The federal courts cannot second-guess the Department of Defense (DoD)’s wartime decisions and therefore Iraq War veterans have no legal recourse for their burn pit injuries, according to the U.S. Court of Appeals for the Fourth Circuit. Does this case also cut off compensation for injured private military contractors?
Several dozen lawsuits against KBR allege that company-maintained burn pits bellowed toxic smoke and directly injured some 800 individuals. Earlier, a Maryland U.S. District Court judge had ruled that the political question doctrine, a procedural rule, applied in this case. Although the judiciary serves as a check on executive powers, the judge concluded that check does not apply during the fog of war. During arguments at the appeals court, victims’ attorney Susan Burke argued that KBR’s use of burn pits violated its DoD contract, and established DoD procedures. KBR’s lawyer countered that the company had no say in the matter and was simply following orders. For example, attorney William Harris pointed out, the DoD determined where the pits would be located, what would be burned, and what hours the pits would operate.
The three-judge panel unanimously sided with KBR’s attorney. “The facts found by the district court plainly show that KBR had little to no discretion in choosing how to manage the waste,” stated Judge Henry F. Floyd. “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,” he added.
Ms. Burke said she was disappointed with the decisions and the victims were mulling their options. However, these options may be limited at this point. The full Fourth Circuit could decide to re-hear the matter, but such re-hearings are rare unless there is a clear error. An appeal to the Supreme Court is unlikely as well, as the Justices only hear a tiny fraction of the cases that come to them for review.
Are Injured Iraq Contractors Still Eligible for Compensation?
These victims are still entitled to benefits not from a negligence action in federal court, but by virtue of the Defense Base Act. Under this 1941 law, injured victims basically only need to establish a causal relationship to receive compensation for their:
- Lost Wages: Most temporarily disabled victims receive two-thirds of their lost wages from the time of injury until the date they fully recover. Some other permanently disabled victims may receive a similar award.
- Medical Bills: The DBA does not pay for emergency care and then stop. Instead, the benefits continue through follow-up care and physical rehabilitation. These benefits also include medical devices, prescription drugs, transportation, reimbursement, and any other medically necessary expenses. Moreover, most victims can choose their own doctors.
Substantial benefits are available, but the insurance companies usually fight these claims aggressively. Like other insurance companies, DBA insurers make money by collecting premiums and lose money by paying claims. Quite often, defendants challenge the medical evidence in these cases. For example, the DBA insurance company might claim that the victim’s injuries were not service-related. That is the company line when it comes to burn pit injuries, as outlined below.
While the Fourth Circuit effectively cut off a path for recovery through the federal courts, the case did not question the fact that burn pits caused serious injuries. As far as DBA claimants are concerned, that is about the only point that matters.
Burn Pit Injuries in Iraq
In January 2018, the Department of Labor ruled on this very issue. An Administrative Law Judge determined that, “as a matter of law,” exposure to the huge burn pit at Joint Base Balad (“Camp Anaconda”) caused the victim’s deployment-related lung disease.
Deployment-related lung disease (DRLD) is just one illness connected with burn pits in Iraq. Typically, KBR contractors dug these huge pits and filled them with all the refuse from the base. That refuse included medical waste, used tires, styrofoam cups, ammunition, and almost anything else you can think of. After soaking the waste in jet fuel, it was set ablaze. Thick smoke laced with heavy metals filtered through the air and all around the base.
Conditions like constrictive bronchiolitis (CB) may be an even bigger concern than DRLD. Army physicians first warned about CB as early as 2006, but these warnings fell on deaf ears. This disease is extremely serious and normally never found in young people who are otherwise healthy. That group includes private military contractors in Iraq.
This condition is sometimes known as “popcorn lung” because of the crackling sound that victims make when they try to breathe. Essentially, constrictive bronchiolitis blocks the lung’s air passages and basically suffocate the victim. This terrible disease is just as painful as it sounds. In 2008, the VA diagnosed over three hundred CB cases among returning Southwest Asia veterans, a figure that the doctors considered far too high to be coincidental.
Despite the mounting evidence, the VA continued to insist that a combination of dust, heat, and other non-combat factors caused these illnesses. That is the same line that the VA continues to use about the 1990s Gulf War Disease. Until fairly recently, that is also the same argument the VA used to deny compensation to Vietnam War-era Agent Orange victims.
The aforementioned Department of Labor decision significantly undercut this argument. The Division of Longshore and Harbor Workers’ Compensation, which administers the Defense Base Act, is part of the Labor Department.
For more information on how you can claim your DBA benefits, contact Barnett, Karsen, Lerner & Frankel, P.A.