HOUSTON (CN) — Claims of three workers who sued their employer, military contractor KBR Inc., after they were injured by Iranian missile strikes on a U.S. base in Iraq are preempted by federal law, a judge ruled Tuesday.
Amid escalating tensions between U.S. forces and Iran-backed proxy groups in Iraq, the United States assassinated Iran’s chief military commander, General Qassim Soleimani, with a drone strike on Jan. 3, 2020, as Soleimani traveled in a convoy near Baghdad International Airport.
With Iranian officials threatening “severe retaliation” and “crushing revenge,” the State Department issued a bulletin advising Americans to leave Iraq immediately and U.S. workers employed by foreign companies in Iraq fled the country.
Lead plaintiff Kevin Cloyd could not join the exodus. He was working as an assistant fire chief for KBR’s subsidiary Service Employees International Inc. at the U.S. military’s Al Asad Airbase in Iraq.
He says with an Iranian attack on the base imminent, KBR failed to evacuate him and other Service Employees contract workers and left them at risk of severe harm.
That harm came on Jan. 8 when the Islamic Revolutionary Guard Corps, a branch of the Iranian Armed Forces, triggered Operation Martyr Soleimani and launched more than 12 ballistic missiles at the base.
One of the missiles hit 200 feet from Cloyd and the blast hurtled him through a closed door and left him with severe head and brain injuries.
Cloyd described his injuries in a lawsuit he filed September 2020 in Harris County District Court in Houston seeking more than $10 million damages, in which he and two other injured Service Employees staffers, Nickalandra Witherspoon and Lucila Andrade – a security guard and food service worker at the base, respectively – accused KBR of negligence and gross negligence for not evacuating them when a “reasonably prudent” company would have done so.
The following month, KBR removed the case to federal court. In a motion to dismiss, it argued the workers’ claims were preempted by the Defense Base Act and the combatant-activities exception to the Federal Tort Claims Act, the statute by which litigants can overcome sovereign immunity and sue the federal government and contractors for monetary damages.
U.S. District Judge Lee Rosenthal declined to dismiss the case in May. She found it was unclear if the plaintiffs qualified as KBR’s employees under the Defense Base Act and if KBR and Service Employees fell under U.S. military command authority at the base.
At an Oct. 27 hearing on a motion for summary judgment, KBR’s counsel, Daniel Russell of the Washington firm Covington and Burling, argued Cloyd and his co-plaintiffs were falsely claiming they were not KBR employees to avoid having their claims preempted.
“The allegations are KBR had control over plaintiffs, but in seeking to avoid Defense Base Act bar they say KBR did not have control over them...I don’t think there’s a way to square that,” Russell said in a video hearing before Rosenthal.
Cloyd’s counsel, Marcus Spagnoletti with Spagnoletti Law Firm of Houston, countered KBR is merely a holding company of Service Employees, so it was not Cloyd and his co-plaintiffs’ employer.
But the plaintiffs’ case appeared to be in danger when Rosenthal asked Spagnoletti if they had received any compensation for their injuries.
“Our clients were compensated through an insurance policy of SEII,” Spagnoletti replied, referring to Service Employees International Inc.
“Given [the] fact KBR obtained the coverage, how do you reconcile that?” the judge asked.
Rosenthal further unraveled the plaintiffs’ arguments in an order Tuesday, granting KBR summary judgment and dismissing the case.
She noted the plaintiffs’ employment agreements with Service Employees state they are employees of KBR or its subsidiary and/or affiliate, and they received military base access cards after acknowledging in writing their eligibility for the cards was “tied directly to [their] employment with KBR and the sponsorship from KBR’s U.S. Government Client.”
Rosenthal, a George H. W. Bush appointee who is chief judge of the Southern District of Texas, also agreed with KBR that allowing Texas state-law negligence claims to proceed against it for not evacuating the plaintiffs from Al Asad base would create a conflict between state law and the unique federal interests of contractors supporting the U.S. military in war zones, and would be exactly the kind of second-guessing of military decisions precluded by the Federal Tort Claims Act’s combatant-activities exception.
“Undisputed facts in this record show that plaintiffs were injured by physical violence in a combat zone, they performed services that were ‘mission-critical’ for the military, they were purposefully integrated into the military’s operations, and they were supervised and evaluated by the military,” Rosenthal wrote in her 20-page order.
She said the contract by which the plaintiffs worked at the base gave the U.S. military sole authority to decide whether and when to seek shelter and when protective gear was needed for troops and contract workers.
“KBR did not have authority to make the types of decisions or take the types of actions that are the basis of the plaintiffs’ complaint,” she continued, dismissing the case.
The parties’ attorneys did not respond Tuesday to requests for comment on Rosenthal's order.
Calling the facts of the case “unusual and sad,” Rosenthal inquired about Cloyd’s health in the October hearing, as he was the most seriously injured of the three plaintiffs.
Spagnoletti, his attorney, said he is still receiving treatment for his traumatic brain injury.
“He recently got a hearing aid. He needs some eyewear. . . . Mr. Cloyd is doing better than when he first called the firm, trying to move forward with his life. And he has children,” Spagnoletti added.
Based in Houston, KBR Inc. and its predecessors have a long history of contracting with the U.S. military, back to World War II, and it is accustomed to litigation.
In November 2012, a Portland, Oregon, jury awarded $85 million to a dozen of the state’s National Guard soldiers who sued the company, claiming it had exposed them to an anticorrosion compound that contains hexavalent chromium while fulfilling a contract to restore Iraq’s oil fields in the aftermath of the U.S. military’s March 2003 invasion of Iraq.
In the late 2000s, one-time KBR workers and U.S. troops filed over 20 federal class actions against it for allegedly exposing them to toxic smoke from burn pits it operated at U.S. bases in Iraq and Afghanistan.
In January 2019, the U.S. Supreme Court refused to take up an appeal by Iraq and Afghanistan veterans who claimed they were sickened by inhaling toxic fumes from KBR’s burning of medical waste and tires in pits near their barracks.
The Fourth Circuit had found KBR could not be held liable for claims arising from it disposing waste under the U.S. military’s direction, precedent Judge Rosenthal relied on in dismissing Cloyd’s lawsuit.
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