ThePopTort

The Feres Doctrine’s Military Injustice

The nation, it seems, has suddenly woken up to the problem of military sexual assaults against women. Today, on its front page, the New York Times ran part two of a series about the disproportionate trauma faced by female military vets, often exasperated by sexual assaults that occured while in the military.  Departing  Pentagon chief Leon E. Panetta estimated such assaults could number 19,000 a year.  

Today, the Times wrote about the “common pathway to homelessness for women - [that is,] military sexual trauma, or M.S.T., from assaults or harassment during their service, which can lead to post-traumatic stress disorder.”  And nothing illustrated this crisis better than the Oscar-nominated, award-winning documentary, The Invisible War.  If you haven’t see this film, there are numerous ways to download, watch or screen this extraordinary film today.  And then take action here.

But there is one more thing we must do.  We must change the law, so that sexual assault survivors are no longer prohibited from holding the government legally accountable for its role is allowing this crisis to continue.

Rachel Natelson, Legal Director of Service Women’s Action Network, has a piece in Time magazine called "The Unfairness of the Feres Doctrine," a doctrine that we’ve covered often at ThePopTort.  Basically, the “Feres Doctrine” is a 60-year-old policy that bars U.S. military personnel from suing the government for personal injuries suffered while they are in the armed forces. Even, it turns out, when an epidemic of sexual assaults exists. Writes Nelson:

[F]or Ariana Klay, and other subjects of the Oscar-nominated documentary The Invisible War, however, the wounds of battle are unlikely to fade with the closing credits.

In dismissing Klay v Panetta, a civil lawsuit that Klay brought against the Pentagon for failing to protect her and other service members from sexual violence, U.S. District Judge Amy Berman Jackson has perpetuated a baffling tradition of depriving military personnel of basic civil rights.

Like countless others injured due to the negligence or misconduct of their brothers-in-arms, Klay and her co-plaintiffs have been denied a remedy for the wrongs they suffered, simply because they were harmed during their time in uniform.

Congress can fix this. Thanks to the leadership of Senator Al Franken (D-MN), Congress already fixed a related problem by prohibiting military contractors from covering sexual assaults in its forced arbitration clauses. 

They can do this.  

Our Military: Fighting for the Right to Serve and Live

In her HBO documentary Public Speaking, the brilliant and legendary wit, Fran Liebowitz, has a line that goes something like, “I am stunned that the two greatest desires apparently of people involved in the gay rights movement are gay marriage and gays on the military. Really? To me these are the two most confining institutions on the planet.”

Say what you will, the fight to fight has been a focus not only of the gay rights movement but of the women’s movement, as well.  Last week, a federal lawsuit was filed in California challenging the Defense Department’s “formal exclusion of women from most direct ground combat positions.”

According to the lawsuit filed in U.S. District Court in San Francisco, the sweeping restriction based on gender is unconstitutional because it is not justified by a specific governmental objective, as the U.S. Supreme Court has required. Women effectively serve in direct combat, the suit said, often without the level of training provided to their male counterparts or the recognition that would enable them to advance.

“The policy has the effect of closing off whole career fields for women,” said Ariela Migdal, a senior staff attorney with the ACLU's Women Rights Project. “We demand that the U.S. military bring its policy into line with modern society.”

We certainly hope they win. But we also hope they don’t end up like Vietnam Vet John Shepherd Jr. who, reports the New York Times today, is also suing the military in a class action, “arguing that he and other Vietnam veterans had post-traumatic stress disorder when they were issued other-than-honorable discharges” and is asking that their discharges be upgraded. Here’s what happened to John after enlisting in 1968 and being sent to the Mekong Delta:

Within a month, his patrol was ambushed, and Shepherd responded by tossing a hand grenade into a bunker that killed several enemy soldiers. The Army awarded him a Bronze Star with a valor device, one of its highest decorations.

Yet the honor did little to assuage Shepherd’s sense of anxiousness and futility about the war. A few weeks after his act of heroism, he said, his platoon leader was killed by a sniper as he tried to help Shepherd out of a canal. It was a breaking point: His behavior became erratic, and at some point he simply refused to go on patrol.

“I never felt fear like I felt when he got shot," Shepherd said last week.

After a court-martial, the Army discharged Shepherd under other-than-honorable conditions, then known as an undesirable discharge. At the time, he was happy just to be a civilian again. But he came to rue that discharge, particularly after his claim for veterans benefits was denied because of it.

The lawsuit, which was prepared with the help of Yale law students, “could have a wide impact.”

The Yale team says that its review of records from 2003 to 2012 shows that 154 Vietnam-era veterans petitioned the Army to upgrade discharges because of PTSD, but that only two were successful. Yet the Army Board of Corrections for Military Records granted upgrades nearly half of the time for other cases.

The students estimate that more than a quarter million Vietnam-era veterans were discharged under other-than-honorable conditions, and that thousands of those probably had PTSD. Their suit names as defendants the secretaries for the Army, Air Force and Navy. Vietnam Veterans of America, the veterans service organization, is joining the case as a plaintiff today. Discharges that are other than honorable can make it harder for veterans to find work and also disqualify them for veterans benefits.

The fight to fight shouldn’t be so hard, and then turn into a fight to live, earn a living and get proper care. Our Vets, and the nation, deserve better.

Military Contractors Off and On the Hook

Sunday is such a busy TV night that articles have been written about how to deal withy the DVR overload.  So I’m not sure if you caught “The Good Wife” last night, but there was a fascinating episode about “a male defense contractor accused of sexually assaulting a female officer,” who has sued him for civil damages.   First, the storyline had the contractor trying to assert absolute immunity under the Feres doctrine, which we’ve covered on this blog mostly in the context of medical malpractice and which effectively bars U.S. military personnel from suing the government for injuries caused by “the negligence of others in the armed forces.”   

But that kind of defense for contractors just about never works and it didn’t work for the storyline.  (Turns out the contractor had entered the military minutes before the sexual assault.  Wonder how often that happens?)  Anyway, the Congressional Research Service put it this way in April 2001, report:

The Feres doctrine currently does not bar suits against government contractors working for the military, although some contractors have argued that it should be extended to preclude such suits, and some commentators have asserted that the Feres doctrine leads service members to seek damages from contractors that they could not recover from the government. Contractors have also attempted to assert derivative Feres or “intramilitary” immunity, although with little success. Where a party is immune from suit, the court cannot exercise jurisdiction over the claim against it.

Contractors indeed are doing some horrible things to U.S. soldiers, with the Pentagon often picking up the tab.  Coincidently, last Friday, a jury in Portland Oregon ordered contractor KBR “to pay $85 million after finding it guilty of negligence for illnesses suffered by a dozen Oregon soldiers who guarded an oilfield water plant during the Iraq war.”  Writes AP:

The suit was the first concerning soldiers’ exposure to a toxin at a water plant in southern Iraq. The soldiers said they suffer from respiratory ailments after their exposure to sodium dichromate, and they fear that a carcinogen the toxin contains, hexavalent chromium, could cause cancer later in life.

Rocky Bixby, the soldier whose name appeared on the suit, said the verdict should reflect a punishment for the company’s neglect of U.S. soldiers.

“This was about showing that they cannot get away with treating soldiers like that,” Bixby said. “It should show them what they did was wrong, prove what they did was wrong and punish them for what they did.”

Each soldier received $850,000 in non-economic damages and $6.25 million in punitive damages.

Another suit from Oregon Guardsmen is on hold while the Portland trial plays out. There are also suits pending in Texas involving soldiers from Texas, Indiana and West Virginia.

KBR’s appealing.  Meanwhile, here’s the full episode of "The Good Wife."

Medical Malpractice Victims Fight Wars, Lose Rights

“The king can do no wrong,” or in modern day military medical malpractice parlance, the doctor can be grossly negligent and the patient can’t sue.  Or at least, the right to sue is, shall we say, “ailing.”  This is not a new topic (see our past coverage here) but there a couple new twists to tell you about.  

First, it was reported late last week that one of two “pro se” cases just accepted by the U.S. Supreme Court this term concerns whether the “sovereign immunity” given doctors who commit negligence at military hospitals (because, of course, doctors at such hospitals are deities incapable of committing “legal wrongs”) should apply when the doctor also commits a battery (unlawful touching) on a patient.

Here’s the case:

Steven Alan Levin underwent surgery to remove a cataract in his right eye and have it replaced with an artificial lens at the U.S. Naval Hospital in Guam in March 2003.

Levin later said when the operation was performed, he had withdrawn his consent to treatment, but doctor's proceeded anyway. During the surgery, complications developed, and those complications -- and their remedies -- led to further pain and suffering and a multitude of follow up treatments.

In 2004 Levin had to undergo a corneal transplant to relieve the condition. He sued the doctor and the U.S. government for negligence and battery shortly thereafter.

The federal appeals court (9th Circuit) found that sovereign immunity applied even with regard to the battery claim.  But in the another case, the 10th Circuit found differently.  So now the U.S. Supremes get their hands on it.

Meanwhile, veterans receiving negligent medical care at VA hospitals have another kind rigmarole to go through, as illustrated by this case filed in federal court yesterday.  According to the Associated Press, 

Michael D. Nash of Louisville [KY] filed suit Tuesday in U.S. District Court in Louisville for what he calls medical malpractice.

Nash, who served in the Army in 1968 and 1969, went to the VA hospital in Lexington for medically necessary surgery on his penis. Nash’s attorney, Larry Jones of Jones Ward law firm in Louisville, said that after the procedure a nurse packed Nash’s groin in ice for 19 hours.

“It basically caused frostbite on his penis, which eventually caused gangrene,” Jones said. “In addition to robbing someone of their manhood, they’ve robbed him of the simple ability to urinate just like every other person who lives in this world.”

At first, Nash was prevented from suing, required to try to obtain compensation from the VA through the Federal Tort Claims Act.  However, the VA rejected his claim in July, finding “no negligence.”  When the VA rejects a claim like this, the patient can then sue in federal court.

Jones said the extent of Nash’s injuries are what prompted the lawsuit.

“If this was someone who had a little frostbite and a little burning for a couple of days, there would be no suit,” Jones said. “I would not wish this on my worst enemy.”

The Newest Energy Worker Hazard - Highway Crashes

This week, the House is set to vote on the National Defense Authorization Act (NDAA) – i.e., defense reauthorization for 2013.  There’s no shortage of controversy about this bill (indefinite military detentions anyone?) but provisions that would gut health and safety protections for workers at Department of Energy weapons sites clearly isn’t getting the same kind of attention.  

That's not unusual.  Except for coverage of the occasional national catastrophe, worker safety in this country’s ultra-hazardous energy industry isn't something to which enough people pay attention.  So we’ll thank the New York Times today for its enormous front page story about oil and gas industry workers. As dangerous as the work itself is, workers – many of whom are not unionized - are being killed in new ways you can’t even believe.  Specifically:

Over the past decade, more than 300 oil and gas workers … were killed in highway crashes, the largest cause of fatalities in the industry. Many of these deaths were due in part to oil field exemptions from highway safety rules that allow truckers to work longer hours than drivers in most other industries, according to safety and health experts.

Many oil field truckers say that while these exemptions help them earn more money, they are routinely used to pressure workers into driving after shifts that are 20 hours or longer.

And the problem is only getting worse.

According to federal officials, more than 200,000 new oil and gas wells will be drilled nationwide over the next decade. And the drilling technique used at more than 90 percent of these wells, known as hydraulic fracturing, or fracking, leads to far more trucks on the road — roughly 500 to 1,500 truck trips per well — than traditional drilling, partly because fracking requires millions of gallons of water per well.

The new drilling has been an economic boon to the country, adding millions of dollars in local tax revenues and royalty payments and creating hundreds of thousands of jobs, many of them providing high pay to unskilled laborers in areas with double-digit unemployment.

But the jobs are also hazardous, with fatality rates that are seven times the national average across all industries. Nearly a third of the 648 deaths of oil field workers from 2003 through 2008 were in highway crashes, according to the most recent data analyzed by the federal Centers for Disease Control and Prevention. By contrast, highway crashes caused roughly a fifth of workplace fatalities across all industries in 2010.

It’s not just that the Occupational Safety and Health Administration is under-resourced.  It’s that, according to one OSHA official, the law is terribly weak - specifically,

"[C]ompanies were not required to alert his agency when their truckers crashed on public roads. Nor do they have to inform his agency when drilling starts, making timely inspections difficult.”

By contrast, mining companies are required to alert the federal Mine Safety and Health Administration about new sites. While there are far fewer active oil and gas drilling sites in the country than underground and surface mining sites, more drilling industry workers than miners typically die each year.

What's more, driver fatigue is only part of the problem. 

Oil and gas workers also crash because their trucks are frequently in disrepair, the police say. … Oil service companies also often circumvent highway safety rules. …

In March, the Government Accountability Office criticized federal highway regulators for their failure to detect commercial truckers — widely known as “chameleon carriers” — that use shell companies to get around safety rules.

Even if you’re not an oil/gas worker, you need to care about this because - just guessing - you’ve probably shared the road with a large truck at some point in your life. 

The Private Hell of Military Contractor Employees

This week, it’s “Mission Accomplished” for private military contractors in Iraq and Afghanistan.  No silly, not actual military accomplishments.  (Fool me twice, shame on me, right?)  This has to do with what’s apparently the other mission of these private miliary contractors – to mistreat their workers. 

This week, ProPublica reports that “private contractors injured while working for the U.S. government in Iraq and Afghanistan filed a class action lawsuit” against private contracting companies and their insurers for refusing their medical treatment and disability payments.  They say that in order to boost profits, companies like insurers AIG and contractor KBR “routinely lied, cheated and threatened injured workers, while ignoring a federal law requiring compensation for such employees.” (See the earlier investigation by ProPublica, the Los Angeles Times and ABC’s 20/20). 

Hundreds of thousands of civilians working for federal contractors have been deployed to war zones to deliver mail, cook meals and act as security guards for U.S. soldiers and diplomats. As of June 2011, more than 53,000 civilians have filed claims for injuries in the war zones. Almost 2,500 contract employees have been killed, according to figures kept by the Department of Labor, which oversees the system.

And speaking of KBR, this week a federal judge slammed KBR’s revolting attempt to force Jamie Leigh Jones to pay them $2 million in attorneys fees after Jamie failed to win her rape case against one of her KBR co-workers in Iraq.  She lost even though she was unconscious (due to drugs or alchohol, what’s the difference?) during a sexual encounter that her alleged attacker says was “consensual.”  (Sound familiar?)  However, although the judge clearly didn’t want to do it, he was forced by statute to order her to pay KBR $150,000 in court costs.  He stated in his order, “The fact that Jones presented prima facie claims of sexual harassment and hostile work environment highlights the impropriety of an award of attorneys’ fees in this case.”  Of course, the hostile work environment for women at this company could hardly be more clear but the jury never heard about it.  And you wonder why she lost? 

So after assassinating her character and getting away with not having to defend itself for what they put Jamie and other women through (check out the film Hot Coffee for more about Jamie when the DVD comes out in November), KBR and its corporate lawyers now want her to pay them money.  This is reprehensible on so many levels, but we like how Gawker put it:

In July, Jamie Leigh Jones lost her federal civil trial against KBR—one of America's most capable government contractors—when a Houston jury determined that her coworkers had never drugged, raped, and shoved her into a shipping container. Or maybe they had, but she'd been asking for it—you know, like KBR said.

Originally KBR had asked for $2 million from Jones, an IT worker whose claim stemmed from an incident that allegedly took place in Baghdad in 2005 (you can find the complaint here). But the presiding judge dropped attorneys fees from her bill, so now all she owes is $145,073.19—money she reportedly does not have, this being America. (I bet you $145,073 that KBR would quibble over the 19 cents.)...

[This is] the result of KBR taking advantage of its right under the federal Civil Rights Act to collect from Jones. However, the company could have decided against pursuing the costs (because they're already super-loaded), or possibly sought to recoup them from the government (because having taxpayers foot the bill for corporations is how we do business).

Sending Good Thoughts to Jamie Leigh Jones

When Margaret Mead famously said “Never doubt that a small group of thoughtful, committed, citizens can change the world. Indeed, it is the only thing that ever has,” I’m sure even she couldn’t have envisioned a young woman named Jamie Leigh Jones.  As a 20-year-old, Jamie experienced some of the worst horrors one could imagine but rather than cower in the corner feeling helpless and defeated, she has used that experience to change the world. 

After a 6-year battle, Jamie’s lawsuit finally has begun (with opening statements today) against military contractor KBR, a former Halliburton subsidiary.  As we’ve noted here before, Jamie filed suit for a 2005 gang-rape and other horrendous acts committed against her by the company and some of its employees while she was working in Iraq. The company’s response was to try to keep her out of court entirely, claiming:

... Jones signed an agreement that required all of her work-related claims to be resolved through private arbitration.

The Jones suit has long been viewed as a test case regarding the reach of workplace arbitration clauses.  ...

The Fifth Circuit in 2009 ruled that Jones can pursue her case in court, concluding that her rape allegations “do not touch matters related to her employment.” ...

“Jamie has waited six years to have her day in court and she’s happy to finally talk to a jury,” her attorney, Lannie Kelly, told AP.

By never giving up, Jamie's case has not only advanced the important cause of employees' legal rights, but has also

[H]elped put an intense spotlight on the behavior of military contractors overseas, as numerous other women accused KBR employees of sexual assault. Jones’ story eventually led to congressional hearings. ...

Since the organization was established, 42 alleged sexual assault or rape victims associated with or employed by KBR have come forward ...

Kelly also is representing a former KBR employee, Anna Mayo, a 27-year old Austin woman who says she was beaten, choked unconscious and raped at a KBR barrack in Balad, Iraq, last November.

But Jamie has achieved even more. “Due in part to Jones’ case, federal lawmakers in 2009 approved a measure prohibiting contractors and subcontractors that receive $1 million in funds from the Department of Defense from requiring employees to resolve sexual assault allegations and other claims through arbitration.”  

And believe it or not, it doesn’t stop there.  Jamie has also set up a foundation “dedicated to helping United States citizens and legal residents who are victims of crime while working abroad for government contractors and subcontractors.”

Jamie’s courageous story is featured in the new documentary Hot Coffee, which airs on HBO June 27. The film, which we’ve been covering here at ThePopTort, has been getting wonderful recognition, most recently winning the Grand Jury prize at the Seattle International Film Festival. 

You can see a glimpse of Jamie in the trailer, below.  All good thoughts going out to her today.

Military Contractor Immunity – And You Wonder Why the Deficit is High?

From burn pits to gang rapes to crashing planes into mountains during joy rides, there seems to be absolutely no limit to the unlawful behavior of military contractors in Iraq and Afghanistan (not to mention the Gulf of Mexico). 

Now, thanks to Oregon Congressman Earl Blumenauer, we’ve learned something else.  These companies have somehow gotten the Pentagon to pick up the tab for all of this wrongdoing.  So, while it’s “get out of jail free” for them, it’s “pay up” for you, U.S. taxpayer.  (Deficit reduction commission, are you paying attention to this??) 

U.S. Rep. Blumenauer has just released a bunch of documents, and along with additional investigations from The Oregonian, we now learn that:

More than 120 military contracts include indemnification clauses -- essentially, promises that the Pentagon will pick up the tab if contractors are sued the total cost of soldiers' claims against the contractor could exceed $150 million. The information was disclosed on Thursday in response to an inquiry by Rep. Earl Blumenauer (D-Ore.), who was concerned that contractor Kellogg Brown Root was granted indemnity amid a lawsuit claiming that the Halliburton subsidiary knowingly exposed soldiers to cancer-causing chemicals in Iraq, as previously reported by The Huffington Post.

The list of contractors include major airlines American, Continental and United, as well as military contractors Raytheon Missile Systems, General Dynamics, L3, Lockheed Martin, BAE, and Boeing. Other indemnified companies include Mason and Hanger, a company which stores and transports containers of the nerve agent VX, and several firms that maintain facilities to destroy chemical agents.

The Oregonian reports,

A deposition filed last summer in U.S. District Court in Portland revealed that on the eve of the Iraq invasion, a KBR attorney won a secret clause ensuring that U.S. taxpayers, and not KBR, would pay in the event of any death or injury. In September, Democratic Reps. Blumenauer and Kurt Schrader, and Sens. Ron Wyden and Jeff Merkley introduced a bill in both houses to boost congressional oversight of defense contracts.
 …
Blumenauer said he remained concerned that "KBR's contract may be much more loosely drawn, removing incentives for the contractor to behave responsibly and exposing taxpayers to enormous liability. Taxpayers should not be on the hook for KBR's reckless actions that exposed our National Guard troops to harm."

About 82 percent of the Pentagon's current budget goes to contractors and grants, along with 83 percent of the State Department's and 99 percent of USAID's net operation costs. Every federal contract and grant needs to be managed, she said, yet the government currently lacks the capacity for appropriate oversight.

Allison Stanger, a political science professor at Middlebury College in Vermont and author of "One Nation Under Contract, the Outsourcing of American Power and the Future of Foreign Policy," said most Americans don't realize the transformation that has taken place in their government.

"Contractors are doing the functions government used to do but are not bound by the same rules and ethics," Stanger said. "When you privatize government functions and you don't talk about the unintended consequences, you're in very dangerous and uncharted territory."

(Photo courtesy of Halliburton Watch.)

Halliburton's Cement Failures

If you go down the list of Halliburton’s misdeeds at the website Halliburton Watch, there’s more than enough to be concerned about.  Fraud, bribery, waste, abuse, faulty work and war profiteering at the company once led by Dick Cheney.  (For even more, see The Daily Show's 2007 take, below!)  There’s also the Jamie Leigh Jones gang rape case involving the company, which we’ve covered many times.) 

You can also find lots of posts about Halliburton’s role in the Deepwater Horizon explosion, but most people haven’t heard much about it.  That’s about to change.

Today, the National Commission on the BP Deepwater Horizon Oil Spill released its “first official finding of responsibility for the blowout” and found, “Halliburton and BP knew weeks before the fatal explosion of the Macondo well in the Gulf of Mexico that the cement mixture they planned to use to seal the bottom of the well was unstable but still went ahead with the job.”  (Full report here.)

Moreover, “if the cement had done its job and kept the highly pressured oil and gas out of the well bore, there would not have been an accident.”

Bloomberg writes, “Halliburton and BP both had results in March showing that a very similar foam slurry design to the one actually pumped at the Macondo well would be unstable, but neither acted upon that data,” according to a letter sent to the commissioners from the panel’s chief counsel Fred Bartlit and other staff members. … Hearings will be held on these preliminary findings in Washington on November 8 and 9."

Of course, as the New York Times points out, “even if the cement failed on the BP well, it was not the whole story of the accident. Many human and mechanical failures combined to create the disaster, he said, and backup systems were skipped or ignored.”

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Where Fred Phelps Belongs

You may have heard about the very serious case argued yesterday before the U.S. Supreme Court. It stems from a jury verdict won by Albert Snyder, the father of a Marine killed in Iraq, against the hateful loon Fred Phelps and his batty family (including, sadly, small children).  Phelps and family picketed the funeral of Mr. Snyder's son, Lance Cpl. Matthew Snyder with signs like "Thank God for Dead Soldiers" and "God Hates the USA."

Fred Phelps runs a “church,” which is a thinly disguised anti-gay hate group. This “church” made a name for itself picketing the funerals of people who may or may not be gay, holding ubiquitous “God Hates Fags” signs.  They were out in force at the funeral of murdered college student Matthew Shepard.  In fact, this photo shows them protesting at the Virginia Holocaust Museum in March.

Actually, Lance Cpl. Matthew Snyder was not gay, but the Phelps family protested his funeral “to express their view that U.S. deaths in Afghanistan and Iraq are God's punishment for American immorality and tolerance of homosexuality and abortion. The church also posted a poem on its website that assailed Snyder and his ex-wife for the way they brought up Matthew.” 

So you can understand why Mr. Snyder sued.  In fact, he “won an $11 million verdict against the church for intentional infliction of emotional distress, among other claims.”  But “a judge reduced the award to $5 million, then the federal appeals court in Richmond, Va., threw out the verdict altogether as barred by the church's First Amendment rights.”

I know, this is serious stuff.  As we've noted before, the civil justice system can be a powerful weapon against hate groups.  But in this case, the First Amendment may win out and then what?  Well, as our founding fathers clearly contemplated, the very best way to combat deeply offensive and hateful speech is not with censorship but with more speech.  And it doesn't need to be hateful.  Humor  - if you can find it – is often the best way to go, as folks in this photo found, here.  On that note, I’d like to present a classic Michael Moore TV piece, from the show The Awful Truth,  which helps put Fred Phelps and his family in, let's say, a more appropriate context.  Comments, welcome!