Argued: October 30, 2013
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:09-md-02083-RWT, 8:09-cv-00744-RWT, 8:09-cv-02739-RWT, 8:09-cv-02740-RWT, 8:09-cv-02741-RWT, 8:09-cv-02742-RWT, 8:09-cv-02743-RWT, 8:09-cv-02744-RWT, 8:09-cv-02745-RWT, 8:09-cv-02746-RWT, 8:09-cv-02747-RWT, 8:09-cv-02748-RWT, 8:09-cv-02749-RWT, 8:09-cv-02750-RWT, 8:09-cv-02979-RWT, 8:09-cv-02980-RWT, 8:09-cv-02981-RWT, 8:09-cv-02982-RWT, 8:09-cv-02983-RWT, 8:09-cv-02984-RWT, 8:09-cv-02985-RWT, 8:09-cv-02986-RWT, 8:09-cv-02987-RWT, 8:09-cv-03299-RWT, 8:09-cv-03300-RWT, 8:09-cv-03301-RWT, 8:09-cv-03302-RWT, 8:09-cv-03303-RWT, 8:09-cv-03304-RWT, 8:09-cv-03305-RWT, 8:09-cv-03306-RWT, 8:09-cv-03307-RWT, 8:09-cv-03308-RWT, 8:09-cv-03309-RWT, 8:09-cv-03310-RWT, 8:09-cv-03311-RWT, 8:09-cv-03312-RWT, 8:09-cv-03313-RWT, 8:09-cv-03314-RWT, 8:09-cv-03315-RWT, 8:09-cv-03316-RWT, 8:10-cv-00388-RWT, 8:10-cv-00389-RWT, 8:10-cv-00390-RWT, 8:10-cv-00814-RWT, 8:10-cv-00815-RWT, 8:10-cv-00836-RWT, 8:10-cv-01160-RWT, 8:11-cv-00336-RWT, 8:11-cv-00337-RWT, 8:11-cv-00338-RWT, 8:11-cv-01092-RWT, 8:11-cv-02634-RWT, 8:11-cv-02635-RWT, 8:11-cv-03292-RWT, 8:11-cv-03542-RWT, 8:12-cv-03070-RWT)
Susan L. Burke, BURKE PLLC, Washington, D.C., for Appellants.
Robert A. Matthews, MCKENNA LONG & ALDRIDGE LLP, Washington, D.C., for Appellees.
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.
Before DIAZ and FLOYD, Circuit Judges, and Joseph F. ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation.
FLOYD, Circuit Judge:
Since the United States began its military operations in Afghanistan and Iraq in 2001 and 2003, respectively, its use of private contractors to support its mission has risen to "unprecedented levels." Comm'n on Wartime Contracting in Iraq and Afghanistan, At What Risk? Correcting Over-Reliance on Contractors in Contingency Operations 1 (Feb. 24, 2011) (laying out the findings of a bipartisan congressional commission). At times, the number of contract employees has exceeded the number of military personnel alongside whom they work in these warzones. Id. Courts-including this Court-have struggled with how to treat these contractors under the current legal framework, which protects government actors but not private contractors from lawsuits in some cases. See, e.g., Boyle v. United Techs. Corp., 487 U.S. 500 (1988); Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458 (3d Cir. 2013); Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402 (4th Cir. 2011); Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009); Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271 (11th Cir. 2009). This case requires us to make another contribution to this changing legal landscape.
Appellees are companies that contracted with the United States government to provide certain services at military bases in Iraq and Afghanistan, including waste disposal and water treatment. Appellants contend that they suffered harm as a result of the contractors' waste disposal and water treatment practices and brought state tort and contract claims to seek redress for their alleged injuries. Prior to discovery, the district court dismissed Appellants' claims, holding that (1) the claims were nonjusticiable, (2) the contractors were immune from suit, and (3) federal law preempted the state tort laws underlying Appellants' claims. Because the district court lacked the information necessary to dismiss Appellants' claims on these bases, we vacate the district court's decision and remand this case for further proceedings consistent with this opinion.
The Army contracted with Appellees KBR, Inc.; Kellogg Brown & Root LLC; Kellogg Brown & Root Services, Inc.; and Halliburton (collectively, KBR) to provide waste disposal and water treatment services on military bases in Iraq and Afghanistan. In fifty-eight separate complaints, Appellants-the majority of whom are United States military personnel-(Servicemembers) brought various state tort and contract claims, including the following causes of action: negligence; battery; nuisance; negligent and intentional infliction of emotional distress; willful and wanton conduct; negligent hiring, training, and supervision; breach of duty to warn; breach of contract; and wrongful death. Many of the pending cases are purported class actions. The Servicemembers contend that they suffered injuries as a result of KBR's waste disposal and water treatment practices. According to the Servicemembers, these injuries occurred because KBR "violated military directives in its performance of waste disposal and water treatment services" and breached LOGCAP III-its contract with the government.
"LOGCAP" stands for "Logistics Civil Augmentation Program." Under that program, which the Army established in 1985, "civilian contractors [may] perform selected services in wartime to augment Army forces" and "release military units for other missions or fill shortfalls." Army Reg. 700-137, at 1-1 (Dec. 16, 1985). On December 14, 2001, the Army awarded the LOGCAP III contract to KBR. LOGCAP III is a ten-year contract that governs a wide array of services on military bases in Iraq, Afghanistan, Kuwait, Djibouti, Jordan, Kenya, Uzbekistan, and Georgia, including waste disposal, water treatment, and other vital services. The military executes LOGCAP III through various "task orders" that incorporate "statements of work, " which define KBR's responsibilities.
In their First Amended Complaint, the Servicemembers contend that KBR violated LOGCAP III's waste management and water treatment components in two major ways. First, the Servicemembers allege that KBR failed to properly handle and incinerate waste by "burn[ing] vast quantities of unsorted waste in enormous open air burn pits with no safety controls" from 2003 to the present. They aver that the burned waste included trucks, tires, rubber, batteries, Styrofoam, metals, petroleum, chemicals, medical waste, biohazard materials, human remains, asbestos, and hundreds of thousands of plastic water bottles. A report that the Department of Defense presented to Congress identifies many of these items as "prohibited from burning." Dep't of Defense, Report to Congress on the Use of Open-Air Burn Pits by the United States Armed Forces 6 (Apr. 28, 2010). According to the Servicemembers, the smoke from these burn pits contained "carcinogens and respiratory sensitizers . . ., creating a severe health hazard [and] potentially causing both acute and chronic health problems." Second, the Servicemembers contend that KBR provided contaminated water to military forces. Specifically, they argue that KBR did not perform water quality tests or ensure that water contained proper levels of chlorine residual.
On October 16, 2009, the Judicial Panel on Multidistrict Litigation transferred all of the cases to the District of Maryland for consolidated pretrial proceedings. KBR filed its first motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on January 29, 2010. KBR argued that (1) the Servicemembers' claims are nonjusticiable under the political question doctrine; (2) KBR is entitled to "derivative sovereign immunity" based on the "discretionary function" exception to the federal government's waiver of immunity in the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq.; and (3) the FTCA's "combatant activities" exception preempts the state tort laws underlying the Servicemembers' claims. The district court denied the first motion to dismiss without prejudice, concluding that it did not have enough information to decide whether to dismiss for lack of subject matter jurisdiction. See In re KBR, Inc., Burn Pit Litig. (Burn Pit I), 736 F.Supp.2d 954, 957 (D. Md. 2010). The court found that the political question doctrine, derivative sovereign immunity, and the combatant activities exception did not compel dismissal based on the facts alleged in the complaint. However, due to its concern about unleashing "the full fury of unlimited discovery" on "government contractors operating in war zones, " the court asked the parties to submit a joint discovery plan for limited jurisdictional discovery. Id. at 979.
On December 10, 2010, the district court stayed the proceedings in this case in light of the Fourth Circuit's pending decisions in Al-Quraishi v. L-3 Services, Inc., 657 F.3d 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 interlocutory appeal under the collateral order doctrine. See Al Shimari v. CACI Int'l, Inc., 679 F.3d 205 (4th Cir. 2012) (en banc). Taylor concerns how to treat military contractors under the political question doctrine.
Following the resolution of these appeals and before any jurisdictional discovery took place, KBR filed a renewed motion to dismiss for lack of subject matter jurisdiction. KBR appended twenty-three new exhibits to the renewed motion to dismiss, and the Servicemembers appended two new declarations from military officials to their opposition to KBR's motion. In light of Taylor, briefs that the United States filed in Al Shimari and Saleh v. Titan Corp., and the Supreme Court's decision in Filarsky v. Delia, 132 S.Ct. 1657 (2012), the district court granted KBR's motion to dismiss. In re KBR, Inc., Burn Pit Litig. (Burn Pit II), 925 F.Supp.2d 752, 772-73 (D. Md. 2013). The court held that the political question doctrine, derivative sovereign immunity, and the combatant activities exception each provided a basis on which to dismiss the Servicemembers' claims.
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.
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).
A. Political Question Doctrine Background
We turn first to KBR's argument that the political question doctrine renders the Servicemembers' claims nonjusticiable. A claim presents a political question when the responsibility for resolving it belongs to the legislative or executive branches rather than to the judiciary. See Baker v. Carr, 369 U.S. 186, 210 (1962) ("The nonjusticiability of a political question is primarily a function of the separation of powers."). The political question doctrine prevents the courts from encroaching on issues that the Constitution assigns to these other branches or that the judiciary is ill-equipped to decide. See id. at 217. However, in determining whether the questions that this case presents belong to another branch of government, we remain mindful of the fact that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
"[M]ost military decisions lie solely within the purview of the executive branch." Taylor, 658 F.3d at 407 n.9. As this Court explained in Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012), "the Constitution delegates authority over military affairs to Congress and to the President as Commander in Chief. It contemplates no comparable role for the judiciary. . . . [J]udicial review of military decisions would stray from the traditional subjects of judicial competence." Id. at 548. However, "acting under orders of the military does not, in and of itself, insulate the claim from judicial review." Taylor, 658 F.3d at 411. Therefore, although cases involving military decision making often fall in the political question box, we cannot categorize such a case as nonjusticiable without delving into the circumstances at issue.
The Supreme Court announced a six-factor test for assessing whether a claim poses a political question in Baker v. Carr. Pursuant to Baker, cases involving political questions evince (1) "a textually demonstrable constitutional commitment of the issue to a coordinate political department, " (2) "a lack of judicially discoverable and manageable standards for resolving" the issue, (3) "the impossibility of deciding [the issue] without an initial policy determination of a kind clearly for nonjudicial discretion, " (4) "the impossibility of a court's undertaking independent resolution [of the issue] without expressing lack of the respect due coordinate branches of government, " (5) an "unusual need for ...