The U.S. Supreme Court shouldn’t revive a lawsuit alleging that Kellogg, Brown & Root Services Inc. harmed soldiers by using waste burn pits in Iraq and Afghanistan, the defense contractor said.

The soldiers asked the Supreme Court to review an appeals court’s ruling that KBR was immune from the suit under the political question doctrine.

The political question doctrine bars lawsuits against contractors if a court would be be forced to second-guess the wisdom of military decisions.

The Fourth Circuit was correct because the military had complete control over KBR’s performance of a logistics support contract, which included the manner in which it destroyed waste, KBR said in its brief filed Dec. 14.

Every appeals court to consider this issue agrees that the doctrine can bar court review of tort suits that challenge professional military judgments, it said.

Separation of Powers

The plaintiffs alleged that solders were harmed from smoke that came from burn pits KBR used to eliminate trash under its contract.

KBR was immune from suit because the military directed KBR as to what must be done under its contract, and prescribed how KBR must accomplish those tasks, the Fourth Circuit ruled.

The plaintiffs’ Supreme Court petition said courts have gone too far to prevent the review of tort suits against private contractors. KBR also acted with sufficient independence from the military such that the suit should proceed, they said.

Separation of powers principles, which preclude courts from second-guessing military judgments, demand rejecting the petition, KBR said.

Courts lack standards with which to assess whether a defendant took reasonable care to achieve a military objective while minimizing injury and loss of life, KBR said.

Bracewell LLP and Covington & Burling LLP represented KBR.

The case is Metzgar v. KBR Inc., U.S., No. 18-317, brief 12/14/18.