On June 20, 2018, the U.S. Court of Appeals for the Fourth Circuit decided the case of In re: KBR, Inc. Burn Pit Litigation, affirming the ruling of the U.S. District Court for the District of Maryland that the “political question” doctrine bars the plaintiff servicemembers’ personal injury lawsuits against Kellogg Brown & Root and Halliburton (KBR), government contractors providing environmental services to the U.S. military in Iraq and Afghanistan.

“The Constitution entrusts the President and Congress, not the courts, with the power to resolve political questions.”

Plaintiffs alleged that their injuries were caused by exposure to toxic smoke emanating from KBR-operated burn pits and impure drinking water. It was alleged that KBR “failed to design, manage and operate the open air burn pits safely and to treat and monitor water quality.”

Based on its review of an extensive record, the District Court determined that the military exercised complete and comprehensive control over these operations of KBR and Halliburton. The Court of Appeals agreed: “we conclude that the military’s control over KBR was plenary and actual.” In view of this, the District Court held that this control over these KBR operations, in particular the decision to use burn pits instead of incinerators and recycling facilities, reflected “a military judgment in the dangerous, wartime contingency environment.” Consequently, both the District Court and Court of Appeals held that the political question doctrine applied here; otherwise the courts were being asked to scrutinize military decisions for which the courts “lack constitutional warrant and judicial competence.”

The Court of Appeals also decided that it would vacate the District Court’s decision that the Federal Tort Claims Act (FTCA) preempts the servicemembers’ claims; however, its resolution of the political question issues makes any discussion of the FTCA unnecessary.