Three suits against military contractors in Iraq over the deaths or injuries of civilian truck drivers in convoys attacked by Iraqi insurgents in April 2004 have been veiled in secrecy for more than two years.

In October 2005, U.S. District Judge Nancy Atlas of the Southern District of Texas in Houston issued a protective order that has kept much of the briefing, deposition testimony and other evidence under seal. A three-judge panel of the 5th U.S. Circuit Court of Appeals closed the courtroom Jan. 30 to hear arguments in the three cases — Lane v. Halliburton, et al., Fisher, et al. v. Halliburton, et al. and Smith-Idol v. Halliburton, et al.

A spokeswoman in the clerk’s office at the 5th Circuit says it’s “pretty rare” for the court to close the courtroom during oral arguments.

David Gunn, a Houston attorney who argued at the 5th Circuit on behalf of the Lane and Fisher plaintiffs, says the plaintiffs chose not to oppose the defendants’ motion to close the courtroom in the belief that the protective order would make the closure inevitable.

U.S. District Judge Gray H. Miller, a President George W. Bush appointee, took over responsibility for the cases in May 2006, the same month he joined the court in Houston, as part of the normal shifting of cases to equalize workload whenever a new judge comes on a federal court. Miller dismissed all three suits in September 2006, holding that the plaintiffs’ claims raised nonjusticiable political questions. The plaintiffs then appealed to the 5th Circuit.

On May 28, the 5th Circuit panel breathed new life into the three suits, holding that it may be possible for the district court to resolve the plaintiffs’ tort claims “without needing to make a constitutionally impermissible review of wartime decision-making.”

In an opinion written by Judge Leslie Southwick, the unanimous 5th Circuit panel concluded that the three cases need further development before the district court will know whether the political-question doctrine “is actually an impediment.” Judges Carolyn Dineen King and Harold DeMoss Jr. joined Southwick in reversing Miller’s dismissal of the suits. The panel remanded the cases to Miller’s court.

The secrecy that has shielded the cases from public scrutiny could come to an end. Lawyers for the plaintiffs in all three cases say they will file motions to lift the protective order.

“Given the amount of time that’s passed since the events, it’s a good time to take another look at that protective order,” says Gunn, a partner in Beck Redden & Secrest.

Midani, Hinkle & Cole partner Tobias Cole of Houston calls the protective order “silly.” Cole, whose client, plaintiff-truck driver Kevin Smith-Idol, was injured during an attack on a convoy in Iraq, says the cases don’t involve as much sensitive information as can be seen on cable television.

“What it is, is it’s embarrassing for the defendants,” Cole says. “I’ve never seen documents shielded because they would be embarrassing.”

T. Scott Allen Jr., one of the attorneys representing the Fisher plaintiffs, says the documents that come under the protective order involve the defendants’ trade secrets or proprietary information but do not contain classified materials.

Allen points out that Lt. Col. Michael G. Seidel, then the U.S. Army’s chief of the general litigation branch, wrote in a May 9, 2006, letter to the district court in Houston that the documents in the three cases do not contain classified materials but may contain materials deemed confidential.

“The confidentiality order, in my view, is a complete sham,” says Allen, a partner in Houston’s Cruse, Scott, Henderson & Allen.

Tommy Fibich, an attorney for the Lane plaintiffs and a partner in Houston’s Fibich Hampton & Leebron, contends, “From the very beginning of this lawsuit, Halliburton and KBR have sought to keep what happened from disclosure.”

KBR spokeswoman Heather Browne provided a written statement from the company in an e-mail responding to Texas Lawyer’s questions about the confidentiality issue. The statement reads, in part: “KBR is reviewing the decision. As such it would be inappropriate to comment at this time. The safety and security of all employees remains KBR’s top priority. Four years later we still grieve for the families affected by this tragedy.”

Melissa Northcross, a spokeswoman for Halliburton, writes in an e-mail responding to Texas Lawyer’s inquiry: “Although Halliburton was named in the lawsuit, the activity involved was pursuant to a KBR contract. Defense of this lawsuit is KBR’s responsibility, so we cannot comment on the details.”

Kellogg Brown & Root was a subsidiary of Halliburton until 2007 when it changed its name to KBR.

High Risk

The 5th Circuit’s opinion in Lane v. Halliburton provides the following background on the three cases, which the plaintiffs filed in 2005 and 2006: Following the Sept. 11, 2001, terrorist attacks on America and the U.S. invasions of Afghanistan and Iraq, the U.S. Army awarded KBR a contract under the authority of the Logistics Civil Augmentation Program (LOGCAP) to provide logistical support services to U.S. military forces operating in Iraq. To fulfill its obligations under the LOGCAP contract, KBR recruited civilian truck drivers in the United States to work in Iraq. Army regulations provide that contractors employed pursuant to LOGCAP are not under the military’s direct supervision, but the regulations require the military to assess the risk of any mission and to determine whether contractor support is suitable in certain situations and locations.

According to the 5th Circuit’s opinion in Lane, the plaintiffs allege that KBR portrayed the work that its employees would perform in Iraq as “rebuilding activity” and told applicants that they would not be sent to work in a “war zone or combat area.” The plaintiffs point to a Web site that assured applicants that U.S. military protection would be in place 24 hours a day to ensure safety. The plaintiffs also point to a memorandum circulated by KBR to its employees that asserted that while they would be working in a “hostile environment . . . [t]his does not mean your safety will be compromised.”

As noted in Lane, the plaintiffs allege that “KBR’s promises of a safe work environment were proven false in April 2004.” Smith-Idol, the plaintiff in one case, sustained injuries on April 8, 2004, when a convoy in which he was a driver came under attack by Iraqi insurgents. The following day, attacks on additional convoys resulted in injuries to more truck drivers and six drivers died in the attacks.

The plaintiffs allege that KBR authorized these convoys even though it was aware that the routes they would travel were subject to a very high risk of insurgent attack, Southwick noted in Lane.

According to the opinion, the plaintiffs allege that KBR is responsible for their injuries under fraud-based claims stemming from state law. Essentially, the plaintiffs allege KBR used intentionally misleading and false advertisements and recruiting materials to induce drivers to accept employment with the company and relocate to Iraq. The second set of state-law claims made by all the plaintiffs are based on allegations that KBR’s actions constituted intentional infliction of emotional distress, Southwick noted in Lane.

The Smith-Idol and Fisher plaintiffs also allege federal civil-rights violations under 42 U.S.C. §1983 and violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §1962(c)-(d), according to Lane.

In dismissing the cases, Miller concluded that he could not “try a case on a battlefield during war-time without an impermissible intrusion into powers expressly granted to the Executive by the Constitution.”

Laura Dickinson, a University of Connecticut School of Law professor whose areas of expertise include national security law, says Miller’s decision was “very cursory.” Simply because an act took place in a contingency operation does not mean a court cannot decide a claim, Dickinson says.

As noted in the 5th Circuit opinion in Lane, the district court determined that the most important facts in the three cases were derived from KBR’s LOGCAP contract and relevant Army regulations. The district court found those documents “show overwhelmingly that the Army was an integral part of any decision to deploy and protect convoys.”

But Christina Fountain, another attorney representing the Fisher plaintiffs and a partner in Lopez McHugh in Newport Beach, Calif., says, “Our complaints deal strictly with KBR’s conduct, not the military’s conduct.”

The 5th Circuit determined that the plaintiffs’ claims involve actions and omissions only by KBR.

In the opinion in Lane, Southwick noted that KBR has made it clear, if a trial is held, that it would argue that KBR’s actions or inactions are not the cause of the plaintiffs’ injuries; the insurgents’ attacks and the Army’s failure to provide adequate protection of the convoys caused the injuries. The plaintiffs point out, however, that a familiar theory of tort law permits recovery “even though another actor or cause intervenes to be the direct cause of injury,” Southwick wrote.

Because the plaintiffs’ claims involve only KBR’s actions and omissions, a federal court can examine the company’s conduct without violating the Constitution’s separation of powers, the 5th Circuit determined.

However, the 5th Circuit cautioned that further development of the facts when the cases return to the district court could again send the suits “toward the political question barrier.”

Dickinson says the 5th Circuit’s decision is significant, because it rejects the district court’s dismissal on the political-question grounds. While the 5th Circuit’s decision allows the lower court to dismiss the case on political grounds, Dickinson says the opinion sets a very high bar for such a dismissal.

The defendants now have “a much bigger hurdle they have to meet,” Dickinson says. Under the 5th Circuit’s decision, the district court must do a much more careful analysis of the cases than it did previously, she says.

The plaintiffs also still face the hurdle of whether KBR is entitled to some kind of immunity because it’s a military contractor, Dickinson says.

But Cole says the fact that so much time has passed since the attacks on the convoys will be in the plaintiffs’ favor when they seek to lift the protective order. Much of the information at issue in the cases has been evaluated publicly, he says.

Notes Cole: “At this point, there’s definitely no need for a protective order.”