Rehearing denied in suit filed by soldiers against allegedly negligent Iraq battlefield contractor

NEW ORLEANS – A federal appeals court has denied an appeal by a group of Iraq war veterans who claim they were exposed to cancer causing chemicals by a military contractor.

The U.S. Court of Appeals for the Fifth Circuit denied the appeal requesting a petition for panel rehearing from the U.S. District Court for the Southern District of Texas in Houston.

The lawsuit was originally filed by Sergeant Mark Mcmanaway, David Rancourt, Brent Lasher, Jody Aistrop and William Bickell against KBR Inc.; Kellogg, Brown & Root Services Inc.; KBR Technical Services Inc.; Overseas Administration Services Inc. and Service Employees International Inc. The plaintiffs, soldiers from National Guard and the British Royal Airforce, filed suit against KBR, a U.S. based contractor working in Iraq, over soldiers’ alleged exposure to a dangerous chemical.

According to Judge Edith H. Jones’ opinion in the case, the plaintiffs were provided security and transport in the Qarmat Ali water treatment plant in support of the 2003 military occupation of southern Iraq. At the time KBR was in Qarmat Ali as representatives of the United States’ plan to recommence Iraqi oil field production. The plaintiffs asserted that KBR negligently exposed them to the dangerous carcinogen sodium dichromate while they were protecting the plant from enemy attack.

Jones had to decide whether the case against KBR should be decided in a courtroom and whether, according to the Federal Torts Claims Act, KBR is immune from claims “arising out of the combatant activities” of the military during wartime.

Jones held that the case should not be decided in a court of law and is more appropriately dealt with as a political question.  In addition, Jones wrote that military contractor cases have experienced intense variability in courtroom rulings and no unified legal precedent exists for resolving these cases efficiently. Jones also opined that KBR acted in coordination with United States military interests and should therefore be seen as an extension of the military in the context of this case.  In her opinion Jones held that if KBR is legitimately seen as acting under military authority, the case could only be considered as a political question. Jones applied the combatant activities exception to the KBR in her opinion, a provision freeing military personnel from the uncertainties and gray areas associated with potential lawsuits.

Jones concluded her opinion by insisting the United States already has to pay high costs associated with hiring private contractors, and has difficult strategic decisions to make regarding cost allocation.  In closing Jones advocated against lawsuits involving military contractors, as “Planning and winning military conflicts is hard enough without asking the military to bear the cost and associated inflexibilities imposed by anticipating post hoc lawsuits.”

 

Case no. 12-20763