Act (FTCA). The firm argued that the DBA, a sort of workers’ compensation program for employees of government contractors injured on
the job, doesn’t allow employees to sue their employers for injuries. In
addition, the firm claimed that the FTCA’s combatant activities exception immunizes the government and its contractors from tort claims
arising out of injuries in combat.
In a written opinion filed July 1, 2005, Atlas rejected both of Jones
Day’s arguments. She reasoned that although the DBA normally provides the exclusive remedy for injured employees on a U.S. military
base, it does not apply where, as here, the employees claim the injury
was intentional. In the Fisher case, the plaintiffs attorneys had carefully crafted their claims to allege that KBR knowingly sent them out
as a decoy convoy, intending for them to be assaulted by insurgents.
(They also claim KBR intentionally sent them out needlessly, in order
to charge the government for the unnecessary shipment, since under
its cost-plus contract with the government, KBR made a profit on every dollar it spent.) Therefore, Atlas ruled, the DBA did not bar the
plaintiffs’ claims.
Neither did the FTCA. Although the combatant activities exception
means that the United States itself can’t be sued for injuries arising
out of combatant activities of its military forces, that immunity only extends to private military contractors in a few rare exceptions. None of
those enumerated by Jones Day applied in this case, Atlas ruled. Jones
Day’s subsequent motion for reconsideration was denied.
Nine months after Atlas’s decision, a new team of KBR lawyers
appeared before her. Two McKenna partners, joined by an assistant
U.S. attorney for Houston, and by conference call, a Department of
Defense lawyer, argued that discovery in the case should be halted
THE KBR DOCKET
The Fisher case isn’t the only Iraq-related case filed against KBR. Whistle-blowers, prosecutors, and government auditors have charged the company with substantial waste and fraud in carrying out U.S. government
contracts in Iraq. And several more lawsuits filed by former KBR employees have charged the company with negligence and failure to protect its
employees in a war zone. In all of those, KBR has claimed that its actions
are beyond the reach of the federal court.
Two cases brought in Texas involving KBR employees seriously wounded in convoys (Lane v. KBR and Smith-Idol v. KBR) are consolidated with
the Fisher case for purposes of appeal. Two similar cases, one filed in
Houston and the other in Coumbus, Georgia, were also dismissed on political question grounds and not appealed.
But several more, alleging sexual harassment and rape, are pending.
In one, former KBR employee Jamie Leigh Jones, now 22, claims that
while she was working as an administrative assistant for KBR in Houston,
she was pressured into a sexual relationship with her supervisor. In July
2005 she was transferred to Iraq, where she says she was drugged and
gang-raped by KBR firefighters at the company’s barracks at Camp Hope,
a military base in Baghdad. After she alerted her superiors to the attack,
she claims, she was sequestered in a converted shipping container and
not allowed to leave or call her family. She also says she was told she
would lose her job if she did not stay in Iraq and “get over it.”
KBR is represented in the Jones case by Vinson & Elkins, whose
lawyers would not comment on the claims or the company’s defense. In
its response filed in court, however, KBR says that, as in the Fisher case,
the company is not subject to U.S. federal court jurisdiction. KBR also
claims that Jones is barred from suing the company under her employment contract, which requires that all employment disputes be heard in
private arbitration. —D.E.
until the government had an opportunity to review the documents
and vet the testimony that might be elicited. Atlas agreed to stall the
case temporarily but refused to dismiss it. She made clear her irritation that KBR’s lawyers were attempting this argument almost a year
after the case had been filed.
However, the judge’s view would soon become irrelevant. On May
15, 2006, the case was transferred from Atlas to a newly appointed
federal district court judge, Gray Miller. (According to the court order, this was a random reassignment due to the appointment of a new
judge.) Miller, a former police officer, was a partner at Houston’s Fulbright & Jaworski and a contributor to George W. Bush’s presidential
campaign before being appointed to the federal bench.
The McKenna lawyers saw an opportunity. On June 30 they made
a new motion to dismiss the case, repeating some of Jones Day’s arguments but adding a new twist. This time KBR’s lawyers claimed
that the case should be dismissed under the political question doctrine, a discretionary device that allows the court to avoid deciding
questions it believes are best left to other branches of government.
In their motion, McKenna lawyers claimed that judging military contractors would require judging the military that hired them, and that
the conduct of the military should be judged not by the courts but
by the president and Congress. As Kasanow puts it: “If a lawsuit inevitably would cause the court to have to trespass into an area that’s
reserved exclusively for executive branch discretion, the court must
decline jurisdiction.”
Miller seized on that argument. On September 27, 2006, he dismissed the case, asserting that there would be no way to “try a case set
on a battlefield during wartime without an impermissible intrusion into
powers expressly granted to the executive by the Constitution.”
Ruled Miller: “Sometimes, the law is that the judicial department has no business entertaining the claim of unlawfulness.”
It was a huge victory for
McKenna and KBR. But it was a controversial decision that
some experts think was wrong on the law. Although consistent
with some recent federal opinions in other Texas cases involving KBR, it clashes with several others around the country. The
plaintiffs have appealed.
Miller’s decision exhibits “very weak reasoning,” says
Laura Dickinson, a professor at the University of Connecticut School of Law and an expert on the law governing private
military contractors. “Obviously there are certain matters that
are nonjusticiable, but simply because an act took place in a
contingency operation doesn’t mean the court can’t decide a
claim,” she says. “That alone should not be the basis for assertion of the political question doctrine.”
In McMahon v. Presidential Airways, a case brought by
the survivors of U.S. soldiers killed in a plane owned by a
subsidiary of the private military firm Blackwater USA, the
Eleventh Circuit in October rejected a similar political question doctrine argument. The appellate court decided that the
doctrine would only apply if the case required the court to directly examine a decision by the military. Even though Presidential Airways was operating in Afghanistan for the military
and transporting U.S. soldiers, the court ruled that the company might have had enough control of its own operations
that judging its actions would not require passing judgment on
military decision making.
That’s exactly the plaintiffs’ argument in the KBR case.
“None of it is a political question,” Allen says.
But Crowell & Moring partner David Hammond disagrees.
He represents government contractors and heads the General
Counsels Committee for the International Peace Operations
Association, an industry group for private security firms.
