Alan Metzgar v. KBR, Inc.

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-1960

In re: KBR, INC., Burn Pit Litigation.

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ALAN METZGAR, RWT 09-744; PAUL PARKER, and all others similarly situated: RWT 09-744; JOSHUA ELLER, RWT 09-2748; JOANNE OCHS, RWT 09-2747; MELISSA OCHS, RWT 09-2747; JAMES MORGAN, RWT 09-2747; DAVID NEWTON, RWT 09-2747; CHRIS BOGGIANO, RWT 09-2747; EARL CHAVIS, RWT 09-2747; BENNY LYLE REYNOLDS, RWT 09-2747; ALBERT PAUL BITTEL, III, RWT 09-2745; MICHAEL DOUGLAS MOORE, and all others similarly situated: RWT 09-2742; DAVID U. LACKEY, RWT 09-2743; RANDALL L. ROBINSON, and all others similarly situated: RWT 09-2743; MICHAEL AUW, and all others similarly situated: RWT 09-2741; CORY CASALEGNO, and all others similarly situated: RWT 09-2741; RICHARD RONALD GUILMETTE, and all others similarly situated: RWT 09-2739; WILLIAM G. BRISTER, JR., and all others similarly situated: RWT 09-2740; HENRY J. O’NEILL, and all others similarly situated: RWT 09-2740; SMSGT GLEN S. MASSMAN, and all others similarly situated: RWT 09-2750; SSGT WENDY L. MCBREAIRTY, and all others similarly situated: RWT 09-2750; DEAN GUY OLSON, and all others similarly situated: RWT 09-2744; ROBERT CAIN, RWT 09-2749; CRAIG HENRY, RWT 09-2749; FRANCIS JAEGER, RWT 09-2749; DAVID MCMENOMY, RWT 09-2749; MARK POSZ, RWT 09- 2749; EL KEVIN SAR, and all others similarly situated: RWT 09-2749; MAURICE CALLUE, RWT 09-2980; DENNIS WAYNE BRIGGS, RWT 09- 2980; EDWARD LEE BUQUO, RWT 09-2980; WAYNE E. FABOZZI, RWT 09-2980; SHARLENE S. JAGGERNAUTH, RWT 09-2980; FLOYD JAMES JOHNSON, SR., RWT 09-2980; TAMRA C. JOHNSON, RWT 09-2980; RICHARD LEE KEITH, RWT 09-2980; DANIEL SANTIAGO MORALES, RWT 09-2980; PHILLIP MCQUILLAN, RWT 09-2980; ILDEBBRANDO PEREZ, RWT 09-2980; LUIGI ANTONIO PROVENZA, RWT 09-2980; RUTH ANN REECE, RWT 09-2980; EDUARDO SAAVEDRA, SR., RWT 09-2980; JILL R. WILKINS, personal representative of Kevin E. Wilkins, deceased: RWT 09-2980; MICHAEL DONNELL WILLIAMS, RWT 09-2980; JERMAINE LYNELL WRIGHT, and all others similarly situated: RWT 09-2980; BENJAMIN

BOEKE, RWT 09-2984; CRAIG KERVIN, RWT 09-2984; BARRY ZABIELINSKI, RWT 09-2984; PABLO BERCHINI, RWT 09-2979; BRIAN P. ROBINSON, RWT 09-2979; DAVID GREEN, RWT 09-2985; NICK DANIEL HEISLER, RWT 09-2985; JOHN DOE, sued as John and Jane Does 1-1000 and all others similarly situated: RWT 09-2985; JOHN A. WESTER, JR., RWT 09- 2987; EDWARD ADAMS, personally and as a class representative for all others similarly situated: RWT 09-2981; KENNETH BALDWIN, personally and as a class representative for all others similarly situated: RWT 09-2981; DONNA WU, personally and as a class representative for all others similarly situated: RWT 09- 2981; JOHN DOES 1-1000, RWT 09-2981; JANE DOES 1-1000, RWT 09-2981; KENNETH PAUL ROBBINS, RWT 09-2983; BRIAN BLUMLINE, RWT 09- 2983; ROBERT BIDINGER, RWT 09-2983; UNKNOWN PARTIES, named as “all others similarly situated”: RWT 09-2983; DERROL A. TURNER, RWT 09- 2986; VINCENT C. MOSELEY, RWT 09-2986; ALEX HARLEY, and all others similarly situated: RWT 09-2986; FRED ROBERT ATKINSON, JR., RWT 09- 2746; ROBYN SACHS, personal representative of Christopher Sachs, deceased: RWT 09-2746; JENNIFER MONTIJO, RWT 09-2746; STEPHEN FLOWERS, and all others similarly situated: RWT 09-2746; WALLACE MCNABB, and all others similarly situated: RWT 09-2982; PATRICK CASSIDY, and all others similarly situated: RWT 09-3309; WILLIAM BARRY DUTTON, and all others similarly situated: RWT 09-3309; CHRISTOPHER MICHAEL KOZEL, and all others similarly situated: RWT 09-3309; CHARLES HICKS, RWT 09-3305; SEAN ALEXANDER STOUGH, and all others similarly situated: RWT 09-3305; BILL JACK CARLISLE, JR., and all others similarly situated: RWT 09-3299; ANTHONY EDWARD ROLES, and all others similarly situated: RWT 09-3299; DANNY LAPIERRE, Individually and all others similarly situated: RWT 09- 2083; ANTHONY RAY JOHNSON, RWT 09-3313; DAVID MICHAEL ROHMFELD, RWT 09-3313; RICHARD MCANDREW, RWT 09-3310; LORENZO PEREZ, and all others similarly situated: RWT 09-3310; THOMAS KELLECK, RWT 09-3304; DAN BOWLDS, RWT 09-3304; TONY ALLEN GOUCKENOUR, RWT 09-3304; JOHN WILLIAM JACKSON, RWT 09-3304; JOHN PETE TROOST, RWT 09-3304; DEBORAH ANN WHEELOCK, and all others similarly situated: RWT 09-3304; GEORGE LUNDY, RWT 09-3303; EUNICE RAMIREZ, and all others similarly situated: RWT 09-3301; MARCOS BARRANCO, RWT 09-3300; JOEL LUGO, RWT 09-3300; SHAWN THOMAS SHERIDAN, RWT 09-3300; JAYSON WILLIAMS, and all others similarly situated: RWT 09-3300; HEINZ ALEX DISCH, RWT 09-3312; JAMES MCCOLLEM, RWT 09-3312; TRAVIS FIDELL PUGH, RWT 09-3312; THOMAS OLSON, RWT 09-3315; BRIAN PAULUS, RWT 09-3315; PAUL MICHAEL WIATR, and all others similarly situated: RWT 09-3315; LEE WARREN JELLISON, JR., RWT 09-3302; JESSEY JOSEPH PHILIP BACA, RWT 09-3311; DANIEL TIJERNIA, and all others similarly situated: RWT 09- 3311; JOSHUA DAVID BEAVERS, RWT 09-3314; JOHN AND JANE DOES 1-

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1000, RWT 09-3308; MATTHEW JOEL FIELDS, RWT 09-3314; MICHAEL FOTH, and all others similarly situated: RWT 09-3316; STEVEN E. GARDNER, RWT 09-3314; KENNETH HARRIS, RWT 09-3308; STEPHEN R. JONES, RWT 09-3314; BRETT ANTHONY MAZZARA, and all others similarly situated: RWT 09-3316; KEVIN SCOTT TEWES, RWT 09-3314; KATHY VINES, RWT 09-3308; ANTHONY JEROME WILLIAMS, RWT 09-3308; HANS NICOLAS YU, RWT 09-3314; JEFFREY MORGAN COX, and all others similarly situated: RWT 09-3306; JAMES WARREN GARLAND, and all others similarly situated: RWT 09-3306; PETER BLUMER, and all others similarly situated: RWT 10-389; SCOTT ANDREW CHAMBERLAIN, and all others similarly situated: RWT 10- 389; TIMOTHY E. DIMON, and all others similarly situated: RWT 10-389; WILLIAM PHILIP KRAWCZYK, SR., and all others similarly situated: RWT 10- 389; SEAN JOHNSON, and all others similarly situated: RWT 10-390; DAVID ROUNDS, Personal representative of Andrew Ray Rounds, deceased: RWT 10- 388; LISA ROUNDS, Personal representative of Andrew Ray Rounds, deceased: RWT 10-388; ALBERT JOHNSON, JR., RWT 10-815; GENE BISHOP, RWT 10-814; PATRICK BISHOP, RWT 10-814; SHERRY BISHOP, Individually and as representative of the estate of Kirk A. Bishop: RWT 10-814; GENE MATSON; GENE LEONARD MATSON; TIMOTHY J. WATSON, RWT 10-1160; DAVID JOBES, RWT 10-836; BETH OSHIRO BURTON, RWT 10-3360; MICHELLE BROWN, RWT 11-336; JONATHAN LYNN, RWT 11-336; ANDREW MASON, RWT 11-336; CHARLES KINNEY, RWT 11-337; MICHAEL MCCLAIN, RWT 11-338; BASIL SALEM, RWT 11-1092; JUSTIN GONZALES, RWT 11-2634; MATTHEW GUTHERY, RWT 11-2635; CHRISTOPHER LIPPARD, RWT 11-2635; DAVID PARR, RWT 11-3292; JOHN FINBAR MONAHAN, RWT 11-3542; AMANDA BRANNON, RWT 12- 3070; L. CHANDLER BRANNON, RWT 12-3070; ELIYAHU ARSHADNIA, RWT 13-1023, individually and on behalf of the marital community with Simcha Arshadnia; SIMCHA ARSHADNIA, RWT 13-1023, individually and on behalf of the marital community with Eliyahu Arshadnia; WILLIAM SIMMONS, RWT 13- 1023, an individual; DAWN LUCIA, RWT 13-1023, individually and on behalf of the Estate of Joseph Lucia, deceased; DANIEL MEYER, RWT 13-1023, individually and on behalf of the marital community with Harmonie Meyer; HARMONIE MEYER, RWT 13-1023, individually and on behalf of the marital community with Daniel Meyer; JOSE BURGOS, RWT 13-1023, individually and on behalf of the marital community with Bethany Burgos; BETHANY BURGOS, RWT 13-1023, individually and on behalf of the marital community with Jose Burgos; STEPHEN HOPPER, RWT 13-1023, an individual; STEVEN C. SNEE, RWT 15-1568; VINCENT MOLINO, RWT 15-1568; LARRY ENGLE, RWT 15- 1568; RAYMOND CRUZ, RWT 15-1568; ANTONIO CLARK, RWT 15-1568; JAMES KNOUSE, JR., RWT 15-1568; LESLIE SCOTT, RWT 15-1568; SCOTT HURT, RWT 15-1568; 176-459 JAMES JACKSON, RWT 15-1568; JEFFREY DURHAM, RWT 15-1568; WILLIAM AUSTIN DANIEL, RWT 15-1568,

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deceased; JOSEPH COLLINS, RWT 15-1568; RACHEL GUTIERREZ, RWT 15- 1568; BRANDON SHOEMAKE, RWT 15-1568; STACIE MOSER, RWT 15- 1568; ALBERT ROBERTS, RWT 15-1568; JEFFREY WILKINS, RWT 15-1568; WILLIAM EATON, RWT 15-1568; TODD GRIMES, RWT 15-1568; GARY MORRIS, RWT 15-1568; MICHAEL GENAW, RWT 15-1568; JOSHUA KEPPLE, RWT 15-1568; WILLIS ROWE; JUSTIN ACOSTA, RWT 15-3836; TRAVIS ADAMS, RWT 15-3836; LEON J. ALEXANDER, RWT 15-3836; MICHAEL DEVINCENT AMICY, RWT 15-3836; THOMAS ANDERSEN, RWT 15-3836; PATTI J. ANDERSON, RWT 15-3836; PHILLIP A. ANDERSON, RWT 15-3836; DOMINICK THOMAS ANDREWS, RWT 15- 3836; JULIO A. APODACA, RWT 15-3836; ROSE MARIE APPLEWHITE, RWT 15-3836; FRANCISCO ARAQUE, RWT 15-3836; ANTHONY L. ARRINGTON, RWT 15-3836; TRACY L. ASHER, RWT 15-3836; MATTHEW K. ASHWORTH, RWT 15-3836; RYAN L. ATTAR, RWT 15-3836; DUSTIN JEFFREY AUER, RWT 15-3836; EVERETTE D. AVERY, JR., RWT 15-3836; JOHN ALAN BACON, RWT 15-3836; SCOTT D. BAILEY, RWT 15-3836; JESSE BAKER, RWT 15-3836; LARRY BAKER, RWT 15-3836; STEVEN LEROY BAKKEN, RWT 15-3836; MICHAEL DANIEL BANKS, RWT 15- 3836; ANGELA VANETTE BARNES, RWT 15-3836; CHARLES J. BARNES, RWT 15-3836; JULIE BARON-MANNIX, RWT 15-3836; TRAVIS M. BASSETT, RWT 15-3836; JAMES R. BATES, RWT 15-3836; JERICHO N. BEAUCHAMP, RWT 15-3836; CRAIG BELANGER, RWT 15-3836; JUDY- ANN BELLEFLEUR, RWT 15-3836; REGINALD J. BELTON, RWT 15-3836; BRANDI L. BENSON, RWT 15-3836; THEODORE J. BILL, RWT 15-3836; JASON R. BILLS, RWT 15-3836; JOHNNIE F. BINES, RWT 15-3836; DENNIS A. BLANCHARD, RWT 15-3836; CLINT ALLEN BLANKENSHIP, RWT 15- 3836; ANDREW MICHAEL BOOTH, RWT 15-3836; BRIAN K. BOWER, RWT 15-3836; ANDREW DOULGAS BOWERS, SR., RWT 15-3836; WILLIE ANTONIO BOYKIN, SR., RWT 15-3836; FRANK EARL BRAXTON, RWT 15- 3836; ALAN K. BRIDGEWATER, RWT 15-3836; BRANDY E. BROADBENT, RWT 15-3836; RACHAEL BROWN, RWT 15-3836; DAVID F. BRYDEN, RWT 15-3836; DENNIS H. BUDD, RWT 15-3836; ERIK J. BURCH, RWT 15-3836; KENON L. BURNS, RWT 15-3836; THOMAS W. BURNS, RWT 15-3836; TEE JAY BURR, RWT 15-3836; ROBERT P. BUSSE, RWT 15-3836; MICHAEL L. CALDWELL, RWT 15-3836; WILLIAM G. CARDWELL, RWT 15-3836; JOHN ERNEST CARLSON, RWT 15-3836; JASON L. CARMEN, RWT 15-3836; MICHAEL W. CARR, RWT 15-3836; ROBIN A. CARR, RWT 15-3836; ANDREA M. CASTON, RWT 15-3836; FREDDIE E. CAVAZOS, JR., RWT 15- 3836; RICHARD D. CELIA, RWT 15-3836; BLAIN L. CHAMBERS, RWT 15- 3836; BRUCE R. CHAPLIN, RWT 15-3836; DANIEL C. CHAVEZ, SR., RWT 15-3836; LEONARD RAY CHEEK, RWT 15-3836; GWEN COLLEEN CHIARAMONTE, RWT 15-3836; BLAINE S. CHILD, RWT 15-3836; KENNETH ROGER CHRISTENSEN, SR., RWT 15-3836; SCOTT ALLAN

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CHRISTIE, RWT 15-3836; MARC J. CHUBBUCK, SR., RWT 15-3836; RICHARD CHARLES CHUMBLEY, JR., RWT 15-3836; JEFFREY S. CHURCH, RWT 15-3836; DERRICK D. CLARK, RWT 15-3836; RICHARD MICHAEL CLEMES, RWT 15-3836; RYAN V. COLLAMORE, RWT 15-3836; CONNIE G. CONLEY, RWT 15-3836; ANDREW E. COUSSENS, RWT 15- 3836; KATHLEEN S. COY, RWT 15-3836; CHARLES DONALD CRABBE, JR., RWT 15-3836; MICHAEL A. CRANFILL, RWT 15-3836; PERRY A. CROSS, JR., RWT 15-3836; CRAIG J. DANIEL, RWT 15-3836; ROWENA L. DARVIN, RWT 15-3836; JESSE N. DAVIDSON, RWT 15-3836; BRITTANY J. DAVIS, RWT 15-3836; DANIEL LEE DAVIS, RWT 15-3836; MALONE W. DAVIS, RWT 15-3836; RYAN MARTIN DELONG, RWT 15-3836; DAVID BRIAN DELUCA, RWT 15-3836; MICHAEL S. DELBORRELL, RWT 15-3836; JOSEPH EDWARD DEVALL, RWT 15-3836; SHAWN R. DEVANEY, RWT 15-3836; FREDERICK A. DEVONSHIRE, II, RWT 15-3836; MICKY DOTO, RWT 15-3836; JENNIFER L. DOWNES, RWT 15-3836; BRADLEY DOYLE, RWT 15-3836; ROBERT A. DREYFUS, RWT 15-3836; NICHOLAS R. DUDEK, JR., RWT 15-3836; JOHN G. DUERR, RWT 15-3836; BONNIE DUNLOP, RWT 15-3836; BRIAN EARL EASLEY, RWT 15-3836; MICHAEL S. EDDY, RWT 15-3836; THOMAS S. EDWARDS, RWT 15-3836; RONALD EYRL EISMAN, RWT 15-3836; ROBERT CHRISTOPHER ELESKY, RWT 15- 3836; JAMES COREY ELLIS, RWT 15-3836; EARNEST J. ELLISON, RWT 15-3836; SCOTT A. ELSENHEIMER, RWT 15-3836; AMANDA J. ENGEN, RWT 15-3836; GARY LEE ENNIS, RWT 15-3836; TREVOR G. ENNIS, RWT 15-3836; CASSANDRA D. EUSERY, RWT 15-3836; TERRY D. EVANS, RWT 15-3836; JUSTIN M. FAIRCLOTH, RWT 15-3836; MICHAEL LEONARD FARLEY, RWT 15-3836; MICHAEL FARMER, RWT 15-3836; JASON D. FARQUHARSON, RWT 15-3836; KENLEY FEAZELL, RWT 15-3836; TIMOTHY DONALD FENDLEY, RWT 15-3836; EDWARD LEO FERGUSON, RWT 15-3836; JOHN DAVID FIELDER, RWT 15-3836; MICHAEL RAY FIELDS, RWT 15-3836; CRAIG D. FILLINGANE, RWT 15-3836; JAMES AUSTIN FISHER, RWT 15-3836; REGINALD FLEMING, JR., RWT 15-3836; DALE FORD, RWT 15-3836; RONALD LEE FRISBY, RWT 15-3836; BRAD L. FRUHLING, RWT 15-3836; JOHN R. FUDALA, RWT 15-3836; TOMMY L. FULLEN, RWT 15-3836; CARRIE C. GALLAGHER, RWT 15-3836; TOM LEE GALLAGHER, RWT 15-3836; ERIC BRADLEY GANN, RWT 15-3836; KAREN M. GHARST, RWT 15-3836, Formerly Gabriele; KARL MALINSKI GIBBS, RWT 15-3836; MICHAEL P. GIBSON, RWT 15-3836; MITCHELL P. GILL, RWT 15-3836; AUDREY DEMON GLENN, RWT 15-3836; SANDI CHRISTINE GOLDEN-VEST, RWT 15-3836; RIGO A. GONZALEZ, RWT 15- 3836; LEONARD GOODSON, III, RWT 15-3836; MICHAEL A. GRILEY, JR., RWT 15-3836; MICHAEL A. GROCHOWSKI, RWT 15-3836; MICHAEL W. HAFKE, RWT 15-3836; JARROD C. HALL, RWT 15-3836; JAMAR HAM, RWT 15-3836; BRYAN HAMILTON, RWT 15-3836; RICHARD P.

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HAMILTON, RWT 15-3836; JIMMY LYNN HAMPTON, RWT 15-3836; DAVID F. HAPPLE, RWT 15-3836; RICHARD ALAN HARDISON, RWT 15- 3836; MIKEL HARPER, RWT 15-3836; JASON PAUL HATFIELD, RWT 15- 3836; LARRY HAYNES, RWT 15-3836; WILLIAM JAMES HEARD, RWT 15- 3836; JOHN L. HENDERSON, RWT 15-3836; WILLIAM MYRON HENDERSON, RWT 15-3836; CHRISTOPHER S. HENRIKSON, RWT 15- 3836; ALLISON MARIKO HILL, RWT 15-3836; MARK A. HILL, RWT 15- 3836; RICHARD CARL HOGAN, JR., RWT 15-3836; CLYDE RICHARD HOLDER, RWT 15-3836; STEVEN WAYNE HOLLEY, RWT 15-3836; MARCO ALEXANDER HORSEWOOD, RWT 15-3836; JAMES HERSHEL HUDSON, III, RWT 15-3836; AUNDREA M. HUNT, RWT 15-3836; MATTHEW CALVIN HURT, JR., RWT 15-3836; OZANE JACKSON, RWT 15- 3836; WANDA N. JACKSON, RWT 15-3836; WADE JACOBSON, RWT 15- 3836; ERIC JAEGER, RWT 15-3836; LAWRENCE J. JANKOWSKI, RWT 15- 3836; DANIEL MARTIN JASONI, RWT 15-3836; RALPH BENJAMEN JENKINS, RWT 15-3836; ANTERIAN D. JOHNSON, RWT 15-3836; MICHELLE A. JOHNSON, RWT 15-3836; BRANDON CHRISTOPHER JOHNSTON, RWT 15-3836; DAVID ALLEN JONES, II, RWT 15-3836; JULIAN K. JONES, RWT 15-3836; PAUL G. JONES, RWT 15-3836; THOMAS K. JONES, RWT 15-3836; PAUL ANTHONY JONES, RWT 15-3836; SAMI JUMA, RWT 15-3836; STANLEY K. KAINA, JR., RWT 15-3836; KELLY JEAN KARL-FORST, RWT 15-3836; DANIEL R. KEARNEY, RWT 15-3836; BRYAN KEITH KEESE, RWT 15-3836; EDWIN KEITH, SR., RWT 15-3836, (PR); STEPHEN RANDALL KEITH, RWT 15-3836; JAMES ERIC KELLEY, RWT 15-3836; GEORGE KEYS, JR., RWT 15-3836; MICHAEL J. KIDDER, RWT 15-3836; DOULGAS HAMILTON KINARD, JR., RWT 15-3836; JAMES E. KIRK, RWT 15-3836; DAVID W. KIRKLAND, RWT 15-3836; GERALD KENNETH KREIN, RWT 15-3836; ROBIN KRUSKOL, RWT 15-3836; MICHAEL D. KUSEK, RWT 15-3836; SEAN M. LADD, RWT 15-3836; PHILIP LAM, RWT 15-3836; CLIBURN LANE, JR., RWT 15-3836; PIERRE O'DELL LARKIN, RWT 15-3836; BRUCE G. LAUREIRO, RWT 15-3836; THADDEUS R. LAWRENCE, SR., RWT 15-3836; MICHAEL A. LEBLANC, RWT 15-3836; CHRISTINA L. LEE, RWT 15-3836; MICHAEL CHARLES LEE, RWT 15- 3836; ROBERT LIPPOLIS, RWT 15-3836; BRIAN KEITH LLOYD, RWT 15- 3836; DEMPSEY LOVETT LOGUE, SR., RWT 15-3836; FRANKLIN GERALD LOWE, RWT 15-3836; FRANKLIN GERALD LOWE, RWT 15-3836; MICHAEL LEE LOWE, RWT 15-3836; CHARLES J. LOWERY, RWT 15-3836; JUAN LUGO, RWT 15-3836; MICHAEL L. MADIGAN, RWT 15-3836; DANIEL MAESTAS, RWT 15-3836; WILLIAM MAGEE, RWT 15-3836; JASON B. MARTIN, RWT 15-3836; DONALD EDMUNDO MARTINEZ, RWT 15-3836; OMOWUNMI MARTINS, RWT 15-3836; JON HARDING MASON, RWT 15-3836; RHONDA SUE MATCHETT, RWT 15-3836; MICHAEL LEE MAYNARD, RWT 15-3836; ALAN AUSTIN MAYS, RWT 15-3836;

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FREDERICK D. MCCOLLUM, RWT 15-3836; JOHN ALBERT MCDONALD, RWT 15-3836; CORY ORLANDO MCGILL, RWT 15-3836; RAHMAN A. MCKINNON, RWT 15-3836; MURRILL L. MCLEAN, RWT 15-3836; ERIC B. MCLENDON, RWT 15-3836; SHAWN K. MCLEOD, RWT 15-3836; DENNIS E. MCMULLEN, RWT 15-3836; JONATHAN MEDINA, RWT 15-3836; RODNEY W. MEECE, RWT 15-3836; NATHAN T. MEIDL, RWT 15-3836; ALEXANDER MENKES, RWT 15-3836; KEITH R. MENZER, RWT 15-3836; JEFFREY A. MEO, RWT 15-3836; MARY A. MICKENS, RWT 15-3836, (Currently Glass, Mary A.); JAMES CUTHBERT MIDGETT, RWT 15-3836; AMANDA G. MILLER, RWT 15-3836; JAMES EDWARD MILLER, RWT 15- 3836; LORI LYNN MITCHELL, RWT 15-3836; WILLIE J. MITCHELL, RWT 15-3836; PATRICK C. MONDRAGON, RWT 15-3836; DAVID A. MONTGOMERY, RWT 15-3836; BRIAN DAVID MURPHY, RWT 15-3836; TIMOTHY M. MURRAY, RWT 15-3836; FAYIZ NALU, RWT 15-3836; CHRISTOPHER LYNN NANNEY, RWT 15-3836; ANDREA MICHELE NEUTZLING, RWT 15-3836; RICHARD J. NICHOLLS, RWT 15-3836; SAMUEL NIEVES, RWT 15-3836; HANNA P. NISSAN, RWT 15-3836; MICHAEL A. NORTHUP, RWT 15-3836; LAURA J. NOWLIN, RWT 15-3836; CHRISTOPHER SEAN NYBERG, RWT 15-3836; PATRICK MICHAEL O'CONNELL, RWT 15-3836; BRENDA M. O'NEAL, RWT 15-3836; ANTHONY BRETT OGDEN, RWT 15-3836; THOMAS K. OLESON, RWT 15- 3836; THETA A. OLSON, RWT 15-3836; CARL ORLANDO, RWT 15-3836; CHRISTINE OSORIO, RWT 15-3836; LEWIS PALMER, RWT 15-3836; TIMOTHY STEVEN PARKE, RWT 15-3836; GREGORY D. PARKER, RWT 15-3836; ROBERT WILLIAM PAXTON, RWT 15-3836; MICHELE A. PEARCE, RWT 15-3836; AUDREY S. PERRY, RWT 15-3836; JOSHUA NATHAN PERUSSE, RWT 15-3836; DEBORA J. PFAFF, RWT 15-3836; JODY LEE PIERCY, RWT 15-3836; GREGORY J. PIETZ, RWT 15-3836; JAMES POLLOCK, RWT 15-3836; TAI PORTER, RWT 15-3836; JAMES PRESTON POTTER, JR., RWT 15-3836; LAUREN CAROL PRICE, RWT 15-3836; CEDRIC EUGENE PRICE, SR., RWT 15-3836; CALVIN PRIEST, RWT 15- 3836; TANYA QUINCY, RWT 15-3836; VARITA V. QUINCY, RWT 15-3836; ROBERT F. RAMOS, JR., RWT 15-3836; GEORGE RICHARD RAPCIEWICZ, JR., RWT 15-3836; RYAN C. RASMUSSEN, RWT 15-3836; CHAD ROBERT READ, RWT 15-3836; TOMMY R. REDDICK, RWT 15-3836; BRUCE L. REGES, RWT 15-3836; DANIEL R. REYES, RWT 15-3836; MILTON M. REYNOLDS, RWT 15-3836; RICHARD D. RICE, RWT 15-3836; DANIEL EDWARD RICE, JR., RWT 15-3836; STEVEN S. RICHARDSON, RWT 15- 3836; PAUL A. RICHMOND, RWT 15-3836; CHARLES RAYMOND RIIPPI, RWT 15-3836; LEONARD RITUMS, RWT 15-3836; VICTOR M. RIVERA, RWT 15-3836; WILLIAM O. ROARK, III, RWT 15-3836; JAMES ROBIN, RWT 15-3836; DANIEL M. ROBSHAW, RWT 15-3836; WAYNE RODRIGUEZ, RWT 15-3836; JOSE C. ROQUE, RWT 15-3836; ERNEST

8

RICHARD ROTH, RWT 15-3836; CARTER CHARLES RUFF, RWT 15-3836; TERRY SALAZAR, RWT 15-3836; JAMES ROBERT SANDEFUR, RWT 15- 3836; JOHNNIE C. SANDERS, JR., RWT 15-3836; CARLOS J. MARTIR SANDOVAL, RWT 15-3836; JEREMEN SANDOVAL, RWT 15-3836; HOBART P. SAUNDERS, RWT 15-3836; DANIEL B. SCHULTZ, RWT 15- 3836; ROLAND DAVID SCHULZ, RWT 15-3836; ROLAND PERRY SHARP, RWT 15-3836; CHRISTOPHER R. SIMMONS, RWT 15-3836; MAREK M. SIPKO, RWT 15-3836; GREGORY C. SKYLES, RWT 15-3836; HOWARD LEON SLADE, RWT 15-3836; DAMIAN L. SMITH, RWT 15-3836; DAVID JOHN SMITH, RWT 15-3836; JASON WILLIAM SMITH, RWT 15-3836; KRYSTE SWANZETTA SMITH, RWT 15-3836; RONALD LAYNE SMITH, RWT 15-3836; TRACY LEMAR SMITH, RWT 15-3836; AZARIAH SMITH, JR., RWT 15-3836; FRANKLIN O. SNOW, RWT 15-3836; MICHAEL L. SONGY, RWT 15-3836; KRISTIN SOUTHWELL, RWT 15-3836, formerly Otterstetter; SUZANNE M. SPEIGHT, RWT 15-3836; DAVID P. STAFFA, RWT 15-3836; NAPOLEAN L. STAFFORD, RWT 15-3836; MICHAEL CHRISTOPHER STANCO, RWT 15-3836; EDWIN STEELE, RWT 15-3836; BRYAN L. STEVENS, RWT 15-3836; ANTHONY K. STEWARD, RWT 15- 3836; SCOTT H. STRADLEY, RWT 15-3836; SHAWN E. STROUT, RWT 15- 3836; CARL THOMAS SULLIVAN, RWT 15-3836; NEAL MARK SUTHERLAND, RWT 15-3836; DAVID M. SWAN, RWT 15-3836; DAVID B. SWANEY, RWT 15-3836; AUBREY DANYELLE TAPLEY, RWT 15-3836; MILAN B. THAKKAR, RWT 15-3836; TROY THOMAS, RWT 15-3836; CHRISTOPHER T. THORNHILL, RWT 15-3836; TYRONE ANTHONY TIMMS, RWT 15-3836; ANTHONY TRINIDAD, RWT 15-3836; MICHAEL ADAM TUMLINSON, RWT 15-3836; RICKY L. TURNER, RWT 15-3836; NATHAN P. TURNOCK, RWT 15-3836; EDWIN TODD TURPIN, RWT 15- 3836; ERIK D. UPHAM, RWT 15-3836; STEPHENY GUPTON, RWT 15-3836, (PR); PAUL R. VADNEY, RWT 15-3836; DANIEL E. VALENTINE, RWT 15- 3836; SIMON ALLEN WADE, RWT 15-3836; ROBERT WAGENAAR, RWT 15-3836; RICKEY TREYMANE WAITERS, RWT 15-3836; ERVIN L. WALKER, RWT 15-3836; TEDDRIC O'NEAL WALKER, RWT 15-3836; ALBERTO JOSEPH WALRATH, RWT 15-3836; JULIO PIPINO WALTON, RWT 15-3836; GORDON ALLEN WARD, RWT 15-3836; ERIC G. WATERS, SR., RWT 15-3836; TIMOTHY J. WATSON, RWT 15-3836; GEORGE L. WATSON, III, RWT 15-3836; EDWARD B. WEIBL, RWT 15-3836; KOLE WELSH, RWT 15-3836; WILLIAM WESTLEY WESTBURG, JR., RWT 15- 3836; DAVID B. WHALING, RWT 15-3836; JACOB WHETSTONE, RWT 15- 3836; KATRINA LEANN WHITE, RWT 15-3836, Formerly Hightower; WILLIAM EMMETT WHITE, RWT 15-3836; ARTHUR WHITESIDE, RWT 15-3836; CLARENCE WILLIAM WICKHAM, RWT 15-3836; BELINDA M. WILLIAMS, RWT 15-3836; ROBERT L. WILLIAMS; TONY WILLIAMS, RWT 15-3836; ANTOINE LAVANTA WILLIAMS, SR., RWT 15-3836; JIMMY

9

DWAYNE WILLIAMS, RWT 15-3836; KORI L. WILLIS, RWT 15-3836; RENE L. WILSON, RWT 15-3836; RONNAL WOMACK, RWT 15-3836; KEVIN L. WOODRUM, RWT 15-3836; DONALD P. WORRELL, RWT 15-3836; TONY L. WRIGHT, SR., RWT 15-3836; CLIFFORD YARDBROUGH, RWT 15-3836; SHAMERAN YOUKHANA, RWT 15-3836; RAPHAEL A. ZAMORA, RWT 15- 3836; STEVEN C. ZIMMERMAN, RWT 15-3836; MICHAEL E. ZUNDLE, RWT 15-3836; TERRY ENNIS ADKINS, RWT 15-4020; ISSAC AGUILAR, RWT 15-4020; FRANCISCO EMILIO ALEXANDER, JR., RWT 15-4020; MEGHAN ARTEMIS O'CONAN, RWT 15-4020; SEVIM AYBULUT, RWT 15- 4020; LORIN GENE BANNERMAN, RWT 15-4020; GREGORY O. BARNES, RWT 15-4020; ADAM M. BARTON, RWT 15-4020; CLAUDE N. BENSON, RWT 15-4020; BARRY J. BIEGO, RWT 15-4020; EDWARD LEE BRANCH, RWT 15-4020; YUSVF KENYATTA BRANTLEY, SR., RWT 15-4020; ALBERT BRIDGEMAN, RWT 15-4020; CASSANDRA BRUSHWOOD, RWT 15-4020; DESHUNNON CANNADY, RWT 15-4020; CLAUDIA CASTILLO, RWT 15-4020; JAMES RAY CHANDLER, III, RWT 15-4020; RICHARD COREY, RWT 15-4020; STEVE CROWSTON, RWT 15-4020; DAVID B. DA SILVA, SR., RWT 15-4020; CHARLES RAY DANIELS, RWT 15-4020; RYAN DEWITT TAYLOR, RWT 15-4020; WILLIAM J. DEVITO, RWT 15-4020; ENRIQUE DIAZ, RWT 15-4020; FRANK DOMEAUX, RWT 15-4020; MICHAEL R. DRUMMOND, JR., RWT 15-4020; TERRY W. EDGERTON, RWT 15-4020; JEFF EDWARDS, RWT 15-4020; MAURO CESAR FAZ, RWT 15-4020; NATHANIEL L. FLOYD, JR., RWT 15-4020; KENNETH NEIL FRANCIS, RWT 15-4020; RANDY R. GARCIA, RWT 15-4020; DANIEL R. GETTRIDGE, III, RWT 15-4020; MARK THOMAS GILBERT, RWT 15-4020; TAEISHA L.. GLENN, RWT 15-4020; MICHAEL P. GREENBURG, RWT 15- 4020; DARYL GRIFFIN, RWT 15-4020; JONATHAN T. HALL, RWT 15-4020; KENNETH HALL-MAY, RWT 15-4020; MARLIN BRETT HALSTEAD, RWT 15-4020; JASON HAMMAN, RWT 15-4020; ROBERT WAYNE HARDY, JR., RWT 15-4020; THOMAS WILLIAM HEPPLER, RWT 15-4020; AUSTIN L. HILL, RWT 15-4020; ARTHUR L. HILLARD, RWT 15-4020; JONATHAN M. HINCKLEY, RWT 15-4020; ROBERT HOLDING, RWT 15-4020; ZACHARY RYAN HOLMES, RWT 15-4020; MESHELL TEE HORTON, RWT 15-4020; BRADLEY W. HUDSON, RWT 15-4020; WILLIAM M. HUDSON, RWT 15- 4020; TODD LEE HUNKINS, RWT 15-4020; KIMBERLY HUNTER- PREWITT, RWT 15-4020; TIMOTHY P. HURLEY, RWT 15-4020; ROBERT E. JACKSON, JR., RWT 15-4020; CODY CARLTON JENNINGS, RWT 15-4020; JUNUOR AUGUSTUS JOHN, RWT 15-4020; CHARONDA LEVONNE JOHNSON, RWT 15-4020; NATHANIEL JOYNER, III, RWT 15-4020; SCOTT T. KAMM, RWT 15-4020; DOUGLAS L. KELLY, RWT 15-4020; PAUL J. KITTLE, JR., RWT 15-4020; AARON WAYNE KLETZING, RWT 15-4020; MORROW S. KRUM, JR., RWT 15-4020; KENNETH D. KUYKENDALL, RWT 15-4020; ROGER A. LANKFORD, RWT 15-4020; JAMES NOLAN LAW,

10

JR., RWT 15-4020; HOWARD DEWITT LINSON, RWT 15-4020; MICHAEL D. LOPEZ, RWT 15-4020; TODD JASON MARLETT, RWT 15-4020; ELSA E. MARTINEZ, RWT 15-4020; GARY MASON, II, RWT 15-4020; JALMER A. MATEOLOPEZ, RWT 15-4020; DAN PATRICK MCDONOUGH, JR., RWT 15- 4020; FREDRICK MCGEE, RWT 15-4020; JAMES R. MCPHERSON, RWT 15- 4020; CLARENCE L. MCQUEEN, JR., RWT 15-4020; RYAN T. MCQUILLIAN, RWT 15-4020; EDWARD E. MELVIN, JR., RWT 15-4020; SCOTT DAVID MIRODDI, RWT 15-4020; FRANCIS D. MOLLARD, III, RWT 15-4020; ANTHONY MOORE, RWT 15-4020; BRIAN EDWARD MOORE, RWT 15-4020; RONNIE DEWAYNE NANTZ, RWT 15-4020; SEAN M. NELSON, RWT 15-4020; ERIC JEVON NICHOLS, RWT 15-4020; MARKUS LAMONT NORTHINGTON, RWT 15-4020; DAWN O'NEAL, RWT 15-4020; JOSE S. OCHOA, III, RWT 15-4020; JAN ERIK OHRSTROM, RWT 15-4020; LEROY ONTIBEROS, RWT 15-4020; LEROY WAYNE OSBORNE, RWT 15- 4020; PHILLIP W. OSSOWSKI, RWT 15-4020; JONATHAN M. OWENS, RWT 15-4020; MATTHEW A. PADGETT, RWT 15-4020; CHARLES W. PAK, RWT 15-4020; BLU J. PANNHOFF, RWT 15-4020; WESLEY DEWAYNE PARKER, RWT 15-4020; VERNON PATTON, RWT 15-4020; MICHAEL A. PAYNE, RWT 15-4020; ZACHARY A. PAYNE, RWT 15-4020; SCOTT PENNINGTON, RWT 15-4020; MATTHEW E. PERETZ, RWT 15-4020; ALBERT GORDON PLUMLEE, JR., RWT 15-4020; CHARLOTTE RENEE PORCH, RWT 15-4020; AARON M. PRICE, RWT 15-4020; DANIEL RAULT, RWT 15-4020; VALIANT L. REA, RWT 15-4020; CHRISTOPHER R. REED, RWT 15-4020; MATTHEW RIDDLE, RWT 15-4020; DESHAUN A. RINGWOOD, RWT 15- 4020; BRYCE W. RODGERS, RWT 15-4020; WILLIAM ROESSLING, RWT 15-4020; WILLIAM MICHAEL ROSE, JR., RWT 15-4020; JOE SANCHEZ, SR., RWT 15-4020; GABRIEL SCOTT, JR., RWT 15-4020; TIMOTHY E. SHEETS, RWT 15-4020; RALPH CALVIN SIEG, RWT 15-4020; KENNETH FRANCIS SLACH, RWT 15-4020; WILLIAM SMITH, RWT 15-4020; CRAIG S. SOTEBEER, RWT 15-4020; JONATHAN R. SPURKOSKY, RWT 15-4020; JAY D. STARR, RWT 15-4020; JOSH L. STEININGER, RWT 15-4020; TREVOR B. TAYLOR, RWT 15-4020; JEREMY E. TELLEZ, RWT 15-4020; DAVID J. TEXADA, RWT 15-4020; RODNEY J. THURMAN, RWT 15-4020; BRIAN P. TOLBERT, RWT 15-4020; LEROY TORRES, RWT 15-4020; DAVID TRAN, RWT 15-4020; JOSE J. TREJO, RWT 15-4020; ROSARIO TROTSKY, RWT 15-4020; JASON S. VEST, RWT 15-4020; RENEE E. VILLEGAS, RWT 15-4020; ROBERT L. WILLIAMS, JR., RWT 15-4020; RODERICK W. WALKER, RWT 15-4020; THOMAS J. WASHINGTON, JR., RWT 15-4020; MARK H. WELLS, RWT 15-4020; CARL DEAN WILEY, RWT 15-4020; DR. CAROLINE WILLIAMS, RWT 15-4020; JAMES R. YORK, RWT 15-4020; STEVEN J. ZALETEL, SR., RWT 15-4020; ROBERT D. ZIEGELMAIR, RWT 15-4020; LAURA JONES; KEITH JONES; JAMES W. SAVINO, III; JULIA SAVINO; TERRANCE SORDAHL; JONATHAN COOK, RWT 16-2880;

11

DAVID MONTOYA, RWT 15-2404; JEFF BALDUINI, RWT 15-3531; MICHAEL HARTMAN, RWT 15-3531; BRETT NUTTER, RWT 15-3531; WILLIAM VANCE, RWT 15-3531,

Plaintiffs – Appellants,

v.

KBR, INC.; KELLOGG BROWN & ROOT, LLC; HALLIBURTON COMPANY; KELLOGG BROWN & ROOT SERVICES, INC.; BROWN AND ROOT SERVICES; DII INDUSTRIES, LLC; HALLIBURTON ENERGY SERVICES, INC.; KBR HOLDINGS, LLC; KELLOGG BROWN & ROOT, INC.; KELLOGG BROWN & ROOT INTERNATIONAL, INC.; KBR GROUP HOLDINGS, LLC; KBR TECHNICAL SERVICES, INC.,

Defendants – Appellees,

and

ERKA LTD.,

Defendant.

-------------------------

PROFESSIONAL SERVICES COUNCIL; NATIONAL DEFENSE INDUSTRIAL ASSOCIATION,

Amici Supporting Appellees.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:09-md-2083-RWT)

Argued: May 9, 2018 Decided: June 20, 2018

Before KING, DIAZ, and FLOYD, Circuit Judges.

Affirmed in part and vacated in part by published opinion. Judge Floyd wrote the opinion, in which Judge King and Judge Diaz joined.

12

ARGUED: Susan L. Burke, LAW OFFICES OF SUSAN L. BURKE, Baltimore, Maryland, for Appellants. Warren W. Harris, BRACEWELL LLP, for Appellees. ON BRIEF: Frederick C. Baker, Lisa Marie Saltzburg, James W. Ledlie, MOTLEY RICE, LLC, Mt. Pleasant, South Carolina, for Appellants. Raymond B. Biagini, Robert A. Matthews, Daniel L. Russell Jr., Marianne F. Kies, COVINGTON & BURLING LLP, Washington, D.C.; Jeffrey L. Oldham, Yvonne Y. Ho, BRACEWELL LLP, Houston, Texas, for Appellees. Lisa Norrett Himes, ROGERS JOSEPH O’DONNELL, PC, Washington, D.C.; Lawrence S. Ebner, CAPITAL APPELLATE ADVOCACY PLLC, Washington, D.C.; Alan L. Chvotkin, PROFESSIONAL SERVICES COUNCIL, Arlington, Virginia, for Amici Curiae.

13

FLOYD, Circuit Judge:

The Constitution entrusts the President and Congress, not the courts, with the

power to resolve political questions. See Japan Whaling Ass’n v. Am. Cetacean Soc’y,

478 U.S. 221, 230 (1986); Taylor v. Kellogg, Brown & Root Servs., Inc., 658 F.3d 402,

408–409 (4th Cir. 2011). The issue before us is whether a suit brought by United States

military personnel, civilian contractors, and surviving family members (collectively

“Servicemembers”) against Kellogg, Brown, & Root, LLC, and Halliburton Company

(collectively “KBR”) for injuries allegedly caused by KBR’s waste management and

water services across Iraq and Afghanistan implicates such a political question.

This case returns to us after the district court created an extensive factual record

through a herculean discovery process and once again concluded that the

Servicemembers’ suit implicates a political question that federal courts cannot adjudicate.

See In re KBR, Inc., Burn Pit Litig., 268 F. Supp. 3d 778 (D. Md. 2017) (“Burn Pit IV”).

Additionally, the district court held that the Federal Tort Claims Act (“FTCA”) preempts

the Servicemembers’ claims. We agree with the district court that the political question

doctrine bars the Servicemembers’ suit. Therefore, we need not reach the FTCA

preemption issue. Accordingly, we affirm in part and vacate in part.

I.

A.

Since the United States began its military operations in Afghanistan and Iraq in

2001 and 2003, respectively, the U.S. military has depended heavily on contractors to

14

support its mission. For example, as the military established forward operating bases

(“FOBs”) across the two theaters, those bases necessitated extensive contractor support

for the management of waste, ammunition, fuel, and facilities, and provision of water

treatment and food services, so that the warfighters could focus on combat operations.

To provide waste management and water services at the FOBs, the Army awarded KBR a

ten-year contract called the Logistics Civil Augmentation Program III (“LOGCAP III”).

Since 2008, through 63 separate complaints, the Servicemembers have sued KBR,

alleging that they suffered harms from being exposed to smoke from open air burn pits

and drinking impure water. 1 The Judicial Panel on Multidistrict Litigation consolidated

and transferred these cases to the District of Maryland for pretrial proceedings. The

amended complaint, in large part, alleges that KBR failed to design, manage, and operate

the burn pits safely and to treat and monitor water qualities.

Before any jurisdictional discovery took place, on February 27, 2013, the district

court granted KBR’s renewed motion to dismiss. 2 In re KBR, Inc., Burn Pit Litig., 925 F.

Supp. 2d 752, 774 (D. Md. 2013) (“Burn Pit II”). The district court concluded that (1)

the case presented a nonjusticiable political question, (2) KBR was shielded from suit

under derivative sovereign immunity, and (3) the FTCA preempted the Servicemembers’

state law claims. See id. at 765–68, 771. On appeal, this Court vacated and remanded on

1 Many of these cases are purported class actions on behalf of hundreds of thousands of military personnel and civilian contractors.

2 The district court had denied KBR’s initial motion to dismiss. In re KBR, Inc., Burn Pit Litig., 736 F. Supp. 2d 954 (D. Md. 2010) (“Burn Pit I”).

15

the grounds that the record was not sufficiently developed to support the district court’s

decision. In re KBR., Burn Pit Litig., 744 F.3d 326 (4th Cir. 2014) (“Burn Pit III”).

On remand, the district court commenced jurisdictional discovery regarding “(1)

[t]he degree to which the military controlled KBR’s performance of the contracts” and

“(2) [t]he degree to which KBR was integrated into military command.” 3 J.A. 332.

Jurisdictional discovery yielded over 5.8 million pages of documents, including almost a

million pages of contract documents, and 34 witness depositions. After the conclusion of

jurisdictional discovery, KBR moved to dismiss for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1) based on the political question doctrine and for summary

judgment pursuant to Rule 56 based on FTCA preemption. The district court held an

evidentiary hearing during which each side presented a comprehensive case. KBR

presented six live witnesses. The Servicemembers presented one live witness and

introduced deposition testimony excerpts and the contractual language from LOGCAP III

and various task orders.

B.

Based on the evidence gathered from jurisdictional discovery and presented during

the evidentiary hearing, the district court made key factual findings pertaining to (1)

3 On remand, the district court expressly excluded the question of derivative sovereign immunity from discovery, and later similarly declined to rule on this issue. See J.A. 332; Burn Pit IV, 268 F. Supp. 3d at 786 n.5.

16

KBR’s management of waste, (2) KBR’s provision of water services, (3) the military’s

contracting process, and (4) KBR’s integration into the military chain of command.

1.

The district court found that “the military, after balancing all the risks and

alternative methods of waste disposal, made the sensitive decision to use burn pits, and

only burn pits, at all FOBs in Iraq and Afghanistan.” Burn Pit IV, 268 F. Supp. 3d at 803.

The district court also found that the military determined that no feasible alternatives to

burn pits—such as the use of incinerators, landfills, or recycling—were available, and

KBR could not unilaterally decide to use burn pits. Id. at 806–07.

In making these findings, the district court relied on the testimony of Lieutenant

General, retired, Ricardo Sanchez, the commanding general of the U.S. forces in Iraq in

the immediate aftermath of the invasion of Iraq, who testified that the military’s theater

command “mandated that burn pits be used for eliminating all of the trash” across the

entire theater. Id. at 791 (quoting J.A. 4852). The court also cited the testimony of

Lieutenant General, retired, John Vines, who assumed command after General Sanchez,

that his predecessor’s “standing orders remain[ed] in effect,” that he did not need to

affirmatively re-authorize the use of the burn pits, and that he did not consider

alternatives to burn pits to be feasible. Id. at 792 (quoting J.A. 4917).

The district court explained that the theater command’s decision to use burn pits

“reflected a military judgment . . . in the dangerous, wartime contingency environment.”

See id. at 807. The district court relied on General Vines’s testimony that alternatives

17

such as landfills or recycling services were not feasible because “the slightest movement

[of the U.S. forces] expose[d] those moving to hostile actions.” Id. at 806 (quoting J.A.

4918). The record also contains a written declaration of General Sanchez who similarly

opined that landfills inside the FOBs would have posed a risk of the spread of disease,

stench, and vermin, and landfills outside the FOBs would have posed “an unacceptable

level of security risk” to personnel disposing of waste. J.A. 914.

The district court further found that the military decided against using incinerators

and that KBR could not unilaterally decide to install incinerators to dispose of waste.

The court relied on various witness testimonies, establishing that the military had to

approve the acquisition, funding, and transportation of incinerators into the Iraqi theater.

The district court also cited to General Vines’s testimony that “everything that came

in[to] [Iraq] required support sustainment” and “had side effects.” Burn Pit IV, 268 F.

Supp. 3d at 807 (quoting J.A. 4918). Bringing the incinerators into Iraq would have

required the military to provide a military convoy, potentially diverting combat

personnel. Based on this testimony, the district court found that the military—not

KBR—decided to forgo the use of incinerators. In addition to the district court’s

findings, the record contains General Sanchez’s written declaration that the acquisition

and transportation of the incinerators did not amount to a military priority because, given

the “limited transportation capacity,” the military focused on transporting “mission-

critical supplies, i.e., ammunition and fuel.” J.A. 916.

The district court further found that the military “made all decisions regarding the

location of burn pits on the FOBs in Iraq and Afghanistan.” Burn Pit IV, 268 F. Supp. 3d

18

at 804. The district court cited to various witnesses’ testimonies stating that every FOB

had a base commander who “exert[ed] total operational and physical control” over the

base, that these base commanders “decided where everything went,” including the burn

pits, and that KBR could not “unilaterally move a burn pit from one location to another.”

Id. at 805 (quoting J.A. 1076, 1362, 4955). The record also contains General Vines’s

testimony, explaining that the location for a burn pit implicated a military decision that

only the military commanders could make, because the burn pit “could affect the road

network, communications plan, building [of] a quick reaction force, [the ability to]

maneuver[] around the base in event of infiltration, [the] potential for introduction of

disease, [t]he effect of wind direction, the effect of smoke, [and the] operation on an air

field.” J.A. 4923.

In addition to the siting decisions, the district court found that “[t]he military

exercised control over the operation of the burn pits,” and that “KBR was at all times

acting under the comprehensive direction and control of the military.” Burn Pit IV, 268

F. Supp. 3d at 805–06. One example of the military’s exercise of control, the court

noted, was the military’s determination as to which items could be burned and which

items could not. Based on the two commanding generals’ testimonies, various

memoranda, and letters of technical direction (“LOTD”), 4 the court observed that the

military directed the following items to be burned: plastic water bottles, animal

4 Under the relevant acquisitions practices, LOTDs are contractual documents that “order[] [contractors] to initiate performance of the requirements set forth in the task order[s].” J.A. 1074.

19

carcasses, dining facility trash, woven fiber filters, and oil filters. Id. at 805.

Additionally, the district court cited the declaration of Gerald E. Vincent, a Department

of the Army civilian employee who served as the Environmental Program Manager in

Iraq, stating that “[i]f something was not specifically prohibited, then it was allowed to be

burned.” Id. at 806 (quoting J.A. 1797). Relatedly, as the district court noted, the

military determined that hazardous materials were “to be segregated and disposed of by a

method other than surface burning” and “not authorized to be placed in burn pits.” Id.

(quoting J.A. 4933).

Other portions of the record, cited by the district court, similarly demonstrate the

military’s plenary control over the operation of the burn pits. For example, one LOTD,

dated January 1, 2006, directs KBR “to reduce the amount of solid waste being burned at

Camp Echo at one time by conducting multiple burns of smaller quantities of trash.” J.A.

2039. With regard to the hours of operation, the district court cited to one LOTD, dated

November 11, 2006, that directed KBR to change the burn pit hours at FOB Summerall,

Iraq, from 24 hours to 10 hours a day; and then to another LOTD, dated December 29,

2006, that directed KBR to operate the burn pit at Bagram Air Field, Afghanistan, for 24

hours. Burn Pit IV, 268 F. Supp. 3d at 805 (quoting J.A. 2050, 2052). Lastly, the

standard operating procedure in place for the U.S. forces in Iraq provided that “[f]lames

above the burning material must not be higher than (2) Feet.” J.A. 4394.

20

2.

Next, the district court found that “the military retained a high level of control

over KBR’s provision of water services in Iraq and Afghanistan” and that the military’s

control was “not limited to the ‘what’ of providing water, but rather included highly

detailed specifications concerning ‘how’ it was to be provided.” Burn Pit IV, 268 F.

Supp. 3d at 808. The record demonstrates that water services amounted to a critical

element of “force health protection” because it concerned prevention of dehydration,

disease, and other non-battle injuries which could seriously undermine the readiness of

the U.S. forces. See J.A. 1596, 1613. Yet, General Sanchez testified that water services

presented a unique challenge to the military in theater as it “could not tap into Iraqi

sources of water.” J.A. 4839. The only options were to rely on reverse osmosis water

purification or bottled water. The record indicates that bottled water was disfavored

because transporting water was not as critical as transporting ammunition and fuel. Thus,

the military units and civilian contractors produced potable water through reverse

osmosis purification, “filtering and treating a variety of raw water sources, e.g., rivers and

wells.” J.A. 1818.

The district court found that the military “retained ultimate control over KBR’s

performance of [water] services and tested the water to ensure that the detailed military

standards and methods were being met.” Burn Pit IV, 268 F. Supp. 3d at 809. In making

this finding, the district court relied on the written declaration of Lieutenant Colonel Tara

Hall, the former Chairperson of the Multi-National Corps–Iraq Water Quality Board, who

stated that the “Army Preventive Medicine had oversight over water operations in Iraq

21

and supervised the production, testing, and distribution of potable and nonpotable water.”

Id. at 801 (quoting J.A. 1818). In that declaration, Hall further explained that “the Army

routinely tested potable and nonpotable water to ensure the water was safe for human

uses” and “routinely certified and inspected [reverse osmosis water purification units] to

ensure safety and sanitation.” J.A. 1818. Although the district court acknowledged that

“KBR was, at times, responsible for testing and ensuring the quality of water that it

delivered,” the court nevertheless found that “the military retained ultimate control.”

Burn Pit IV, 268 F. Supp. 3d at 808. The district court relied on testimonial and record

evidence indicating that “Preventive Medicine personnel in theater were required, and

regularly conducted, surveillance of the potable water at base camps.” Id. (quoting J.A.

2192).

After finding that the military retained control over water quality, the district court

cited various documents to further find that the military directed KBR on how to produce

water, detailing the quantity, frequency, and location of production. Id. at 808. The

record contains various documents, such as Task Order 89 which listed the varied

amounts of water to be produced and stored at eight FOBs, directed KBR to “distribute

potable water daily (seven days per week) to units within 250 km from [the specified

locations],” and authorizing the use of reverse osmosis purification. J.A. 4100.

Additionally, the record includes various LOTDs directing KBR to, for example, provide

52,000 gallons of water, fill water tanks, test water to a new dining facility, and operate

certain water wells for up to 8 hours a day.

22

3.

With regard to the military’s contracting process, the district court found that

“[t]he operational arm of the military dictated all requirements” and that the military’s

contracting arm “implemented these decisions through the contracting process.” Burn Pit

IV, 268 F. Supp. 3d at 807. Under the relevant federal acquisitions practices, only

contracting professionals—such as contracting officers or administrative contracting

officers—can alter the terms of a government contract or issue contract guidance through

written documents such as LOTDs or administrative change letters. The military’s

uniformed contracting professionals do not fall under the operational chain of command;

instead, they often fall under a separate chain of command under the Defense Contract

Management Agency (“DCMA”). DCMA receives delegated contract administration

authority from a contracting agency, such as the Army Materials Command, and ensures

that “both the contractor and the Government comply with the terms and conditions of

the contract.” J.A. 1066. In war zones, although there existed a formal divide between

the operational arm and the contracting arm of the military, the contracting arm did not

have the authority to change the requirements identified by the operational command. In

other words, the contracting arm merely translated the operational command’s

requirements into contractual terms and conditions.

Relatedly, during KBR’s performance of the contract, the military had several

methods of evaluating and controlling KBR. DCMA conducted real-time inspections and

quality assurance audits. If KBR failed to meet the commander’s intent, the military and

KBR could informally address the deficiencies. The military also possessed formal

23

methods including the issuance of formal directives to take corrective actions. Because

LOGCAP III was a performance-based contract, KBR received its fee upon the

government’s evaluation of its work. Accordingly, the military evaluated KBR’s

performance through semi-annual award fee evaluation boards consisting of both

contracting and operational military personnel.

4.

Lastly, the district court found that “KBR was integrated into the military’s chain

of command and its waste and water services were essential to the military’s mission.”

Burn Pit IV, 268 F. Supp. 3d at 809. The district court first acknowledged that “the

military commanders retained no direct command authority over KBR employees.” Id.

Although the military commanders could not issue direct orders to KBR, the district court

relied on various witness and deposition testimonies to find that the military “retained

authority and control over KBR’s provision of waste and water services, and KBR was

integrated into the military mission and chain of command.” Id.

In making these findings, the court first cited to General Sanchez’s testimony that

“there were directives that were issued that required KBR to comply,” and that KBR

“could not make decisions unilaterally . . . without coordinating and integrating with the

military.” Id. (quoting J.A. 4880); see also J.A. 812 (Dep’t of the Army Pamphlet 715–

16, Contractor Deployment Guide, stating that “[c]ontractor employees will be expected

to adhere to all guidance and obey all instructions and general orders issued by the

Theater Commander or his/her representative.”). The district court further relied on the

24

deposition testimony of Sari Berman, a former KBR employee, stating that KBR was

“functionally under [military] command.” Burn Pit IV, 268 F. Supp. 3d at 809 (alteration

in original) (citing J.A. 1343). Berman’s testimony further revealed that KBR

participated in the military’s weekly primary staff briefings, daily battle update briefings,

monthly maintenance meetings, and command briefs. The record contains General

Sanchez’s written declaration, explaining that “KBR’s integration into the command and

control structures allowed the military to exercise the necessary levels of control over the

entire logistics chain supporting its operations.” J.A. 908.

***

Based on the extensive facts that it found regarding KBR’s provision of waste

management and water services, the military’s contracting process, and KBR’s

integration into the military chain of command, the district court reached two holdings.

First, the district court held that the Servicemembers’ suit presented a political question

and granted KBR’s motion to dismiss for lack of subject matter jurisdiction. Second, the

district court held that the FTCA preempted the Servicemembers’ state law claims and

granted summary judgment in KBR’s favor.

II.

“We review the district court’s factual findings with respect to jurisdiction for

clear error and the legal conclusion that flows therefrom de novo.” Scott v. Cricket

Commc’n, 865 F.3d 189, 194 (4th Cir. 2017) (internal quotation marks omitted). “The

clearly erroneous standard is a demanding one. We may not simply overturn a lower

25

court’s determination because we would reach a different conclusion.” In re Bate Land

& Timber LLC, 877 F.3d 188, 198 (4th Cir. 2017). “[A] finding is clearly erroneous

when although there is evidence to support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed.”

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (internal quotation

marks omitted). “If the district court’s account of the evidence is plausible in light of the

record viewed in its entirety, the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact, it would have weighed the evidence

differently.” United States v. Wooden, 887 F.3d 591, 602 (4th Cir. 2018) (internal

quotation marks omitted). In addition, “[w]e review a district court’s grant of summary

judgment de novo.” Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th

Cir. 2018) (internal quotation marks omitted).

III.

A.

Under Article III of the Constitution, “[t]he judicial power of the United States”

extends to all cases arising under the Constitution and the laws of the United States. U.S.

Const. art. III. The vesting of the judicial power in federal courts creates their emphatic

duty “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 177

(1803). Thus, federal courts have “a responsibility to decide cases properly before

[them], even those [they] ‘would gladly avoid.’ ” Zivotofsky ex rel. Zivotofsky v. Clinton,

26

566 U.S. 189, 194–95 (2012) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404

(1821)).

Even so, the Supreme Court has long recognized “a narrow exception” to the

federal courts’ duty and responsibility to decide cases, known as the political question

doctrine. Id. at 195. A case or controversy “involves a political question-where there is

‘a textually demonstrable constitutional commitment of the issue to a coordinate political

department; or a lack of judicially discoverable and manageable standards for resolving

it.’ ” Nixon v. United States, 506 U.S. 224, 228 (1993) (quoting Baker v. Carr, 369 U.S.

186, 217 (1962)). Federal courts will not examine cases involving a political question

because doing so would encroach on the constitutional prerogatives of Congress and the

President and because they are ill-equipped to decide these cases. See Baker, 369 U.S. at

217. In other words, the Constitution commits political questions to be resolved within

“the halls of Congress or the confines of the Executive Branch,” not on the steps of a

federal courthouse. Japan Whaling, 478 U.S. at 230; see also Marbury 5 U.S. at 170

(“Questions, in their nature political, or which are, by the constitution and laws,

submitted to the executive, can never be made in this court.”).

“[M]ost military decisions are matters solely within the purview of the executive

branch.” Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 533 (4th Cir. 2014) (“Al

Shimari III”) (internal quotation marks omitted). Whereas the Constitution confers

authority over military affairs in Congress and designates the President as Commander in

Chief, U.S. Const. art. I, § 8; art. II, §2, “[i]t contemplates no comparable role for the

judiciary,” and “judicial review of military decisions would stray from the traditional

27

subjects of judicial competence,” Lebron v. Rumsfeld, 670 F.3d 540, 548 (4th Cir. 2012).

Given the unprecedented levels at which today’s military relies on contractors to support

its mission, however, this Court has recognized that a military contractor acting under

military orders can also invoke the political question doctrine as a shield under certain

circumstances. See Taylor, 658 F.3d at 411. Accordingly, when we are asked to review

a military contractor’s actions, we inquire whether such a review would lead to

scrutinizing military decisions for which we lack the constitutional warrant and judicial

competence. Under this Court’s decision in Taylor, a suit against a military contractor

raises a nonjusticiable political question if either (1) the military exercised direct control

over the contractor, or (2) “national defense interests were closely intertwined with the

military’s decisions regarding [the contractor’s] conduct.” Id. A case must be dismissed

as nonjusticiable if either of these factors is met. Burn Pit III, 744 F.3d at 335.

B.

1.

Under the first Taylor factor, a suit against a military contractor presents a political

question if the military exercised direct control over the contractor. Al Shimari v. CACI

Premier Tech., Inc., 840 F.3d 147, 156 (4th Cir. 2016) (“Al Shimari IV”). To qualify as

direct control, the military’s control over the government contractor must be plenary,

Burn Pit III, 744 F.3d at 338 (quoting Carmichael v. Kellogg, Brown & Root Servs., Inc.,

572 F.3d 1271, 1276 (11th Cir. 2009)), and actual, Al Shimari IV, 840 F.3d at 156.

28

To determine whether the military’s control is plenary, “a court must inquire

whether the military clearly chose how to carry out [the contractor’s activities], rather

than giving the contractor discretion to determine the manner in which the contractual

duties would be performed.” Al Shimari III, 758 F.3d at 534 (internal quotation marks

omitted). The military’s control over the government contractor must rise “to the level of

the military’s control over the convoy in Carmichael.” Burn Pit III, 744 F.3d at 338. In

Carmichael, 572 F.3d at 1275, a military convoy—including fuel trucks being driven by

KBR employees—was on a fuel resupply mission. During the mission, one of the trucks

rolled over, threw Sergeant Carmichael out of the truck, and pinned him down, leaving

him in a permanent vegetative state. Id. at 1278. In dismissing the suit, the Eleventh

Circuit held that the military’s control was plenary, because “the military decided the

particular date and time for the convoy's departure; the speed at which the convoy was to

travel; the decision to travel along a particular route . . . ; how much fuel was to be

transported; the number of trucks necessary for the task; the speed at which the vehicles

would travel; the distance to be maintained between vehicles; and the security measures

that were to be taken.” Id. at 1281; see also Burn Pit III, 744 F.3d at 338.

But the military’s control is not plenary if the military “merely provides the

contractor with general guidelines that can be satisfied at the contractor’s discretion . . . .”

Burn Pit III, 744 F.3d at 338 (quoting Harris v. Kellogg, Brown & Root Servs., Inc., 724

F.3d 458, 467 (3d Cir. 2013)). For example, in Taylor, 658 F.3d at 404, a Marine who

was working on a broken power generator at a tank maintenance ramp suffered severe

injuries when a KBR technician turned on the generator without confirming that the work

29

was complete. This Court concluded that the military’s control over the contractor was

not plenary, because the military had contractually assigned all responsibility for safety

and supervision to KBR, and “KBR was nearly insulated from direct military control . . .

.” Id. at 411. Similarly, in Harris, 724 F.3d at 463, a soldier was electrified to death in

the shower because of a water pump that was, allegedly, negligently installed and

maintained. The Third Circuit concluded that the military’s control over KBR was not

plenary because of KBR’s “significant discretion over how to complete authorized work

orders,” “the lack of detailed instructions in the work orders,” and “the lack of military

involvement in completing authorized work orders.” Id. at 467.

In addition to this framework, this Court in Al Shimari IV explained that the

military’s control must also be actual. See 840 F.3d at 156–57. In Al Shimari IV, the

military, at least on paper, had vast control over the contractors at the Abu Ghraib prison

in Iraq where the U.S. military held detainees. Id. For example, the contractor fell within

the official military command structure, and the military established interrogation rules of

engagement and approved interrogation plans. See id. But based on the Executive

Branch’s investigative findings that Abu Ghraib was “plagued by a lack of an

organizational chain of command presence and by a lack of proper actions to establish

standards and training,” this Court concluded that the military lacked actual control over

the contractors. Id. at 156. “[F]ormal command authority . . . did not translate into actual

control of day-to-day interrogation operations.” Id. The Al Shimari IV court also held

that the contractor must be engaged in “a lawful action under the actual control of the

military,” because “the military cannot lawfully exercise its authority by directing a

30

contractor to engage in unlawful activity.” Id. at 157. In sum, this Court would lack

jurisdiction to entertain the Servicemembers’ suit if the military’s control over KBR was

plenary and actual.

2.

Applying these principles, we conclude that the military’s control over KBR was

plenary and actual. First, the military’s control was plenary as it not only directed to

KBR “what” must be done but also prescribed “how” KBR must accomplish those tasks.

See Al Shimari III, 758 F.3d at 534; Burn Pit III, 744 F.3d at 338–39. Under the

LOGCAP III contract, the military contracted with KBR to provide waste management

and water services. The facts found by the district court plainly show that KBR had little

to no discretion in choosing how to manage the waste. The military mandated the use of

burn pits as a matter of military judgment. KBR could not unilaterally choose to use

landfills, recycling, or incinerators instead. Additionally, the military exercised plenary

control over where to construct the burn pits, what could or could not be burned, when

KBR could operate the burn pits, how high the flames should be, and how large each

burn should be.

With regard to water services, KBR similarly had little discretion to choose how to

provide potable water. KBR could not unilaterally bring bottled water from outside of

Iraq, as it depended on the military supply chain to transport anything. As the evidence

showed, the military directed the frequency and quantity of potable water to be produced

and dictated how much should be stored. The fact that KBR lacked discretion

31

differentiates this case from Taylor and Harris, where the military’s control was not

plenary because the contractors retained significant discretion, but makes it similar to

Carmichael, 572 F.3d at 1282, in which “[e]ach of the[] critical determinations was made

exclusively by the military.” We conclude that the military’s control over KBR’s waste

management and water services was plenary.

Next, the military’s control over KBR was actual. See Al Shimari IV, 840 F.3d at

156–57. Unlike Al Shimari IV, this was not a case involving merely on-paper military

control that was plagued by a lack of actual command presence. Although KBR did not

officially fall within the military chain of command, the military exercised extensive

control and oversight over KBR’s burn pit operations and water services. Operationally,

the commanders and their staff officers interfaced with KBR contractors on a regular

basis. The operational command determined the methods of waste management and

water services that KBR was to use, dictated their requirements for support, and directed

KBR to provide the necessary services through the contracting arm. The military also

retained the ultimate responsibility for testing water quality. Furthermore, the military

continuously and meticulously evaluated whether KBR was meeting the commanders’

intent. Accordingly, we conclude that the military’s control over KBR’s waste

management and water services was actual and plenary.

3.

The Servicemembers raise numerous unpersuasive arguments as to why the

military lacked control over KBR. First, the Servicemembers argue that the district court

32

clearly erred in finding that the military authorized KBR to utilize burn pits across Iraq

and Afghanistan. To support this argument, the Servicemembers note that pursuant to

LOGCAP III, KBR could not use burn pits without written authorization. Because the

record only contains written authorization for burn pits at 18 locations, the

Servicemembers argue that KBR therefore did not have authorization for every burn pit.

We reject this argument. The district court’s factual findings regarding the authorization

of the use of burn pits is compelling in light of the entire record, easily surpassing the

requirement that we uphold the finding so long as it is simply “plausible.” Wooden, 887

F.3d at 602 (internal quotation marks omitted). The record overwhelmingly shows that

the military not only authorized but mandated the use of burn pits.

In a written declaration, the Servicemembers’ own witness, Lieutenant Colonel

Damon Walsh, stated that “it is highly improbable that KBR could have located,

constructed, and/or operated an enduring burn pit without the awareness and

authorization of the military units.” J.A. 1077. Likewise, David Palmer, a KBR

employee, testified at deposition that he was not “aware of any instances where KBR

operated a burn pit without the government’s knowledge.” J.A. 998. And Matthew

Hersch, the military’s quality assurance representative, testified that, “in [his] experience

at Camp Bucca,” there were no “instances where contractors were performing

unauthorized work.” J.A. 4982–83. Thus, the district court’s conclusions that the

military decided, authorized, and mandated the use of burn pits at all FOBs and that there

were no instances of unauthorized use of burn pits are well supported by the record

evidence. In other words, regarding the district court’s finding that the military

33

authorized KBR to use burn pits, the Servicemembers fail to leave a “definite and firm

conviction that a mistake has been committed.” Anderson, 470 U.S. at 573 (internal

quotation marks omitted).

Second, the Servicemembers argue that the district court clearly erred in finding

that the military exercised any control over KBR because the military—or at least its

operational command—cannot directly issue an order to KBR. They argue that only the

military’s contracting arm could direct KBR through contractual agreements, thus

subjecting KBR not to military control but to contractual obligations. This argument is

factually and legally unavailing. Factually, though the most immediate control over KBR

came from DCMA, DCMA acted at the behest of the operational command. Although

part of a separate chain of command, DCMA did not have its own separate mission apart

from the operational command; rather, its mission was to support the operational

command. This is clear from the fact that DCMA did not have the authority to change

the substance of the operational command’s requirements. Therefore, we agree with the

district court’s conclusion that it is “irrelevant here that the military’s operational

commanders . . . effectuated [their] orders by using DCMA (which is part of the military)

as a conduit.” Burn Pit IV, 268 F. Supp. 3d at 814. Furthermore, as the Army’s

Contractor Deployment Guide shows, “[c]ontractor employees [were] expected to adhere

to all guidance and obey all instructions and general orders issued by the Theater

Commander or his/her representative.” J.A. 812.

Moreover, the Servicemembers’ argument is one that places form over substance.

Cf. Al Shimari IV, 840 F.3d at 157 (noting that, although the military had formal control

34

over the contractor’s interrogation tactics, the inquiry turns on “what actually occurred in

practice during those interrogations” (emphasis added)). The Servicemembers ask us to

abstractly look only to the formal, contractual relationship between the military and KBR

while ignoring the actual, operational relationship between them. We decline to do so. 5

Third, the Servicemembers argue that the district court’s findings regarding the

military’s control are clearly erroneous because there is evidence of KBR burning

hazardous material, despite the military’s prohibition against burning such material, thus

showing the military did not actually control KBR. This argument has both factual and

legal dimensions. Factually, the Servicemembers maintain that the district court’s

finding of control was clearly erroneous. Legally, the Servicemembers similarly argue

that “KBR’s repeated violations show a lack of military control over KBR,” just like the

lack of control in Al Shimari IV. Appellant Br. 39–40. We reject this argument on both

fronts. Factually, the district court found the allegations that KBR burned hazardous

material “vague [and] non-specific” and insufficient to “negate the conclusion that the

military retained control.” Burn Pit IV, 268 F. Supp. 3d at 806. We find no clear error in

5 Relatedly, the Servicemembers argue that this case is akin to Taylor, in which the military lacked plenary control because it had contractually assigned the responsibility of supervision to KBR. See 658 F.3d at 411. In the Servicemembers’ view, because the language of LOGCAP III and the contract in Taylor is identical, the military’s control over KBR in this case would similarly not be plenary. We reject this argument. As noted, Al Shimari IV, 840 F.3d at 156–57, requires us to examine what actually happened rather than looking to the formal contractual relationship alone. Given the fact that the military directed KBR’s waste management and water services in an extensive and detailed manner, we cannot say that “KBR was nearly insulated from direct military control.” Taylor, 658 F.3d at 411.

35

that finding. And legally, a few instances of non-specific allegations do not amount to

the type of systematic failure of oversight and lack of command presence found in Al

Shimari IV. In Al Shimari IV, there were extensive findings of systematic violations at

Abu Ghraib by the Executive Branch. Here, the Servicemembers make only vague

allegations. 6

For these reasons, we conclude that the district court did not err in determining

that the first Taylor factor is satisfied. The military’s control over KBR was plenary and

actual, making KBR’s decisions pertaining to waste management and water services “de

facto military decisions” unreviewable by this Court. Taylor, 658 F.3d at 410.

Therefore, we agree with the district court that the political question doctrine bars the

Servicemembers’ suit. Because the first Taylor factor requires dismissal, we need not

discuss the second Taylor factor and decline to do so. See Burn Pit III, 744 F.3d at 335.

IV.

Because this case is nonjusticiable under the first Taylor factor, we believe that the

proper disposition is to affirm the dismissal and to vacate the portion of the district

court’s opinion discussing the FTCA issue. The FTCA waives the United States’

6 The Servicemembers also allege that DCMA was understaffed and poorly trained such that it could not have effectively supervised KBR, thus lacking actual control. We reject this argument, as the district court’s contrary conclusion is well supported by the evidence, and the Servicemembers offer comparatively little evidentiary support for this allegation. As such, they cannot prevail under clear error review.

36

sovereign immunity in certain tort cases. 28 U.S.C. § 2674. But under the FTCA’s

combatant activities exception, the United States remains immune from “[a]ny claim

arising out of the combatant activities of the military or naval forces, or the Coast Guard,

during time of war.” 28 U.S.C. § 2680(j). As relevant here, the combatant activities

exception preempts state tort claims against contractors if “a private service contractor is

integrated into combatant activities over which the military retains command authority.”

Burn Pit III, 744 F.3d at 351 (quoting Saleh v. Titan Corp., 580 F.3d 1, 9 (D.C. Cir.

2009)). Below, the district court concluded that KBR’s activities were integrated into the

military’s combatant activities. Therefore, the district court held that the FTCA’s

combatant activities exception preempted the Servicemembers’ claims.

As we observed in Taylor, 658 F.3d at 412, “because we agree with the district

court that the political question doctrine applies here, the second appellate issue—

whether [the Servicemembers’ claims are] preempted by the FTCA’s combat[ant]

activities exception—is rendered moot.” We decline to review the district court’s

analysis of the FTCA issue, because the result “would be little more than an advisory

opinion . . . .” Id. Mindful of our duty to decide only cases and controversies, we will

not “stray into the practice of advisory opinion-making, solving questions that do not

actually require answering in order to resolve the matters before [us].” Karsten v. Kaiser

Found. Health Plan of Mid-Atl. States, Inc., 36 F.3d 8, 11 (4th Cir. 1994) (per curiam).

Additionally, we have explained that, in these circumstances, the “customary practice . . .

is to vacate the moot aspects of the lower court’s judgment.” Norfolk S. Ry. Co. v. City of

Alexandria, 608 F.3d 150, 161 (4th Cir. 2010). Accordingly, we are “obliged to vacate

37

the FTCA ruling, which constitutes the moot aspect of the district court’s judgment.”

Taylor, 658 F.3d at 412.

V.

For the foregoing reasons, the judgment of the district court is

AFFIRMED IN PART AND

VACATED IN PART.