine barred a suit against a military
contractor accused of negligently performing maintenance duties
and causing a soldier’s death. 724 F.3d at 463. The contractor
raised a causation defense similar to KBR’s defense in this
case, contending that the military proximately caused the
soldier’s death through its maintenance actions. Id. at 474.
The Third Circuit concluded that the defense required the
evaluation of strategic military decisions only if the governing
law used a proportional-liability system that assigned liability
based on fault. The court therefore held the case was
justiciable as long as the plaintiffs did not seek any relief
that implicated the proportional-liability system. Id. at 475.
For example, under a pure joint-and-several liability system,
the plaintiffs could obtain all of their relief from the
actually made the decisions at issue in this case. However, at
this point in the litigation, it is unclear whether KBR or the
military made the allegedly negligent decisions. Furthermore,
as we explain below, because KBR raises a causation defense
rather than a contributory negligence defense, the military’s
negligence becomes an issue only under a proportional-liability
system that assigns liability based on fault.
27
military contractor, preventing the need to evaluate the
military’s decisions. 4 Id. at 474.
We find the Harris court’s reasoning persuasive and
applicable here. 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. The second
Taylor factor therefore does not necessarily counsel in favor of
nonjusticiability in this case. Because neither the first nor
the second Taylor factor currently indicates that the
Servicemembers’ claims are nonjusticiable, we hold that the
political question doctrine does not render this case
nonjusticiable at this time and vacate the district court’s
decision to dismiss the Servicemembers’ claims on that basis.
IV.
We turn next to the Servicemembers’ contention that the
district court erred in finding that KBR was entitled to
4
This case involves complaints filed in forty-two different
states, so it is unclear which state’s (or states’) law will
ultimately apply. Many states have limited joint-and-several
liability in tort actions. See Nancy C. Marcus, Phantom Parties
and Other Practical Problems with the Attempted Abolition of
Joint and Several Liability, 60 Ark. L. Rev. 437, 440 & n.14
(2007).
28
immunity under the FTCA’s discretionary function exception. 5 As
a general matter, the United States is immune from suit unless
it waives that immunity. See United States v. Mitchell, 445
U.S. 535, 538 (1980). The United States waived its immunity
from tort suits under certain circumstances in the FTCA, see 28
U.S.C. § 2674, but that waiver is subject to certain exceptions,
see id. § 2680. One of these exceptions is the “discretionary
function” exception, which renders the government immune from
“[a]ny claim . . . based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty
on the part of a federal agency or an employee of the
5
The district court did not explicitly rely on the
discretionary function exeception in concluding that KBR was
immune from suit. Instead, the district court quoted a lengthy
passage from its Burn Pit I decision, in which “[t]his ground
for dismissal [derivative sovereign immunity] was described.”
925 F. Supp. 2d at 766. The passage discusses the discretionary
function exception. Id. at 766-67. In its appellate brief, KBR
does not rely on only the discretionary function exception to
support its immunity argument. Instead, it contends that
“[t]here is no question that the U.S. military would be immune
from suits arising from the performance of these services under
a variety of exceptions to the FTCA, e.g., the discretionary
function, combatant activities, and foreign country exceptions.”
Although we focus on the discretionary function exception below,
the conclusion we reach regarding Yearsley v. W.A. Ross
Construction Co., 309 U.S. 18 (1940), applies regardless of
which FTCA provision underpins KBR’s immunity argument.
Specifically, as we discuss in detail below, Yearsley allows
government contractors to enjoy immunity from suit only if they
adhere to the terms of their contracts with the government, and
the record is not developed enough at this stage in the
litigation to allow us—or the district court—to determine
whether KBR satisfied this requirement.
29
Government, whether or not the discretion involved be abused.”
Id. § 2680(a). A discretionary function is one that “involves
an element of judgment or choice.” Berkovitz ex rel. Berkovitz
v. United States, 486 U.S. 531, 536 (1988).
The FTCA explicitly excludes independent contractors from
its scope. See 28 U.S.C. § 2671. Specifically, the statute
does not include government contractors in its definition of
“federal agency” or “employee of the government.” Id. (“[T]he
term ‘Federal agency’ . . . does not include any contractor with
the United States. . . . ‘Employee of the government’ includes
(1) officers or employees of any federal agency, members of the
military or naval forces of the United States, members of the
National Guard . . . , and persons acting on behalf of a federal
agency in an official capacity . . . and (2) any officer or
employee of a Federal public defender organization . . . .”).
The discretionary function exception includes both of these
terms.
Despite this language, KBR contends that it is entitled to
derivative sovereign immunity, which “protects agents of the
sovereign from liability for carrying out the sovereign’s will.” 6
6
KBR argues that the FTCA’s discretionary function
exception entitles it to immunity, not that the provision
preempts the state tort laws underlying the Servicemembers’
claims. In Boyle v. United Technologies Corp., 487 U.S. 500(1988), which we discuss in more detail in Part V of this
30
Al-Quraishi v. Nakhla, 728 F. Supp. 2d 702, 736 (D. Md. 2010),
rev’d on other grounds, Al-Quraishi v. L-3 Servs., Inc., 657
F.3d 201 (4th Cir. 2011), appeal dismissed, Al Shimari, 679 F.3d
205. The concept of derivative sovereign immunity stems from
the Supreme Court’s decision in Yearsley v. W.A. Ross
Construction Co., 309 U.S. 18 (1940). In that case, the Supreme
Court considered whether a private contractor could be held
liable for damage resulting from a construction project that
Congress authorized. Id. at 19-20. When the project caused
erosion that damaged nearby property, the injured landowners
sued the contractors, claiming that they had effected a taking
of their property without just compensation. Id. The Supreme
Court explained that
opinion, the Supreme Court considered whether a military
contractor was liable under state tort law for an injury that
resulted from a design defect. Id. at 502-03. The Court held
that the case involved “uniquely federal interests.” Id. at
505-06. The Court then explained that the FTCA’s discretionary
function exception “demonstrate[d] the potential for, and
suggest[ed] the outlines of, ‘significant conflict’ between the
federal interests and state law.” Id. at 511. In light of
these determinations, the Court crafted a test to ensure the
preemption of state laws that clashed with the federal interest
at play. See id. at 512. Although Boyle, like the case at
hand, drew on the discretionary function exception, the Supreme
Court specified that Boyle does not govern the question of
whether immunity extends to “nongovernment employees.” See id.
at 505 n.1 (internal quotation marks omitted). KBR asks for
derivative sovereign immunity rather than preemption under the
discretionary function exception in this case, thus rendering
Boyle inapposite.
31
it is clear that if this authority to carry out the
project was validly conferred, that is, if what was
done was within the constitutional power of Congress,
there is no liability on the part of the contractor
for executing its will. Where an agent or officer of
the Government purporting to act on its behalf has
been held to be liable for his conduct causing injury
to another, the ground of liability has been found to
be either that he exceeded his authority or that it
was not validly conferred.
Id. at 20-21 (citations omitted). In other words, under
Yearsley, a government contractor is not subject to suit if (1)
the government authorized the contractor’s actions and (2) the
government “validly conferred” that authorization, meaning it
acted within its constitutional power. Id. Applying this test,
the Supreme Court determined that the contractors were not
liable for damaging the plaintiffs’ land because they acted
pursuant to Congress’s valid authorization. Id. at 21-22.
Yearsley does not explicitly mention sovereign immunity.
In fact, the Court based its holding on the fact that the
government had “impliedly promised to pay [just] compensation
[for any taking] and ha[d] afforded a remedy for its recovery.”
Id. at 21. Yearsley’s ultimate holding is therefore quite
narrow:
So, in the case of a taking by the Government of
private property for public use such as petitioners
allege here, it cannot be doubted that the remedy to
obtain compensation from the Government is as
comprehensive as the requirement of the Constitution,
and hence it excludes liability of the Government’s
representatives lawfully acting on its behalf in
relation to the taking.
32
Id. at 22. Despite this narrow holding, this Court has
recognized, based on Yearsley, “that contractors and common law
agents acting within the scope of their employment for the
United States have derivative sovereign immunity.” Butters v.
Vance Int’l, Inc., 225 F.3d 462, 466 (4th Cir. 2000). Our
sister circuits have reached similar conclusions. See Ackerson
v. Bean Dredging LLC, 589 F.3d 196, 206-07 (5th Cir. 2009)
(determining that the district court correctly dismissed claims
against a contractor when the plaintiff did not allege that the
contractor exceeded its authority or that Congress did not
validly confer such authority); McMahon v. Presidential Airways,
Inc., 502 F.3d 1331, 1343 (11th Cir. 2007) (acknowledging the
existence of derivative sovereign immunity and its origin in
Yearsley); Myers v. United States, 323 F.2d 580, 583 (9th Cir.
1963) (applying Yearsley and concluding that contractor was not
liable for work it performed pursuant to a federal contract).
After a well-reasoned discussion in Burn Pit I, the
district court concluded that KBR was not entitled to derivative
sovereign immunity under Yearsley at that time because immunity
depended on whether KBR acted within the scope of its authority,
which the court could not determine at that point in the
litigation. See 736 F. Supp. 2d at 968. The district court
reversed course in Burn Pit II, finding that the Supreme Court’s
33
2012 decision in Filarsky v. Delia compelled extending
derivative sovereign immunity to KBR. See 925 F. Supp. 2d at
767. Specifically, the district court noted that Filarsky
cautioned against leaving individuals who work alongside
government employees “holding the bag—facing full liability for
actions taken in conjunction with government employees who enjoy
immunity for the same activity.” Filarsky, 132 S. Ct. at 1666;
Burn Pit II, 925 F. Supp. 2d at 767. Therefore, without
applying the law to the facts at hand, the district court
concluded that KBR was immune from suit because it was a
military contractor “performing services for the government in
war zones.” Burn Pit II, 925 F. Supp. 2d at 767.
In Filarsky, the Supreme Court considered whether an
attorney was entitled to qualified immunity in a 42 U.S.C.
§ 1983 action when he assisted government employees in
investigating whether a firefighter was feigning illness to
avoid work. 132 S. Ct. at 1660-61. The Court determined that
the common law did not distinguish between government employees
and private actors serving the government in 1871, when Congress
enacted § 1983. See id. at 1661-65. Because Congress had not
expressed “clear legislative intent” contrary to the common law
treatment, the Court determined that qualified immunity was not
linked to whether an individual was a full-time government
employee. Id. at 1665 (internal quotation marks omitted).
34
Instead, the relevant inquiry is whether a government employee
performing the same action would be entitled to qualified
immunity. Id. The Court then turned to the policy
justifications underlying qualified immunity to see if they also
counseled in favor of applying it to private actors assisting
government employees. Those interests are “avoid[ing]
‘unwarranted timidity’ in performance of public duties, ensuring
that talented candidates are not deterred from public service,
and preventing harmful distractions from carrying out the work
of government that can often accompany damages suits.” Id. The
Court determined that all of these interests supported extending
qualified immunity to the attorney. Id. at 1665-66.
Contrary to the district court’s conclusion, there is no
indication that the Supreme Court intended Filarsky to overrule
Yearsley and its progeny. See Filarsky, 132 S. Ct. at 1669(Sotomayor, J., concurring) (“[I]t does not follow that every
private individual who works for the government in some capacity
necessarily may claim qualified immunity . . . . Such
individuals must satisfy our usual test for conferring
immunity.”). The Supreme Court framed the question presented in
Filarsky as “whether an individual hired by the government to do
its work is prohibited from seeking such immunity [under
§ 1983], solely because he works for the government on something
other than a permanent or full-time basis.” Id. at 1660. After
35
tracing the history of common law immunity up to the point
Congress enacted § 1983, the Court concluded “immunity under
§ 1983 should not vary depending on whether an individual
working for the government does so as a full-time employee, or
on some other basis.” Id. at 1662-65 (emphasis added). The
opinion never mentions Yearsley, sovereign immunity, or the FTCA
and never purports to extend beyond § 1983 qualified immunity.
We therefore believe that the district court erred in concluding
that Filarsky compelled altering the conclusion that it reached
in Burn Pit I.
We interpret Filarsky as reaffirming the principles
undergirding the Yearsley rule, albeit in the context of § 1983
qualified immunity rather than derivative sovereign immunity.
Like Filarsky, Yearsley recognizes that private employees can
perform the same functions as government employees and concludes
that they should receive immunity from suit when they perform
these functions. Furthermore, Yearsley furthers the same policy
goals that the Supreme Court emphasized in Filarsky. By
rendering government contractors immune from suit when they act
within the scope of their validly conferred authority, the
Yearsley rule combats the “unwarranted timidity” that can arise
if employees fear that their actions will result in lawsuits.
Filarsky, 132 S. Ct. at 1665. Similarly, affording immunity to
government contractors “ensur[es] that talented candidates are
36
not deterred from public service” by minimizing the likelihood
that their government work will expose their employer to
litigation. Id. Finally, by extending sovereign immunity to
government contractors, the Yearsley rule “prevent[s] the
harmful distractions from carrying out the work of government
that can often accompany damages suits.” Id.We now turn to applying the Yearsley rule, which asks us to
consider whether the government authorized KBR’s actions in this
case. 7 As this Court explained in Butters v. Vance
International, Inc., that inquiry involves determining whether
KBR “exceeded [its] authority under [its] valid contract,” which
the Court also characterized as exceeding “the scope of [its]
employment.” 225 F.3d at 466. The parties debate whether we
should construe the scope of KBR’s authority narrowly or
broadly. According to the Servicemembers, KBR exceeded its
authority in this case because it violated the specific terms of
LOGCAP III and other “government directives.” By contrast, KBR
takes a broader view, contending that it acted within the scope
7
The parties do not dispute that the military had the power
to delegate waste management and water treatment functions to a
government contractor. We therefore need not consider the
component of the Yearsley analysis that asks whether “the
project was validly conferred, that is, if what was done was
within the constitutional power of Congress.” Yearsley, 309
U.S. at 20-21.
37
of its authority by performing general waste management and
water treatment functions. 8
Yearsley supports the Servicemembers’ view. In Yearsley,
the Supreme Court emphasized that “[t]he Court of Appeals . . .
found it to be undisputed that the work which the contractor had
done . . . was all authorized and directed by the Government of
the United States.” 309 U.S. at 20 (emphasis added) (internal
quotation marks omitted). This language suggests that the
contractor must adhere to the government’s instructions to enjoy
derivative sovereign immunity; staying within the thematic
umbrella of the work that the government authorized is not
8
KBR suggests that a government contractor is entitled to
derivative sovereign immunity if it qualifies as a common law
agent of the government. Specifically, KBR cites an unpublished
decision from this Court, which explains that, under Virginia
law, “[w]hether an agent acted within the scope of his authority
turns not on whether the particular act at issue—often a tort
committed by the agent—is ‘within the scope of the agent’s
authority, but [on] whether the service itself in which the
tortious act was done was . . . within the scope of such
authority.’” First Tenn. Bank Nat’l Ass’n v. St. Paul Fire &
Marine Ins. Co., 501 F. App’x 255, 260 (4th Cir. 2012) (second
and third alterations in original) (quoting Broaddus v. Standard
Drug Co., 179 S.E.2d 497, 503 (Va. 1971)). However, common law
agent status is not sufficient to establish derivative sovereign
immunity. As the Eleventh Circuit reasoned in McMahon v.
Presidential Airways, Inc., if all common law agents of the
government enjoyed derivative sovereign immunity due to their
agency status, the immunity of the government and its officers
would be coextensive, which is not necessarily the case. See
502 F.3d at 1343-45 & n.15. Furthermore, as we explain below,
Yearsley itself supports our conclusion that simply being the
government’s common law agent does not entitle a contractor to
derivative sovereign immunity.
38
enough to render the contractor’s activities “the act[s] of the
government.” See id. at 22 (internal quotation marks omitted).
The Ninth Circuit similarly interpreted Yearsley in Myers v.
United States. In that case, the court considered whether
landowners could recover from a private company that damaged
their property while constructing a road pursuant to a
government contract. See 323 F.2d at 580-82. The court held
that, “[t]o the extent that the work performed by [the
contractor] was done under its contract with the Bureau of
Public Lands, and in conformity with the terms of said contract,
no liability can be imposed upon it for any damages claimed to
have been suffered by the [landowners].” Id. at 583. The court
went on to explain that, “[i]f [the landowners] suffered any
damage from any act of [the contractor] over and beyond acts
required to be performed by it under the contract, or acts not
in conformity with the terms of the contract,” the contractor
was not liable because the landowners consented to its actions.
Id. In other words, when the contractor exceeded its authority
under the contract, Yearsley did not provide the basis for
escaping liability; the landowners’ acquiescence did.
Accordingly, as Yearsley and Myers show, KBR is entitled to
derivative sovereign immunity only if it adhered to the terms of
its contract with the government.
39
At this point in the litigation, the record does not
contain enough evidence to determine whether KBR acted in
conformity with LOGCAP III, its appended task orders, and any
laws and regulations that the contract incorporates. We also
lack evidence regarding whether the military permitted or
required KBR to deviate from the contract’s terms under certain
circumstances. Accordingly, we hold that the district court
erred in finding that KBR was entitled to derivative sovereign
immunity at this time and vacate the court’s decision to dismiss
the Servicemembers’ claims on that ground.
We also note that the district court did not address
whether KBR’s waste management and water treatment activities
constituted “discretionary functions” under the FTCA. However,
as we explain above, a discretionary function “involves an
element of judgment or choice.” Berkovitz, 486 U.S. at 536. If
the military dictated exactly how KBR should undertake its waste
management and water treatment tasks, those functions were not
discretionary because they did not involve an element of
judgment or choice. By contrast, if KBR enjoyed some discretion
in how to perform its contractually authorized responsibilities,
the discretionary function exception would apply, and KBR could
be liable. The district court should conduct this inquiry
before determining whether KBR is entitled to derivative
sovereign immunity under the discretionary function exception.
40
V.
Finally, the Servicemembers contend that the district court
erred in finding that the FTCA’s combatant activities exception
preempted the state tort 9 laws undergirding their claims.
Pursuant to the combatant activities exception, the United
States is 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). The statute does not
define the terms “arising out of” and “combatant activities.”
Relying on the Supreme Court’s decision in Boyle v. United
Technologies Corp., multiple circuit courts have held that the
federal interests inherent in the combatant activities exception
conflict with, and consequently can preempt, tort suits against
government contractors when those suits arise out of what those
courts viewed as combatant activities. See Harris, 724 F.3d
9We note that the Servicemembers bring breach of contract
claims in addition to their tort claims. In general, “[t]he
FTCA does not apply to common law contract claims.” Tritz v.
U.S. Postal Serv., 721 F.3d 1133, 1141 (9th Cir. 2013).
However, it may apply when a plaintiff brings a contract claim
seeking a tort remedy rather than a contract remedy such as
rescission. See id. Because the district court did not discuss
how the FTCA affects the Servicemembers’ breach of contract
claims, we decline to address this issue to allow the district
court to do so in the first instance on remand. See Q Int’l
Courier, Inc. v. Smoak, 441 F.3d 214, 220 n.3 (4th Cir. 2006)
(“Although we are not precluded from addressing [questions the
district court did not reach], we deem it more appropriate to
allow the district court to consider them, if necessary, in the
first instance on remand.”).
41
458; Saleh, 580 F.3d 1; Koohi v. United States, 976 F.2d 1328,
1336 (9th Cir. 1992). The district court initially found that
the combatant activities exception did not preempt state law
because the record was not developed enough to assess whether
preemption was appropriate. See Burn Pit I, 736 F. Supp. 2d at
976-78. However, the district court once again reversed course
in Burn Pit II, holding that preemption was appropriate under a
test that the United States recommended in amicus briefs that it
filed in this Court’s rehearing en banc of Al Shimari and in
support of denying the petition for writ of certiorari in Saleh.
See Burn Pit II, 925 F. Supp. 2d at 769-72.
Before we can reach the question of whether the combatant
activities exception preempts state tort law due to the United
States’ proposed test, we must first decide whether to apply the
United States’ test at all—an analytical step that the district
court skipped. The Supreme Court’s Boyle decision governs this
inquiry. Boyle arose when a Marine helicopter co-pilot died
after his helicopter crashed into the ocean during a training
exercise. 487 U.S. at 502. Although the co-pilot survived the
crash, he could not open the helicopter’s escape hatch, causing
him to drown. Id. The co-pilot’s father sought to hold the
military contractor that built the helicopter liable under state
tort law, contending that it defectively repaired part of the
42
helicopter’s flight control system and defectively designed the
escape hatch. Id. at 502-03. The Court explained,
In most fields of activity, to be sure, this Court has
refused to find federal pre-emption of state law in
the absence of either a clear statutory prescription
or a direct conflict between federal and state law.
But we have held that a few areas, involving “uniquely
federal interests,” are so committed by the
Constitution and laws of the United States to federal
control that state law is pre-empted and replaced,
where necessary, by federal law of a content
prescribed (absent explicit statutory directive) by
the courts-so-called “federal common law.”
Id. at 504 (citations omitted). 10 The Court then analyzed
whether the situation at hand in that case invoked “uniquely
federal interests” in a way that warranted preemption.
The Boyle Court employed a three-step process to determine
whether federal law preempted state law. First, it identified
the “uniquely federal interests” at issue in that case. See id.
at 504-07. Second, it determined whether there was a
“significant conflict” between those interests and state law.
Id. at 507-12. The Court identified the FTCA’s discretionary
function exception as “a statutory provision that demonstrates
the potential for, and suggests the outlines of, ‘significant
conflict’ between federal interests and state law.” Id. at 511.
The Court then explained that “‘second-guessing’ [the
10
This excerpt from Boyle makes clear that Congress need
not act affirmatively to cause the preemption of state law. The
Servicemembers’ arguments to this effect therefore lack merit.
43
government’s selection of a helicopter design] through state
tort suits against contractors would produce the same effect
sought to be avoided by the FTCA exemption” because government
contractors would raise their prices to compensate for possible
lawsuits, rendering the government financially liable. Id. at
511-12 (citation omitted). Third, the Court formulated a test
that ensured preemption of state laws that clashed with the
federal interests at play. See id. at 512-13.
A.
We now turn to the first step of the Boyle analysis. The
D.C. Circuit, Ninth Circuit, and Third Circuit have each
articulated a different “uniquely federal interest” underlying
cases in which a litigant attempts to hold a government actor
responsible for its combatant activities—in other words, the
federal interest buttressing the combatant activities exception.
In Saleh, the D.C. Circuit began its inquiry by noting that,
although “[t]he legislative history of the combatant activities
exception is ‘singularly barren,’ . . . it is plain enough that
Congress sought to exempt combatant activities because such
activities ‘by their very nature should be free from the
hindrance of a possible damage suit.’” 580 F.3d at 7 (quoting
Johnson v. United States, 170 F.2d 767, 769 (9th Cir. 1948)).
The court went on to explain that the “traditional rationales
44
for tort law—deterrence of risk-taking behavior, compensation of
victims, and punishment of tortfeasors—are singularly out of
place in combat situations, where risk-taking is the rule.” Id.In light of these considerations, the D.C. Circuit determined
that “the policy embodied by the combatant activities exception
is simply the elimination of tort from the battlefield, both to
preempt state or foreign regulation of federal wartime conduct
and to free military commanders from the doubts and uncertainty
inherent in potential subjection to civil suit.” Id. Based on
similar considerations, the Ninth Circuit articulated the
interest underlying the combatant activities exception as
“recogniz[ing] that during wartime encounters no duty of
reasonable care is owed to those against whom force is directed
as a result of authorized military action.” Koohi, 976 F.2d at
1337.
The Third Circuit rejected both of these approaches in
Harris. The court noted that the FTCA limits the combatant
activities exception to “claim[s] arising out of . . . combatant
activities,” 28 U.S.C. § 2680(j) (emphasis added), and pointed
out that, in other areas of the law, “arising out of” “denote[s]
any causal connection.” 724 F.3d at 479 (quoting Saleh, 580
F.3d at 6) (internal quotation marks omitted). In light of this
“arising out of” language, the court concluded that the Ninth
Circuit’s formulation of the interest was too narrow because it
45
rested on the premise that “no duty of reasonable care is owed
to those against whom force is directed,” Koohi, 976 F.2d at
1337 (emphasis added), which omits individuals who suffer harms
that flow tangentially from wartime force. See Harris, 724 F.3d
at 480. The court cited Saleh favorably, see id., but
ultimately determined that the D.C. Circuit’s formulation of the
interest underlying the combatant activities exception was too
broad, id. at 480-81. Specifically, the court explained that
the FTCA “does not provide immunity to nongovernmental actors.
So to say that Congress intended to eliminate all tort law is
too much.” Id. at 480. The Third Circuit therefore announced a
test that falls between these two extremes: “The purpose
underlying § 2680(j) . . . is to foreclose state regulation of
the military’s battlefield conduct and decisions.” Id.
We find the Third Circuit’s analysis persuasive and adopt
its formulation of the interest at play here. In Boyle, the
Supreme Court reasoned that no “uniquely federal interest”
warrants preemption when the federal government has little or no
control over a contractor’s conduct. See 487 U.S. at 509-10(explaining that the government would have no interest in the
design of a helicopter door if it ordered stock helicopters that
just happened to have a certain door design). Due to Boyle and
the FTCA’s omission of government contractors, we agree that the
D.C. Circuit’s test is too broad because it does not limit the
46
interest of “eliminat[ing] . . . tort from the battlefield” to
actors under military control. See Saleh, 580 F.3d at 7. We
also agree with the Third Circuit’s conclusion that the Ninth
Circuit’s test is too narrow because of the combatant activities
exception’s broad “arising out of” language. If the interest at
play were “recogniz[ing] that during wartime encounters no duty
of reasonable care is owed to those against whom force is
directed,” Koohi, 976 F.2d at 1337, the combatant activities
exception presumably would contain language limiting its scope
to claims stemming directly from the use of force.
B.
Now that we have identified the federal interest at play in
this case, we move on to the second step of the Boyle analysis:
determining whether there is a significant conflict between this
federal interest and the operation of the state tort laws
underlying the Servicemembers’ claims. In Boyle, this conflict
was discrete because it was impossible to construct the
helicopter according to the government’s design and satisfy the
state-imposed duty of care. 487 U.S. at 509. However, in the
combatant activities exception realm, the conflict between
47
federal and state interests is much broader. 11 As the D.C.
Circuit explained in Saleh, “the relevant question is not so
much whether the substance of the federal duty is inconsistent
with a hypothetical duty imposed by the state.” 580 F.3d at 7.
Instead, 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.” Id. (quoting Boyle, 487
U.S. at 500).
11
Although the conflict between federal interests and state
tort law is broad in the combatant activities exception context,
we can also identify several specific conflicts. Notably, as
the Supreme Court recognized in Boyle, imposing tort liability
on contractors that carry out the government’s orders will
result in the contractor charging higher prices, a cost that the
taxpayers will ultimately bear. 487 U.S. at 511-12.
Furthermore, haling a government contractor into a court
proceeding that questions the military’s decision making will
distract government personnel from their tasks and allow
“judicial probing of the government’s wartime policies.” Saleh,
580 F.3d at 8. Finally, “given the numerous criminal and
contractual enforcement options available to the government in
responding to alleged contractor misconduct[,] . . . allowance
of these claims will potentially interfere with the federal
government’s authority to punish and deter misconduct by its own
contractors.” Id.48
C.
Finally, we turn to Boyle’s third step: formulating a test
that ensures preemption when state tort laws conflict with the
interest underlying the combatant activities exception. See
Boyle, 487 U.S. at 512-13. KBR argues in favor of both the test
the D.C. Circuit announced in Saleh and the test the United
States advocated in amicus briefs that it filed in connection
with Al Shimari. and the petition for writ of certiorari in
Saleh. In Saleh, the D.C. Circuit articulated the following
test: “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.”
580 F.3d at 9. The court reasoned that the military need not
maintain “exclusive operational control” over the contractor for
the government to have an interest in immunizing a military
operation from suit. Id. at 8-9. It therefore crafted a test
that allowed the contractor to exert “some limited influence
over an operation,” as long as the military “retain[ed] command
authority.” Id.Alternatively, the United States recommends preemption when
(1) “a similar claim against the United States would be within
the combatant activities exception of the FTCA” and (2) “the
contractor was acting within the scope of its contractual
49
relationship with the federal government at the time of the
incident out of which the claim arose.” Brief of United States
as Amicus Curiae at 17-18, Al Shimari v. CACI Int’l, Inc., 679
F.3d 205 (4th Cir. 2012) (Nos. 09-1335, 10-1891, 10-1921). In
the amicus brief that it filed in Saleh, the United States
identified three key flaws in the Saleh test. First, it
explained that, “[u]nder domestic and international law,
civilian contractors engaged in authorized activity are not
‘combatants’; they are ‘civilians accompanying the force’ and,
as such, cannot lawfully engage in ‘combat functions’ or ‘combat
operations.’” Brief for United States as Amicus Curiae at 15,
Saleh v. Titan Corp., 131 S. Ct. 3055 (2011) (No. 09-1313).
Therefore, the United States argued that it was inappropriate
for the Saleh test to focus on whether the contractor was
engaged in combatant activities. Id. Second, the United States
contended that the Saleh test does not account for the fact that
the combatant activities exception provides immunity for
activities “arising out of” the military’s combatant activities.
It claimed that “[a] more precise focus on claims ‘arising out
of’ the military’s combatant activities would allow for a more
accurate assessment of the contractor’s distinct role, and avoid
confusing it with the role of military personnel.” Id. at 16.
Third, the United States explained that the Saleh court “did not
address whether application of the preemption defense it
50
recognized would be appropriate if contractor employees acted
outside the scope of their employment or the contractor acted
outside the scope of the contract.” Id. The United States
reiterated these arguments in the brief it filed in Al Shimari
and formulated the above test to address these defects. See
Brief of United States as Amicus Curiae at 16-20, Al Shimari,
679 F.3d 205 (Nos. 09-1335, 10-1891, 10-1921).
In Burn Pit II, the district court favorably cited these
amicus briefs and adopted the United States’ test. 925 F. Supp.
2d at 769-71. However, the United States’ criticisms of the
Saleh test are flawed in several respects. First, even if
government contractors cannot qualify as “combatants” under
domestic and international law, this fact is irrelevant because
the Saleh test does not require private actors to be combatants;
it simply requires them to be “integrated into combatant
activities.” Saleh, 580 F.3d at 9; cf. Johnson, 170 F.2d at 770(explaining that “combatant activities” suggests a “wider scope”
than “combatant”). Second, the United States inaccurately
contends that the Saleh test does not reflect the combatant
activities exception’s use of the phrase “arising out of.” In
fact, the Saleh test does mirror this phrase, specifying that “a
tort claim arising out of the contractor’s engagement in
[combatant activities over which the military retains command
authority] shall be preempted.” 580 F.3d at 9. Third, the
51
United States complains that the Saleh test does not address how
to treat contractors who act outside the scope of their
employment or violate the terms of their contract. However, the
purpose of the combatant activities exception is not protecting
contractors who adhere to the terms of their contracts; the
exception aims to “foreclose state regulation of the military’s
battlefield conduct and decisions.” Harris, 724 F.3d at 480.
By focusing on whether the contractor was “integrated into
combatant activities over which the military retain[ed] command
authority,” Saleh, 580 F.3d at 9, the Saleh test ensures that
the FTCA will preempt only state tort laws that touch the
military’s wartime decision making. We therefore reject the
rationales underlying the United States’ test—the same
rationales that buttressed the district court’s Burn Pit II
decision.
We agree with the Third Circuit’s determination that, if
the interest underpinning the combatant activities exception is
foreclosing state regulation of the military’s battlefield
conduct and decisions, the United States’ test is far too broad.
See Harris, 724 F.3d at 480-81. The test recommends preemption
when state tort laws touch any actions within the scope of the
contractor’s contractual relationship with the government, even
actions that the military did not authorize. In this way, the
United States’ test preempts state tort laws even when they do
52
not conflict with the federal purpose underlying the combatant
activities exception. To the contrary, the Saleh test allows
the preemption of state tort law only when it affects activities
stemming from military commands. See id. (reaching the same
conclusions). Due to the closer fit between the Saleh test and
the interest at play in this case, we adopt the Saleh test here.
The Saleh test requires a contractor to be “integrated into
combatant activities” for preemption to occur. We therefore
must determine whether waste management and water treatment
constitute “combatant activities” when these tasks occur in
warzones. In Johnson v. United States, the Ninth Circuit held
that combatant activities “include not only physical violence,
but activities both necessary to and in direct connection with
actual hostilities,” such as “supplying ammunition to fighting
vessels in a combat area during war.” 170 F.2d at 770. The
Third Circuit and at least one district court have adopted the
Johnson test. See Harris, 724 F.3d at 481 (maintaining
electrical systems on a military base in a warzone qualified as
combatant activity); Aiello v. Kellogg, Brown & Root Servs.,
Inc., 751 F. Supp. 2d 698, 711-12 (S.D.N.Y. 2011) (holding that
latrine maintenance constituted combatant activity because the
contractor “was providing basic life support services for active
military combatants on a forward operating base”).
53
We agree with the Johnson court’s reasoning and adopt its
test here. As the Ninth Circuit explained, “‘[c]ombat’ connotes
physical violence; ‘combatant,’ its derivative, as used here,
connotes pertaining to actual hostilities; the phrase ‘combatant
activities,’ [is] of somewhat wider scope.” Johnson, 170 F.2d
at 770 (footnote omitted). It therefore makes sense for
combatant activities to extend beyond engagement in physical
force. Furthermore, viewing “combatant activities” through a
broader lens furthers the purpose of the combatant activities
exception. If a government contractor remained subject to state
tort suits stemming from activities other than physical force,
the Saleh test would not successfully “foreclose state
regulation of the military’s battlefield conduct and decisions,”
Harris, 724 F.3d at 480, which could encompass conduct and
decisions that do not involve actual combat. Performing waste
management and water treatment functions to aid military
personnel in a combat area is undoubtedly “necessary to and in
direct connection with actual hostilities.” Johnson, 170 F.2d
at 770. We therefore hold that KBR engaged in combatant
activities under the Johnson test.
Next, the Saleh test asks whether “the military retain[ed]
command authority” over KBR’s waste management and water
treatment activities. 580 F.3d at 9. At this stage in the
litigation, although it is evident that the military controlled
54
KBR to some degree, see supra Part III.B, the extent to which
KBR was integrated into the military chain of command is
unclear. See Saleh, 580 F.3d at 4 (identifying the proper focus
as “the chain of command and the degree of integration that, in
fact, existed between the military and [the] contractors’
employees rather than the contract terms”). The district court
therefore erred in resolving this issue before discovery took
place. Accordingly, we vacate its decision to dismiss the
Servicemembers’ claims on the basis of preemption.
VI.
For the foregoing reasons, we vacate the district court’s
decision to dismiss the Servicemembers’ claims and remand for
further proceedings consistent with this opinion.
VACATED AND REMANDED
55