Alan Metzgar v. KBR, Incorporated

Filing

AMENDING ORDER/OPINION filed [999311402] amending and superseding Published Authored Opinion [999309771-2] dated 3/6/14. Originating case number: 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 Copies to all parties. Mailed to: William O'Neill. [13-1430]

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Filed:

March 7, 2014

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1430

(8:09-md-02083-RWT, 8:09-cv-00744-RWT, 8:09-cv-02739-RWT, 8:09cv-02740-RWT,
8:09-cv-02741-RWT,
8:09-cv-02742-RWT,
8:09-cv02743-RWT, 8:09-cv-02744-RWT, 8:09-cv-02745-RWT, 8:09-cv-02746RWT, 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, 8:09cv-02981-RWT,
8:09-cv-02982-RWT,
8:09-cv-02983-RWT,
8:09-cv02984-RWT, 8:09-cv-02985-RWT, 8:09-cv-02986-RWT, 8:09-cv-02987RWT, 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, 8:09cv-03305-RWT,
8:09-cv-03306-RWT,
8:09-cv-03307-RWT,
8:09-cv03308-RWT, 8:09-cv-03309-RWT, 8:09-cv-03310-RWT, 8:09-cv-03311RWT, 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, 8:10cv-00389-RWT,
8:10-cv-00390-RWT,
8:10-cv-00814-RWT,
8:10-cv00815-RWT, 8:10-cv-00836-RWT, 8:10-cv-01160-RWT, 8:11-cv-00336RWT, 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, 8:11cv-03542-RWT, 8:12-cv-03070-RWT)

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;

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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
2

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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.

O R D E R

The Court amends its opinion filed March 6, 2014, as
follows:
On page 29, footnote 5, line 2, the spelling of the
word "exception" is corrected.
For the Court – By Direction

/s/ Patricia S. Connor
Clerk

3

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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

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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

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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, 8:09cv-02740-RWT,
8:09-cv-02741-RWT,
8:09-cv-02742-RWT,
8:09-cv02743-RWT, 8:09-cv-02744-RWT, 8:09-cv-02745-RWT, 8:09-cv-02746RWT, 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, 8:09cv-02981-RWT,
8:09-cv-02982-RWT,
8:09-cv-02983-RWT,
8:09-cv02984-RWT, 8:09-cv-02985-RWT, 8:09-cv-02986-RWT, 8:09-cv-02987RWT, 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, 8:09cv-03305-RWT,
8:09-cv-03306-RWT,
8:09-cv-03307-RWT,
8:09-cv03308-RWT, 8:09-cv-03309-RWT, 8:09-cv-03310-RWT, 8:09-cv-03311RWT, 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, 8:10cv-00389-RWT,
8:10-cv-00390-RWT,
8:10-cv-00814-RWT,
8:10-cv00815-RWT, 8:10-cv-00836-RWT, 8:10-cv-01160-RWT, 8:11-cv-00336RWT, 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, 8:11cv-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.

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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

“unprecedented levels.”
and Afghanistan,

its

mission

has

risen

to

Comm’n on Wartime Contracting in Iraq

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

warzones.
how

to

personnel

Id.

whom

they

these

which

contractors

protects

under

government

the

actors

contractors from lawsuits in some cases.
United

Techs.

work

in

these

Courts—including this Court—have struggled with

treat

framework,

alongside

Corp.,

487

U.S.

500

current
but

not

legal
private

See, e.g., Boyle v.

(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

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in

Doc: 40

Iraq

and

treatment.

Filed: 03/07/2014

Afghanistan,
Appellants

Pg: 8 of 58

including

contend

waste

that

disposal

they

suffered

and

water

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

negligent

and

of

action:

intentional

negligence;

infliction
5

of

battery;

nuisance;

emotional

distress;

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willful

and

Filed: 03/07/2014

wanton

conduct;

Pg: 9 of 58

negligent

hiring,

training,

and

supervision; breach of duty to warn; breach of contract; and
wrongful death.
actions.
as

a

The Servicemembers contend that they suffered injuries

result

practices.
occurred

Many of the pending cases are purported class

of

KBR’s

According
because

KBR

waste
to

disposal

the

and

Servicemembers,

“violated

military

water

treatment

these

injuries

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.”
16, 1985).

Army Reg. 700-137, at 1-1 (Dec.

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
various

services.
“task

The

orders”

military
that

executes

incorporate

LOGCAP

III

“statements

of

through
work,”

which define KBR’s responsibilities.
In
contend

their
that

First
KBR

Amended

violated

Complaint,

LOGCAP
6

III’s

the
waste

Servicemembers
management

and

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water

Filed: 03/07/2014

treatment

components

Pg: 10 of 58

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.
report

that

the

Department

of

Defense

presented

to

A

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

Maryland for consolidated pretrial proceedings.

District

of

KBR filed its

first motion to dismiss for lack of subject matter jurisdiction
7

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Pg: 11 of 58

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

complaint.
full

fury

dismissal

based

on

the

facts

alleged

in

the

However, due to its concern about unleashing “the
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

proceedings

in

10,

this

2010,
case

in

the

district

light

of

the

court

stayed

Fourth

the

Circuit’s

pending decisions in Al-Quraishi v. L-3 Services, Inc., 657 F.3d
8

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201 (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

collateral order doctrine.

interlocutory

military

under

the

See Al Shimari v. CACI Int’l, Inc.,

679 F.3d 205 (4th Cir. 2012) (en banc).
treat

appeal

contractors

under

Taylor concerns how to

the

political

question

doctrine.
Following the resolution of these appeals and before any
jurisdictional discovery took place, KBR filed a renewed motion
to

dismiss

lack

of

twenty-three

appended

for

subject

new

matter

exhibits

to

jurisdiction.

the

renewed

KBR

motion

to

dismiss, and the Servicemembers appended two new declarations
from military officials to their opposition to KBR’s motion.

In

light

Al

of

Taylor,

Shimari

and

decision

in

Saleh

briefs
v.

Filarsky

that

Titan
v.

the

United

Corp.,

Delia,

132

and
S.

States
the

Ct.

filed

Supreme
1657

district court granted KBR’s motion to dismiss.

in

Court’s

(2012),

the

In re KBR,

Inc., Burn Pit Litig. (Burn Pit II), 925 F. Supp. 2d 752, 772-73
(D.

Md.

doctrine,

2013).

The

derivative

court

held

sovereign

that

the

immunity,

political
and

the

question
combatant

activities exception each provided a basis on which to dismiss
the Servicemembers’ claims.
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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).

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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.
217.

See id. at

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
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traditional

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subjects

of

Pg: 15 of 58

judicial

competence.”

Id.

at

548.

However, “acting under orders of the military does not, in and
of itself, insulate the claim from judicial review.”
658 F.3d at 411.

Taylor,

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,”

undertaking

independent

expressing

lack

of

the

(4)

“the

impossibility

resolution
respect

[of

due

the

of

a

issue]

coordinate

court’s
without

branches

of

government,” (5) an “unusual need for unquestioning adherence to
a political decision already made,” or (6) “the potentiality of
embarrassment

from

multifarious

departments on one question.”
This

Court

considered

pronouncements

by

various

Id. at 217.
whether

examining

a

government

contractor’s actions can invoke a political question in Taylor.
12

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doing

Filed: 03/07/2014

the

government

contractor context through a new two-factor test.

Under the

Taylor

so,

we

“the

to

658

Second,

consider

Baker

government contractor] was under the military’s control.”
411.

first

adapted

[the

at

we

Court

which

F.3d

test,

the

Pg: 16 of 58

evaluate

extent

“whether

to

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
13

at

a

military

base

in

Iraq

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despite Marine Corps’ instructions not to do so.
When

considering

government

the

first

contractor

was

factor,
not

the

under

Court

the

Id. at 404.

held

that

military’s

the

control

because its contract specified that “the contractor shall have
exclusive

supervisory

employees.”

Id.

at

authority
411

and

(internal

responsibility

quotation

marks

over

omitted).

However, when considering the second Taylor factor, the Court
explained

that

contributory

assessing

negligence

the

defense

government

would

require

contractor’s
it

to

evaluate

Taylor’s conduct and certain military decisions, such as the
military’s choice to employ a generator.
Court

therefore

determined

that

Id. at 411-12.

“an

analysis

The

of

[the

contractor’s] contributory negligence defense would ‘invariably
require the Court to decide whether . . . the Marines made a
reasonable

decision.’”

original)

(quoting

Id.

at

Taylor,

411

2010

(second
WL

alteration

1707530,

at

in
*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.
satisfies

The Court’s analysis suggests that, if a case

either

factor,

it

is

nonjusticiable

under

the

political question doctrine.
Although the Court evaluated Taylor’s claim under the new
two-factor

test,

it

analysis.

In

footnote,

a

did

not

ignore

the
14

Court

the
noted

traditional
that

Baker

considering

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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.
factual

The Court added this analysis so it could compare the
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.
that

the

This comparison simply bolstered the decision

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.
The
counseled
doctrine
With

district
in

court

favor

rendered

respect

to

“Military Control” Factor

of
the

the

concluded
finding

that

that

the

Servicemembers’

first

Taylor

both

political

claims

factor,

Taylor

the

factors
question

nonjusticiable.
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

based

&

n.14.

The

court

15

this

determination

on

the

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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.”
The

Servicemembers

conclusion

that

the

object

military

to

Id.

the

controlled

district

KBR

and,

court’s

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:

Servicemembers

Camp
argue

without

military

contend

that

the

that

Taji
any

in

other

authorization.
Overseas

Iraq.
surface

The

burning

Servicemembers

Environmental
16

Accordingly,

Baseline

the

occurred
further
Guidance

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Document

Filed: 03/07/2014

supports

their

Pg: 20 of 58

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
presented

to

to

a

report

Congress,

that

open-air

the

burn

Department
pits

method of waste disposal on military bases.

are

of

an

Defense

acceptable

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

incinerators.

Id.

other

options,

such

as

landfills

and

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.”
marks

omitted).

An

Id. at 5 n.5 (internal quotation

“operational

commander”

commander of a Joint Task Force or deployed force.

is

the

senior

Id.

Various task orders associated with LOGCAP III mesh with
the report’s description of surface burning as a waste disposal
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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

notification”

engage
and

in

surface

indicate

that

burning

only

surface

burning

preferred method of waste disposal.

“[u]pon
is

formal

not

the

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.
served

as

the

Army’s

Health

Protection

Chief

Officer

of

for

Major Tara Hall, who

Preventive
the

Medicine

Multi-National

and

Force

Corps-Iraq,

stated that “the Army decided which method of waste disposal to
use at military bases in Iraq.
of

waste

environment

disposal
of

Iraq.”

were

KBR did not decide which methods

appropriate

According
18

to

in
Gerald

the
E.

contingency
Vincent,

a

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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

Protection
Readiness
military,

Postlewaite,

and
and
as

Acting

Readiness

Programs

Health
a

Assurance,

matter

of

policy

Director
and

Force

Director

explained
and

of

of

Force

“the

U.S.

decides

which

that

doctrine,

Health

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
exercised

some

control

evidence
over

demonstrates

KBR’s

burn

that

pit

the

military

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,
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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.
Materials

and

Safety

Patrick Perkinson, a former Hazardous
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

responsible

Lasiter,

for

stated

operating

burn

that
pits

KBR
in

“was

Iraq

exclusively

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.
and

Pursuant to Iraq Task Orders 59, 89, 139, and 159

Afghanistan

operate[d]

and

Task

Orders

maintain[ed]

116

and

potable
20

118,

KBR

“install[ed],

and

non-potable

water

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systems.”

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Afghanistan

Task

Pg: 24 of 58

Orders

13

and

97

direct

KBR

to

“produce, distribute, and store potable/non-potable water,” and
Afghanistan

Task

Orders

14

distribute,

and

dispose

of

and

98

require

potable

and

KBR

to

“produce,

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 CorpsIraq,

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

21

Court—look

to

the

Eleventh

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decision

Services, Inc.

in

Pg: 25 of 58

Carmichael

v.

Kellogg,

Brown

&

Root

In Carmichael, the Eleventh Circuit considered

whether the political question doctrine barred a negligence suit
against a government contractor and its employee.
1275.

The employee was driving a truck in a military convoy

transporting fuel in Iraq.
over,

572 F.3d at

the

plaintiff

was

Id. at 1278.
seriously

permanent vegetative state.

Id.

When the truck rolled

injured,

leaving

him

in

a

The Eleventh Circuit agreed

with the district court’s conclusion that the plaintiff’s suit
would

“require

reexamination

of

many

sensitive

judgments

decisions entrusted to the military in a time of war.”
1281.

Specifically,

pursuant

to

the

Army

Field

and

Id. at

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,

distance

between

necessary.

Id.

the

number

vehicles,

of

and

trucks

what

in

the

security

convoy,

measures

the
were

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

convoy in Carmichael.

of

the

military’s

control

over

the

In fact, based on the current record, the

case at hand more closely resembles the situation in Harris v.
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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.”
F.3d at 467.

724

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.
Similarly,

in

this

case,

the

military

Id.

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

burning.

what

Several

provided—demonstrate

substances

other
that

to

dispose

of

declarations—including
the

military

chose

via

some

which

surface
that

KBR

method

of

waste disposal to use, but they do not indicate whether the
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military told KBR how to implement that method.
although

two

declarants

stated

that

the

Furthermore,

military

controlled

water testing in Iraq, neither declarant spoke regarding water
treatment

in

litigation.

Afghanistan,
In

short,

which

is

although

the

also

at

issue

in

evidence

shows

that

this
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

judgments.

defenses
See id.

require

us

to

question

the

military’s

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.”
2d at 765.

Burn Pit II,

925 F. Supp

The district court also explained that KBR planned

to raise a causation defense alleging that the military—not KBR—
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caused the Servicemembers’ injuries. 1
this

defense

would

“require

the

Id.

[c]ourt

According to KBR,
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[]

.

reasonableness

.

.
of

would

necessarily

military

require

decisions,”

the

review

of

district

the
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

1

evidence,

including

military

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

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declarations
liability
were

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and

government

defense

caused

by

that

documents,

[the

military

Pg: 29 of 58

that

Servicemembers’]

decisions

and

supports
alleged

conduct,

not

KBR’s

injuries
by

KBR.”

However, unlike the contributory negligence defense at issue in
Taylor,

analyzing

“invariably

require

[military]

made

alteration

in

marks omitted).

a

KBR’s
the

defense
Court

to

reasonable

original)

in

this

decide

decision.”

(emphasis

added)

case

whether
Id.

would
.

at

(internal

not

.

the

411

.

(first

quotation

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

decide

court

to

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
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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.
raised
case,

a

causation

contending

defense

that

724 F.3d at 463.

similar

the

to

military

KBR’s

The contractor

defense

proximately

soldier’s death through its maintenance actions.
The

Third

Circuit

concluded

that

the

in

caused

this
the

Id. at 474.

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.

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military

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contractor,

preventing

military’s decisions. 4
We

find

the

the

need

to

evaluate

the

persuasive

and

Id. at 474.

Harris

court’s

applicable

here.

KBR’s

evaluation

of

military’s

the

Pg: 31 of 58

reasoning

causation

defense

decision

does

making

not

require

unless

(1)

the

military caused the Servicemembers’ injuries, at least in part,
and

(2)

the

system that

Servicemembers

allocates

invoke

liability

a

based

proportional-liability
on

fault.

The

second

Taylor factor therefore does not necessarily counsel in favor of
nonjusticiability in this case.
the

second

Taylor

Servicemembers’
political

claims

question

nonjusticiable

factor

at

are

currently

indicates

nonjusticiable,

doctrine

this

Because neither the first nor

time

does
and

not

vacate

we

hold

render
the

that
that

this

district

the
the
case

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

4

that

KBR

was

entitled

to

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).

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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.
U.S. 535, 538 (1980).

See United States v. Mitchell, 445
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

5

or

an

employee

of

the

The district court did not explicitly rely on the
discretionary function exception 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.

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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
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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

The concept of derivative sovereign immunity stems from
Supreme

Court’s

decision

in

Construction Co., 309 U.S. 18 (1940).
Court

considered

whether

a

private

Yearsley

v.

W.A.

Ross

In that case, the Supreme
contractor

could

be

held

liable for damage resulting from a construction project that
Congress authorized.

Id. at 19-20.

erosion

nearby

that

damaged

property,

When the project caused
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.

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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,

acted within its constitutional power.
the

Supreme

liable

for

Court

determined

damaging

the

that

Id.

the

plaintiffs’

land

In

fact,

the

does
Court

not

explicitly

based

its

mention

holding

on

it

Applying this test,

contractors

pursuant to Congress’s valid authorization.
Yearsley

meaning

because

were
they

not

acted

Id. at 21-22.
sovereign
the

fact

immunity.
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

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

quite

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Id.

Doc: 40

at

22.

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Despite

this

Pg: 36 of 58

narrow

holding,

this

Court

has

recognized, based on Yearsley, “that contractors and common law
agents

acting

within

the

scope

of

their

employment

United States have derivative sovereign immunity.”

for

Butters v.

Vance Int’l, Inc., 225 F.3d 462, 466 (4th Cir. 2000).
sister circuits have reached similar conclusions.
v.

Bean

Dredging

LLC,

589

F.3d

196,

206-07

the

Our

See Ackerson

(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

litigation.

court

could

not

determine

at

See 736 F. Supp. 2d at 968.

that

point

in

the

The district court

reversed course in Burn Pit II, finding that the Supreme Court’s

33

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2012

Filed: 03/07/2014

decision

in

Filarsky

Pg: 37 of 58

v.

Delia

derivative sovereign immunity to KBR.
767.

Specifically,

cautioned

against

the

district

leaving

compelled

extending

See 925 F. Supp. 2d at

court

individuals

noted
who

that
work

Filarsky
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

2d

at

767.

facts

at

hand,

Pit

applying

II,

925

the

concluded

law

that

F.
to

KBR

Supp.
the

was

immune

from

Therefore,
the

suit

without

district

because

it

court
was

a

military contractor “performing services for the government in
war zones.”
In

Filarsky,

attorney
§ 1983

Burn Pit II, 925 F. Supp. 2d at 767.

was

entitled

action

investigating
avoid work.

the

Supreme

considered

whether

qualified

immunity

he

when

to

Court

assisted

government

a

firefighter

132 S. Ct. at 1660-61.

was

in

whether
a

42

U.S.C.

employees

feigning

an

illness

in
to

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

employee.

whether
Id.

at

an

individual

1665

was

(internal
34

a

full-time

quotation

marks

government
omitted).

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Instead, the relevant inquiry is whether a government employee
performing

the

immunity.

same

Id.

action
The

would

Court

be

then

entitled
turned

to

to

qualified

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

individuals

must

immunity.”).

claim

qualified

satisfy

our

immunity
usual

.

test

.
for

.

.

Such

conferring

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.”
35

Id. at 1660.

After

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the

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history

of

common

Pg: 39 of 58

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

Supreme

that

the

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

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not deterred from public service” by minimizing the likelihood
that

their

government

litigation.

Id.

government

work

will

expose

their

employer

to

Finally, by extending sovereign immunity to

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.”
should
broadly.

225 F.3d at 466.

construe

the

According

scope
to

the

of

The parties debate whether we
KBR’s

authority

Servicemembers,

KBR

narrowly
exceeded

or
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

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its

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authority

Pg: 41 of 58

by

general

performing

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.”
quotation

marks

309 U.S. at 20 (emphasis added) (internal

omitted).

This

language

suggests

that

the

contractor must adhere to the government’s instructions to enjoy
derivative
umbrella

of

sovereign
the

work

immunity;
that

the

8

staying

within

government

the

authorized

thematic
is

not

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.

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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

government contract.
that,

“[t]o

contractor]

the
was

constructing

road

See 323 F.2d at 580-82.

extent
done

a

that

under

the

its

work

contract

pursuant

a

The court held

performed
with

to

the

by

[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.
under

In other words, when the contractor exceeded its authority
the

escaping

contract,

Yearsley

liability;

the

Accordingly,

as

Yearsley

and

did

not

provide

landowners’
Myers

show,

the

basis

acquiescence
KBR

is

for
did.

entitled

to

derivative sovereign immunity only if it adhered to the terms of
its contract with the government.

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At
contain

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this

point

enough

in

the

evidence

Pg: 43 of 58

litigation,

to

the

determine

record

whether

KBR

does

not

acted

in

conformity with LOGCAP III, its appended task orders, and any
laws and regulations that the contract incorporates.
lack

evidence

regarding

whether

the

military

We also

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.
as

we

explain

above,

a

discretionary

“involves

an

Berkovitz, 486 U.S. at 536.

element of judgment or choice.”

function

However,

If

the military dictated exactly how KBR should undertake its waste
management and water treatment tasks, those functions were not
discretionary

because

judgment or choice.

they

did

not

involve

an

element

of

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.

before

The

district

determining

whether

court
KBR

should
is

conduct

entitled

this
to

inquiry

derivative

sovereign immunity under the discretionary function exception.
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V.
Finally, the Servicemembers contend that the district court
erred in finding that the FTCA’s combatant activities exception
preempted
Pursuant

the
to

state

the

tort 9

combatant

laws

undergirding

activities

their

exception,

the

claims.
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.
9

See Harris, 724 F.3d

We 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.”).

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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.
976-78.

See Burn Pit I, 736 F. Supp. 2d at

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.
inquiry.

The Supreme Court’s Boyle decision governs this

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

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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.
at

504-07.

Second,

it

determined

whether

See id.

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.”
The

Court

then

explained

that

10

Id. at 511.

“‘second-guessing’

[the

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.

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government’s

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selection

of

a

Pg: 47 of 58

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.
511-12 (citation omitted).
that

ensured

preemption

Third, the Court formulated a test

of

federal interests at play.

Id. at

state

laws

that

clashed

with

the

See id. at 512-13.

A.
We now turn to the first step of the Boyle analysis.
D.C.

Circuit,

Ninth

Circuit,

and

Third

Circuit

have

The
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

activities

‘by

to

exempt

their

very

combatant
nature

activities

should

hindrance of a possible damage suit.’”

be

because

free

from

such
the

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
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for tort law—deterrence of risk-taking behavior, compensation of
victims,

and

punishment

of

tortfeasors—are

singularly

out

place in combat situations, where risk-taking is the rule.”

of
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.”
similar
interest

considerations,
underlying

“recogniz[ing]

that

the

the

Ninth

combatant

during

wartime

Circuit

Id.

Based on

articulated

activities
encounters

exception
no

duty

the
as
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
Harris.

Third

Circuit

rejected

both

of

these

approaches

in

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
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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.
at

480.

The

court

cited

Saleh

See Harris, 724 F.3d

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.

test

falls

that

The Third Circuit therefore announced a

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.
Supreme

Court

reasoned

that

no

“uniquely

In Boyle, the

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
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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

underlying the Servicemembers’ claims.
was

discrete

because

it

was

the

state

tort

laws

In Boyle, this conflict

impossible

to

construct

the

helicopter according to the government’s design and satisfy the
state-imposed duty of care.
combatant

activities

487 U.S. at 509.

exception

47

realm,

the

However, in the
conflict

between

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interests

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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
combatant

and

decisions,

activity

it

inevitably

exception’s

conflicts

goal

of

regulation of the military during wartime.

with

eliminating

the
such

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.

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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

Boyle, 487 U.S. at 512-13.

activities

exception.

See

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.
test:

In Saleh, the D.C. Circuit articulated the following
“During wartime, where a private service contractor is

integrated
retains

into

command

combatant
authority,

activities
a

tort

over

claim

which

the

arising

out

military
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

operation from suit.

an

interest

Id. at 8-9.

in

immunizing

a

military

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
49

scope

of

its

contractual

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with

the

federal

Pg: 53 of 58

government

incident out of which the claim arose.”

at

the

time

of

the

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).
the

amicus

brief

that

identified

three

key

explained

that,

“[u]nder

civilian

contractors

it

filed

flaws

Saleh,

the

in

in

Saleh

domestic

engaged

in

the

United

test.

and

States

First,

international

authorized

In

activity

are

it

law,
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

engaged in combatant activities.

whether

Id.

the

contractor

was

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
50

the

preemption

defense

it

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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

flawed

test

government

are

in

contractors

several

cannot

respects.

qualify

as

First,

even

“combatants”

if

under

domestic and international law, this fact is irrelevant because
the Saleh test does not require private actors to be combatants;
it

simply

requires

activities.”

them

to

be

“integrated

into

combatant

Saleh, 580 F.3d at 9; cf. Johnson, 170 F.2d at 770

(explaining that “combatant activities” suggests a “wider scope”
than

“combatant”).

contends

that

the

Second,
Saleh

test

the

United

does

not

States

reflect

inaccurately
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.”
51

580 F.3d at 9.

Third, the

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United States complains that the Saleh test does not address how
to

treat

contractors

who

act

outside

the

scope

employment or violate the terms of their contract.

of

their

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.”
By

focusing

on

whether

the

Harris, 724 F.3d at 480.

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

States’

rationales

underlying
that

the

buttressed

United
the

district

test—the

court’s

Burn

same
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
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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.
conclusions).

See id. (reaching the same

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.
must

determine

whether

waste

management

activities”

when

We therefore

and

water

treatment

these

tasks

occur

constitute

“combatant

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”).

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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.”
at

770

(footnote

combatant
force.

omitted).

activities

to

It

extend

therefore

beyond

Johnson, 170 F.2d
makes

engagement

sense
in

for

physical

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

decisions that do not involve actual combat.
management

and

water

treatment

functions

conduct

and

Performing waste
to

aid

military

personnel in a combat area is undoubtedly “necessary to and in
direct connection with actual hostilities.”
at

770.

We

therefore

hold

that

KBR

Johnson, 170 F.2d

engaged

in

combatant

activities under the Johnson test.
Next, the Saleh test asks whether “the military retain[ed]
command

authority”

treatment activities.

over

KBR’s

waste

580 F.3d at 9.

management

and

water

At this stage in the

litigation, although it is evident that the military controlled
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KBR to some degree, see supra Part III.B, the extent to which
KBR

was

unclear.

integrated

into

the

military

chain

of

command

is

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

employees rather than the contract terms”).

[the]

contractors’

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