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District Court Allows Plaintiffs Limited Discovery in Burn Pit Litigation




A motion to dismiss tort claims for lack of subject matter jurisdiction was denied by the District Court for the District of Maryland because the political question doctrine did not bar the lawsuit and the factual record was not yet developed enough to shield the contractors with derivative sovereign immunity. The plaintiffs --soldiers, veterans, and former contract employees stationed on military bases in Iraq and Afghanistan --filed suit against defense contractors, alleging injuries resulting from exposure to contaminated water and toxic emissions from burn pits. The contractors, providers of combat theatre logistics support under the Logistics Civil Augmentation Program, moved to dismiss arguing, among other things, the claims were nonjusticiable under the political question doctrine, which bars suits involving certain political questions that fall outside the jurisdiction of federal courts. The Supreme Court has set forth six independent tests for determining whether a political question deprives a court of jurisdiction over a particular case (see Baker v. Carr, 369 US 186 (1962)).

Justiciability


The court concluded none of the Baker tests precluded judicial review. The plaintiffs' narrowly tailored claims, along with significant restrictions on the scope of the inquiry, did not implicate the first Baker test --a textually demonstrable constitutional commitment of the issue to a coordinate political department. The second Baker test --a lack of judicially discoverable and manageable standards --could only be considered after discovery developed the facts surrounding any unauthorized acts by the contractors. As to the third Baker test --the impossibility of deciding the case without an initial policy determination of a kind clearly for nonjudicial discretion --this case did not involve formulating any policies clearly committed to another political branch's discretion. As to the fourth and closely related sixth Baker factor, the court believed it could adjudicate the claims without disrespecting or embarrassing coordinate branches of government, subject to certain limitations, including inviting the United Sates to participate as amicus curiae. According to the court, subjecting defense contractors to potential tort liability for actions not approved by the military arguably expresses respect for the executive branch and is consistent with a Department of Defense final rule (70,016.473). Finally, the defendants did not argue that the fifth Baker test --an unusual need for unquestioning adherence to a political decision already made --rendered the case ineligible for judicial review.

Derivative Immunity


The contractors also asserted they were entitled to "derivate sovereign immunity" based on the discretionary function exception to the federal government's waiver of immunity in the Federal Torts Claims Act (see 28 USC 2680), which qualifies a contractor for an exclusion of liability from tort claims only if the contractor executed the will of the government and did not exceed the scope of its delegated authority (Yearsley v. W.A. Ross Construction Co., 309 US 18 (1940). After a thorough review of the relevant case law, the court found Yearsley did not insulate the contractors from liability because the essential condition --acting within the scope of the authority bestowed by the sovereign --had not yet been established. The plaintiffs' claims were grounded in actions allegedly taken in violation of a government contract's terms, and this fundamental factual dispute could not be resolved on a record that did not contain the entire contract, evidence establishing performance in compliance with the contract's terms, or evidence that the military, when necessary, permitted or directed the contractors to deviate from the contract's terms. Consequently, the court allowed carefully limited discovery geared towards identifying any unauthorized actions performed by the contractors. (In re: KBR Inc., Burn Pit Litigation, DC Md, 54 CCF 79,434)








































 






 

 

(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )

     
  
 

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