Defense Industry Groups Urge Federal Appeals Court To Respect U.S. Military’s Wartime Judgments

November 21, 2017

Two defense industry trade associations – the Professional Services Council and the National Defense Industrial Association – have filed an amicus curiae brief urging the U.S. Court of Appeals for the Fourth Circuit to affirm a federal trial court’s dismissal of the “Burn Pit” battlefield contractor litigation.  The amicus brief argues that where, as in the Burn Pit  litigation, private-party personal injury suits  would require a court to second-guess wartime military judgments, important national defense interests are undermined — especially the U.S. military’s ability to attract and manage contractors that provide critical war-zone support services.  Capital Appellate Advocacy founder Lawrence S. Ebner  was the brief’s principal author.   He was assisted by co-counsel Lisa Norrett Himes  of Rogers Joseph O’Donnell and  Alan L. Chvotkin, PSC’s Executive Vice President and Counsel.

The plaintiffs in the multi-district Burn Pit litigation allege that they have suffered illnesses caused by smoke from open burn pits that the U.S. military directed a war-zone support contractor, Kellogg Brown & Root Services, Inc. (“KBR”), to construct and operate at forward operating bases in Iraq and Afghanistan between 2003 and 2010. Following extensive jurisdictional discovery, a Maryland federal district court held last summer that the litigation against KBR is barred by political question (i.e., separation of powers) and implied preemption principles.  See Judge’s Dismissal of Toxic-Tort Multidistrict Litigation Against War-Zone Contractor Respects US Military PrerogativesThe plaintiffs have appealed to the Fourth Circuit in Richmond, Virginia.

To read the industry amicus brief, please click the DOWNLOAD button above.  Here is the Professional Services Council press release about the brief.