The new wages of war - devaluing death and injury: conceptualizing duty and employment in combat zones.

• Author: LeRoy, Michael H.

1. INTRODUCTION: THE NEW WAR-LABOR PARADIGM

   My study explores the growing interface between civilian employment and military service in war zones. It is motivated by changes in waging war. The U.S. once had a vertically integrated process to transport troops, run supply chains, and maintain equipment. Today, the military outsources these functions to private companies. (1) These contractors began to function as "force multipliers" for the military in 1992, and are in use today. (2) In 2009, 242,000 civilian contractors worked with 280,000 soldiers in Iraq and Afghanistan. (3) Also dubbed private military forces, (4) these American civilians drive trucks, cook meals, fix planes, and provide security. (5)

   Co-mingling military service and civilian employment raises new questions about legal remedies for Americans who are killed or injured serving their country. Increasingly, soldiers serve under the direction of contractors. Meanwhile, civilian employees work for private sector firms that are directed by the military. (6) Thus, some soldiers engage in non-combat activities such as building water treatment plants, (7) while civilians work in combat support roles such as guarding mess halls and supplying troops. (8) Afghanistan is a case in point.

   Now consider how the new war-labor paradigm functions on the ground. An example is the Halliburton supply convoy that tried to deliver supplies to U.S. troops in Iraq in 2004. (9) The group was ambushed and six truck drivers were killed. (10) The day before, a similar convoy was attacked, killing a coworker. The work was so unsafe that managers contemplated an interruption of services, but they decided to go forward, leading to the death of their employees. (11)

   My study asks: how should the workers' survivors be compensated? Suing in tort, they believed that job ads misrepresented the safety of work in Iraq. (12) A judge rejected Halliburton's defense that it has immunity from suits as a government contractor. (13) Thus, the survivors' legal claims are proceeding to trial.

   Consider a reciprocal case, where soldiers served on a noncombat mission under a civilian contractor. As they worked at an Iraqi water treatment plant, they developed bloody noses: a sign of poisoning from the sodium dichromate in pipes. (14) This study also asks: Should the soldiers only receive service member benefits, or should they be allowed to pursue tort and other remedies? Fearing long term effects from this deadly toxin, the soldiers sued KBR. (15) An Indiana court will decide whether their claims are dismissed under a doctrine that bars tort recovery for injuries that arise during military service. (16)

   Death- and injury-benefit cases do more than raise technical legal questions. When courts award or deny monetary relief in these war labor cases, they decide whether civilians and soldiers perform "work" or "service." The distinction has profound consequences for compensating war losses. This study sheds light on growing judicial scrutiny of the integrated use of civilians and troops by asking: How are civilians and soldiers who are co-mingled in this military system paid for death and injury? Do sovereign immunity theories bar recovery? Do courts order arbitration of these claims? If courts try claims, what laws apply: tort or workers' compensation?

   While the focus of my study is on the compensation of soldiers and contract employees for injuries that arise when troops and civilians are in coordinated activities, my research question is related to a broader issue. In Saleh v. Titan Corp., (17) Iraqi nationals and surviving widows sued a private contractor under the Alien Tort Statute for alleged torture and other abuse allegedly carried out in the Abu Ghraib prison. Similar to most cases in my study, the contractor asserted sovereign immunity. (18) In a split decision, the D.C. Circuit ruled that the contractor was entitled to assert this defense. In a pertinent passage, the appeals court cited the close integration of military and contractor activities in managing the work of civilian employees as justification for providing the immunity. (19) The United States Supreme Court recently expressed interest in addressing this immunity issue. (20) The possible import is that the Supreme Court, in the course of ruling on whether contractor employees commit actionable torts in Iraq when their conduct is co-regulated by military and civilian supervisors, could clarify whether similarly-situated employees are allowed to sue in tort for combat-related injuries.

   This Article is organized in three Parts. Part II is an overview of contractor defenses to death and injury claims. (21) Part III is a typology of litigation outcomes in lawsuits by service members and civilian workers, in which I also discuss my reason for using a typology. (22) After I describe how cases were identified for this study, (23) I present the typology and discuss the cases. (24) Part IV presents my conclusions (25) and public policy options. (26)

2. CONTRACTOR DEFENSES TO CLAIMS FOR DEATH AND INJURY BY SERVICEMEMBERS AND CIVILIAN EMPLOYEES

   Using federal and state court cases, and workers' compensation rulings, I explored cases where civilians or soldiers in these integrated roles were killed or injured. In each of these cases, a private employer was sued over the incident.

   Mostly, plaintiffs in this study sued in tort under a variety of theories, including assault and battery, (27) negligence, (28) misrepresentation, (29) and emotional distress. (30) Spouses filed derivative claims such as wrongful death (31) and loss of consortium. (32) Parents and children sued for negligence. (33) In general, these causes of action have lucrative remedies.

   In response to these lawsuits, contractors typically asserted three lines of defense: (1) a derivative of sovereign immunity stemming from the relationship of the contractor to the U.S. military; (2) workers' compensation as an exclusive remedy; or (3) an individual insurance contract between the employee and employer. The following explains these defenses.

   1. The Contractor Asserts Sovereign Immunity

      This doctrine reflects a long-held view that the United States must give consent before a party may sue it. (34) In specific instances, the federal government has waived its sovereign immunity--for example, where individuals sue on a government contract. (35) By 1946, the United States provided individuals a limited cause of action for torts, (36) thereby creating an exception to the sovereign immunity doctrine.

      Suppose that an Army surgeon negligently caused a soldier's death, or that he failed to remove a towel during abdominal surgery--or in another scenario, suppose the Army's failure to fix a defective heater caused a barracks fire that killed a serviceman. Would the Federal Tort Claims Act provide recovery for these injuries? The Supreme Court ruled on these consolidated claims in a leading case, Feres v. United States. (37)

      Finding no direct answer to the question of government liability for service-related death or injury caused by negligence, the Court derived its Feres military-immunity doctrine from two principles. First, "[w]e know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving." (38) Second, the Court recognized the impracticality of allowing civil litigation for military torts: "A soldier is at peculiar disadvantage in litigation. Lack of time and money, the difficulty if not impossibility of procuring witnesses, are only a few of the factors working to his disadvantage." (39) Thus, Feres concluded that the federal government is not liable under the Federal Tort Claims Act for injuries to servicemen that arise as an incident to service. (40)

      The Supreme Court reaffirmed the Feres doctrine in United States v. Shearer but instructed courts to take a case-by-case, rather than per se, approach to claims for immunity. (41) Thus, the "Fetes doctrine cannot be reduced to a few bright-line rules; each case must be examined in light of the statute as it has been construed in Feres and subsequent cases." (42)

      Courts often cite the Feres doctrine to deny a tort recovery for military claimants. (43) The doctrine has been broadened to provide derivative immunity to private entities. In United States v. Munoz, the Supreme Court allowed lower courts to dismiss lawsuits against private actors based upon the political question doctrine. (44) A common case involves claims for defective military products, where the contractor is a manufacturer. (45) However, after Shearer some courts find that the Feres doctrine does not apply. (46) My study does not examine contractor liability for defective equipment that caused death or injury in Iraq or Afghanistan. (47) Again, it focuses on losses that were proximately caused by the contractor's activities in the war zone.

   2. The Contractor Asserts the Exclusive Remedy Provision in Workers' Compensation

      State worker compensation statutes were enacted "to remove [n]egligently caused industrial accidents from the common law tort system." (48) This law requires employers or their insurers to pay for loss of income, medical costs, and loss of work capacity for injuries that arise in the course of employment. Where an injury arises in situations that are only tangentially work-related, the law still applies--but it also extinguishes an employer's tort liability, even for exposing the employee to extraordinary risk. (49) Courts have summarized this trade-off: "That philosophy has commonly been described as a quid pro quo on both sides: in return for the purchase of insurance against job-related injuries, the employer receives tort immunity; in return for giving up the right to sue the employer, the employee receives swift and sure benefits." (50)

   3. The Contractor Asserts That Its Employment Contract with the Employee Precludes Legal Remedies and Access to...