|"Only dull people are brilliant at breakfast"
|"The liberal soul shall be made fat, and he that watereth, shall be watered also himself."
-- Proverbs 11:25
A significant test case in the Supreme Court on the legal rules that govern military contractors’ liability for employee misconduct in war zones has now ended, without any action by the Justices. In an order now shown on the Court’s docket, the Court dismissed the case of KBR Technical Services, et al., v. Jones (09-864). This was done March 11 under the Court’s Rule 46, which allows parties to agree to end a pending case; no explanation is given for such dismissals. (The petition is here, and the brief in opposition is here.)
The case has drawn heavy publicity, and led to action by Congress to limit defense contractors’ legal rights toward their workers, because it involves claims of gang rape and serious injury of a female worker for KBR (a Halliburton Co. subsidiary) in employee housing in the so-called “Green Zone” in Baghdad, Iraq. The case now is headed for trial in federal court, currently scheduled to begin in Houston on May 16 of next year. Pretrial motions are due there in February.
>The former KBR employee is Jamie Leigh Jones, whose lawsuit contends that, three days after arriving in Iraq in July 2005, she was sexually assaulted in company barracks in Baghdad. Here is the way the Fifth Circuit Court described her claims: “Jones alleges that, following a social gathering outside her barracks, at which alcohol had been consumed, she was drugged, beaten, and gang-raped by several Halliburton/KBR employees in her barracks bedrooom.” She also claims that, after the attack, her supervisors placed her “under armed guard in a container.” After she was freed, and returned to the U.S., she complained to the U.S. Equal Employment Opportunity Commission, and it confirmed the assault.
Initially, she sought to have her legal claims sent to arbitration but, with a new lawyer, filed her lawsuit in federal court. KBR then sought to send the entire dispute to arbitration, noting that, as an employee, Jones had agreed to arbitrate workplace disputes. A federal judge allowed some issues to go to arbitration, but ruled that others had to be tried in court. The Fifth Circuit agreed, leading KBR to file its petition in the Supreme Court in January.
The petition accused Jones of going “to great lengths to sensationalize her allegations against the KBR Defendants in the media, before the courts, and before Congress.” The reference to congressional action was to the so-called “Franken Amendment,” named for its chief sponsor, Minnesota Democratic Sen. Al Franken. That provision, a direct response to Jones’ claims, bars some Pentagon contractors from receiving federal funds if they seek to enforce arbitration of claims against them involving sexual assault or harassment.
KBR insisted in its Supreme Court filing that “the legislation does not affect this case.” Jones’ lawyers, in opposing Supreme Court review, argued that the reach of the Franken Amendment remains unresolved. That, apparently, will be one of the issues that will be explored further as the case goes forward in federal District Court.
The KBR petition, limited to the arbitration question, argued that the Fifth Circuit had adopted “a narrow construction of standard arbitration language to exclude sexual assault claims,” setting up a conflict with other federal appeals courts and state supreme courts, and breaching the strong federal policy in favor of arbitration. Jones’ lawyers responded that the Fifth Circuit was right in concluding that her sexual assault claims were not related to her employment, and thus were outside the arbitration obligation. KBR had not filed a reply brief by the time the question of dismissing its petition arose.
KBR’s lead lawyer on the petition, Washington attorney Stephen R. Kinnaird of Paul, Hastings, Janofsky and Walker, on Monday declined a request for comment on the dismissal. Heather L. Brown, communications director for KBR Inc., in Houston, issued this statement: “KBR’s decision to withdraw its petition from the Supreme Court was related to the Franken amendment. It is our belief that the language of the amendment is very broad and vague. As a result, KBR did not want to risk being in violation of the amendment, so the company withdrew its petition.”