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 Prerogatives. The plaintiffs have appealed to the Fourth Circuit in Richmond, Virginia.