Multidistrict Burn Pit Litigation Raised Political Question

Multidistrict litigation against wartime contractors was dismissed by the District Court for the District of Maryland because the plaintiffs’ claims were non-justiciable under the political question doctrine. The majority of the plaintiffs were United States military personnel who sought to recover for injuries allegedly suffered as a result of exposure to open burn pits and contaminated water at military bases throughout Iraq and Afghanistan. However, courts lack jurisdiction to decide political questions. Under Taylor v. Kellogg Brown & Root Services, Inc. ( 55 CCF ¶79,672), the applicability of the doctrine is determined by considering the extent to which a contractor was under the military’s control and whether national defense interests were closely intertwined with the military’s decisions governing the contractor’s conduct.

Dismissed

The court found both factors weighed heavily in favor of dismissal. With respect to the “military control” factor, the contractors provided clear evidence that established direct and fundamental military management and control of contractor employees in both theatres of war. Moreover, the decision to use open burn pits was made by the military, not the contractors. Thus, any analysis of the burn pit claims necessarily would involve questioning military judgments and the contractors’ actions under the military’s direction. The same could be said with respect to the contractors’ supply of water. Under the “national defense interest” factor, the military made the decision to use open burn pits, decided where to locate them, and supervised all aspects of the provision of water supply services to military personnel in the two war zones. The court concluded “[t]he actions complained of are not ones taken by the [contractors] alone, and [their] defenses (e.g., contributory negligence and causation) would necessarily require review of the reasonableness of military decisions, a role that is simply not appropriate for, or within the competence of, the judiciary.” ( In re: KBR, Inc., Burn Pit Litigation, DC Md, 57 CCF ¶80,045)