                              PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                             No. 13-1430


In re: KBR, INCORPORATED, Burn Pit Litigation

--------------------------

ALAN METZGAR; PAUL PARKER; RICHARD RONALD GUILMETTE;
WILLIAM G. BRISTER, JR.; HENRY J. O'NEILL; MICHAEL AUW;
CORY CASALEGNO; MICHAEL DOUGLAS MOORE; DAVID U. LACKEY;
RANDALL L. ROBINSON; DEAN GUY OLSON; ALBERT PAUL BITTEL,
III; FRED ROBERT ATKINSON, JR.; ROBYN SACHS, personal
representative of Christopher Sachs, deceased; JENNIFER
MONTIJO; STEPHEN FLOWERS; JOANNE OCHS; MELISSA OCHS; JAMES
MORGAN; DAVID NEWTON; CHRIS BOGGIANO; EARL CHAVIS; BENNY
LYLE REYNOLDS; JOSHUA ELLER; ROBERT CAIN; CRAIG HENRY;
FRANCIS JAEGER; DAVID MCMENOMY; MARK POSZ; EL KEVIN SAR;
SMSgt. GLEN S. MASSMAN; SSgt. WENDY L. MCBREAIRTY; PABLO
BERCHINI; BRIAN P. ROBINSON; MAURICE CALLUE; DENNIS WAYNE
BRIGGS; EDWARD LEE BUQUO; WAYNE E. FABOZZI; SHARLENE S.
JAGGERNAUTH; FLOYD JAMES JOHNSON, SR.; TAMRA C. JOHNSON;
RICHARD   LEE   KEITH;   DANIEL  SANTIAGO   MORALES;  PHILLIP
MCQUILLAN; ILDEBBRANDO PEREZ; LUIGI ANTONIO PROVENZA; RUTH
ANN REECE; EDUARDO SAAVEDRA, SR.; JILL R. WILKINS, personal
representative of Kevin E. Wilkins, deceased; MICHAEL
DONNELL WILLIAMS; JERMAINE LYNELL WRIGHT; EDWARD ADAMS;
KENNETH BALDWIN; DONNA WU; JOHN DOES 1−1000; JANE DOES
1−1000; WALLACE MCNABB; KEVIN PAUL ROBBINS; BRIAN BLUMLINE;
ROBERT BIDINGER; UNKNOWN PARTIES; BENJAMIN BOEKE; CRAIG
KERVIN;   BARRY   ZABIELINSKI;  DAVID   GREEN;   NICK  DANIEL
HEISLER; DERROL A. TURNER; VINCENT C. MOSELEY; ALEX HARLEY;
JOHN A. WESTER, JR.; BILL JACK CARLISLE, JR.; ANTHONY
EDWARD ROLES; MARCOS BARRANCO; JOEL LUGO; SHAWN THOMAS
SHERIDAN; JAYSON WILLIAMS; EUNICE RAMIREZ; LEE WARREN
JELLISON, JR.; GEORGE LUNDY; THOMAS KELLECK; DAN BOWLDS;
TONY ALLEN GOUCKENOUR; JOHN WILLIAM JACKSON; JOHN PETE
TROOST; DEBORAH ANN WHEELOCK; CHARLES HICKS; SEAN ALEXANDER
STOUGH; JEFFREY MORGAN COX; JAMES WARREN GARLAND; DANNY
LAPIERRE; KENNETH HARRIS; ANTHONY JEROME WILLIAMS; KATHY
VINES; PATRICK CASSIDY; WILLIAM BARRY DUTTON; CHRISTOPHER
MICHAEL KOZEL; RICHARD MCANDREW; LORENZO PEREZ; JESSEY
JOSEPH PHILIP BACA; DANIEL TIJERNIA; HEINZ ALEX DISCH;
JAMES MCCOLLEM; TRAVIS FIDELL PUGH; ANTHONY RAY JOHNSON;
DAVID MICHAEL ROHMFELD; JOSHUA DAVID BEAVERS; MATTHEW JOEL
FIELDS; STEVEN E. GARDNER; STEPHEN R. JONES; KEVIN SCOTT
TEWES; HANS NICOLAS YU; THOMAS OLSON; BRIAN PAULUS; PAUL
MICHAEL WIATR; MICHAEL FOTH; BRETT ANTHONY MAZZARA; LISA
ROUNDS, Personal representative of Andrew Ray Rounds,
deceased; DAVID ROUNDS, Personal representative of Andrew
Ray   Rounds,  deceased;   PETER   BLUMER;   SCOTT  ANDREW
CHAMBERLAIN; TIMOTHY E. DIMON; WILLIAM PHILIP KRAWCZYK,
SR.; SEAN JOHNSON; SHERRY BISHOP, Individually and as
representative of the estate of Kirk A. Bishop; GENE
BISHOP; PATRICK BISHOP; ALBERT JOHNSON, JR.; DAVID JOBES;
GENE LEONARD MATSON; TIMOTHY J. WATSON; ANDREW MASON;
MICHELLE BROWN; JONATHAN LYNN; CHARLES KINNEY; MICHAEL
MCCLAIN; BASIL SALEM; JUSTIN GONZALES; MATTHEW GUTHERY;
CHRISTOPHER LIPPARD; DAVID PARR; JOHN F. MONAHAN; AMANDA
BRANNON; L. CHANDLER BRANNON, and all others similarly
situated

                  Plaintiffs - Appellants,

            v.

KBR, INCORPORATED; KELLOGG BROWN & ROOT, LLC; HALLIBURTON
COMPANY; KELLOGG BROWN & ROOT SERVICES, INCORPORATED; BROWN
AND ROOT SERVICES; DII INDUSTRIES, LLC; HALLIBURTON ENERGY
SERVICES, INC.; KBR HOLDINGS, LLC; KELLOGG BROWN & ROOT,
INCORPORATED;   KELLOGG   BROWN    &   ROOT   INTERNATIONAL,
INCORPORATED; KBR GROUP HOLDINGS INCORPORATED; KBR TECHNICAL
SERVICES, INCORPORATED,

                  Defendants – Appellees,

            and

ERKA LTD,

                  Defendant.




                                   2
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:09-md-02083-RWT, 8:09-cv-00744-RWT, 8:09-cv-02739-RWT, 8:09-
cv-02740-RWT,   8:09-cv-02741-RWT,  8:09-cv-02742-RWT,  8:09-cv-
02743-RWT, 8:09-cv-02744-RWT, 8:09-cv-02745-RWT, 8:09-cv-02746-
RWT, 8:09-cv-02747-RWT, 8:09-cv-02748-RWT, 8:09-cv-02749-RWT,
8:09-cv-02750-RWT, 8:09-cv-02979-RWT, 8:09-cv-02980-RWT, 8:09-
cv-02981-RWT,   8:09-cv-02982-RWT,  8:09-cv-02983-RWT,  8:09-cv-
02984-RWT, 8:09-cv-02985-RWT, 8:09-cv-02986-RWT, 8:09-cv-02987-
RWT, 8:09-cv-03299-RWT, 8:09-cv-03300-RWT, 8:09-cv-03301-RWT,
8:09-cv-03302-RWT, 8:09-cv-03303-RWT, 8:09-cv-03304-RWT, 8:09-
cv-03305-RWT,   8:09-cv-03306-RWT,  8:09-cv-03307-RWT,  8:09-cv-
03308-RWT, 8:09-cv-03309-RWT, 8:09-cv-03310-RWT, 8:09-cv-03311-
RWT, 8:09-cv-03312-RWT, 8:09-cv-03313-RWT, 8:09-cv-03314-RWT,
8:09-cv-03315-RWT, 8:09-cv-03316-RWT, 8:10-cv-00388-RWT, 8:10-
cv-00389-RWT,   8:10-cv-00390-RWT,  8:10-cv-00814-RWT,  8:10-cv-
00815-RWT, 8:10-cv-00836-RWT, 8:10-cv-01160-RWT, 8:11-cv-00336-
RWT, 8:11-cv-00337-RWT, 8:11-cv-00338-RWT, 8:11-cv-01092-RWT,
8:11-cv-02634-RWT, 8:11-cv-02635-RWT, 8:11-cv-03292-RWT, 8:11-
cv-03542-RWT, 8:12-cv-03070-RWT)


Argued:   October 30, 2013               Decided:   March 6, 2014


Before DIAZ and FLOYD, Circuit Judges, and Joseph F. ANDERSON,
Jr., United States District Judge for the District of South
Carolina, sitting by designation.


Vacated and remanded by published opinion.     Judge Floyd wrote
the opinion, in which Judge Diaz and Judge Anderson have joined.


ARGUED: Susan L. Burke, BURKE PLLC, Washington, D.C., for
Appellants.   Robert A. Matthews, MCKENNA LONG & ALDRIDGE LLP,
Washington, D.C., for Appellees.       ON BRIEF: Joseph Rice,
Frederick C. Baker, James W. Ledlie, MOTLEY & RICE, LLP, Mt.
Pleasant, South Carolina, for Appellants.    Raymond B. Biagini,
Daniel L. Russell, Jr., Shannon G. Konn, MCKENNA LONG & ALDRIDGE
LLP, Washington, D.C., for Appellees.




                               3
FLOYD, Circuit Judge:

      Since the United States began its military operations in

Afghanistan and Iraq in 2001 and 2003, respectively, its use of

private       contractors          to     support      its        mission       has    risen    to

“unprecedented levels.”                  Comm’n on Wartime Contracting in Iraq

and Afghanistan,              At What Risk?                Correcting Over-Reliance on

Contractors in Contingency Operations 1 (Feb. 24, 2011) (laying

out the findings of a bipartisan congressional commission).                                     At

times, the number of contract employees has exceeded the number

of    military        personnel         alongside          whom     they       work    in     these

warzones.       Id.        Courts—including this Court—have struggled with

how     to     treat       these    contractors            under        the     current      legal

framework,       which      protects       government         actors          but    not    private

contractors from lawsuits in some cases.                                See, e.g., Boyle v.

United       Techs.    Corp.,      487    U.S.       500    (1988);       Harris      v.    Kellogg

Brown & Root Servs., Inc., 724 F.3d 458 (3d Cir. 2013); Taylor

v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402 (4th Cir.

2011);       Saleh    v.    Titan       Corp.,    580      F.3d     1     (D.C.      Cir.   2009);

Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271

(11th    Cir.        2009).        This    case       requires       us    to       make    another

contribution to this changing legal landscape.

        Appellees are companies that contracted with the United

States government to provide certain services at military bases


                                                 4
in   Iraq     and    Afghanistan,       including         waste    disposal    and    water

treatment.          Appellants       contend       that   they    suffered     harm     as   a

result of the contractors’ waste disposal and water treatment

practices and brought state tort and contract claims to seek

redress for their alleged injuries.                        Prior to discovery, the

district court dismissed Appellants’ claims, holding that (1)

the claims were nonjusticiable, (2) the contractors were immune

from suit, and (3) federal law preempted the state tort laws

underlying      Appellants’          claims.         Because      the   district      court

lacked the information necessary to dismiss Appellants’ claims

on   these    bases,     we    vacate    the       district      court’s     decision    and

remand this case for further proceedings consistent with this

opinion.



                                           I.

       The Army contracted with Appellees KBR, Inc.; Kellogg Brown

& Root LLC; Kellogg Brown & Root Services, Inc.; and Halliburton

(collectively,         KBR)     to     provide        waste       disposal     and    water

treatment services on military bases in Iraq and Afghanistan.

In fifty-eight separate complaints, Appellants—the majority of

whom    are     United        States    military          personnel—(Servicemembers)

brought various state tort and contract claims, including the

following      causes    of     action:            negligence;      battery;    nuisance;

negligent      and    intentional        infliction         of    emotional     distress;

                                               5
willful       and     wanton     conduct;       negligent        hiring,     training,         and

supervision; breach of duty to warn; breach of contract; and

wrongful death.              Many of the pending cases are purported class

actions.        The Servicemembers contend that they suffered injuries

as   a       result    of     KBR’s     waste         disposal     and     water     treatment

practices.            According       to    the       Servicemembers,       these     injuries

occurred        because       KBR     “violated         military     directives          in     its

performance of waste disposal and water treatment services” and

breached LOGCAP III—its contract with the government.

     “LOGCAP” stands for “Logistics Civil Augmentation Program.”

Under        that     program,       which    the       Army     established        in        1985,

“civilian contractors [may] perform selected services in wartime

to augment Army forces” and “release military units for other

missions or fill shortfalls.”                     Army Reg. 700-137, at 1-1 (Dec.

16, 1985).           On December 14, 2001, the Army awarded the LOGCAP

III contract to KBR.                 LOGCAP III is a ten-year contract that

governs a wide array of services on military bases in Iraq,

Afghanistan,          Kuwait,       Djibouti,      Jordan,       Kenya,    Uzbekistan,         and

Georgia, including waste disposal, water treatment, and other

vital        services.         The    military         executes     LOGCAP     III       through

various       “task    orders”       that    incorporate         “statements        of    work,”

which define KBR’s responsibilities.

        In     their     First       Amended          Complaint,     the     Servicemembers

contend       that     KBR    violated       LOGCAP      III’s     waste    management         and

                                                  6
water    treatment       components    in        two    major    ways.        First,       the

Servicemembers allege that KBR failed to properly handle and

incinerate waste by “burn[ing] vast quantities of unsorted waste

in enormous open air burn pits with no safety controls” from

2003 to the present.          They aver that the burned waste included

trucks, tires, rubber, batteries, Styrofoam, metals, petroleum,

chemicals,     medical     waste,     biohazard         materials,      human      remains,

asbestos, and hundreds of thousands of plastic water bottles.                                A

report   that      the   Department     of       Defense    presented         to   Congress

identifies many of these items as “prohibited from burning.”

Dep’t of Defense, Report to Congress on the Use of Open-Air Burn

Pits    by   the   United    States     Armed          Forces    6    (Apr.   28,      2010).

According to the Servicemembers, the smoke from these burn pits

contained     “carcinogens      and     respiratory             sensitizers        .   .    .,

creating a severe health hazard [and] potentially causing both

acute and chronic health problems.”                     Second, the Servicemembers

contend that KBR provided contaminated water to military forces.

Specifically, they argue that KBR did not perform water quality

tests or ensure that water contained proper levels of chlorine

residual.

       On October 16, 2009, the Judicial Panel on Multidistrict

Litigation      transferred    all     of        the    cases    to    the    District      of

Maryland for consolidated pretrial proceedings.                          KBR filed its

first motion to dismiss for lack of subject matter jurisdiction

                                             7
under Federal Rule of Civil Procedure 12(b)(1) on January 29,

2010.       KBR       argued     that     (1)   the    Servicemembers’         claims   are

nonjusticiable under the political question doctrine; (2) KBR is

entitled       to     “derivative         sovereign         immunity”     based    on   the

“discretionary function” exception to the federal government’s

waiver of immunity in the Federal Tort Claims Act (FTCA), 28

U.S.C. §§ 1346(b), 2671 et seq.; and (3) the FTCA’s “combatant

activities” exception preempts the state tort laws underlying

the Servicemembers’ claims.                  The district court denied the first

motion to dismiss without prejudice, concluding that it did not

have enough information to decide whether to dismiss for lack of

subject matter jurisdiction.                    See In re KBR, Inc., Burn Pit

Litig. (Burn Pit I), 736 F. Supp. 2d 954, 957 (D. Md. 2010).

The court found that the political question doctrine, derivative

sovereign immunity, and the combatant activities exception did

not     compel      dismissal        based      on    the     facts     alleged    in   the

complaint.          However, due to its concern about unleashing “the

full    fury     of      unlimited      discovery”      on    “government      contractors

operating in war zones,” the court asked the parties to submit a

joint discovery plan for limited jurisdictional discovery.                              Id.

at 979.

       On   December         10,     2010,      the   district         court   stayed   the

proceedings         in    this     case    in   light       of   the    Fourth    Circuit’s

pending decisions in Al-Quraishi v. L-3 Services, Inc., 657 F.3d

                                                8
201 (4th Cir. 2011), Al Shimari v. CACI International, Inc., 658

F.3d 413 (4th Cir. 2011), and Taylor v. Kellogg Brown & Root

Services, Inc., 658 F.3d 402.                   This Court ultimately dismissed

Al-Quraishi and Al Shimari after a rehearing en banc because the

cases     were     not   subject       to     interlocutory           appeal      under     the

collateral order doctrine.               See Al Shimari v. CACI Int’l, Inc.,

679 F.3d 205 (4th Cir. 2012) (en banc).                         Taylor concerns how to

treat     military       contractors          under       the        political       question

doctrine.

      Following the resolution of these appeals and before any

jurisdictional discovery took place, KBR filed a renewed motion

to    dismiss      for   lack    of     subject       matter         jurisdiction.          KBR

appended     twenty-three        new    exhibits         to    the    renewed     motion     to

dismiss, and the Servicemembers appended two new declarations

from military officials to their opposition to KBR’s motion.                                 In

light   of    Taylor,      briefs      that    the    United         States   filed    in    Al

Shimari      and   Saleh    v.    Titan       Corp.,      and    the       Supreme    Court’s

decision     in    Filarsky      v.    Delia,      132    S.    Ct.    1657    (2012),      the

district court granted KBR’s motion to dismiss.                                 In re KBR,

Inc., Burn Pit Litig. (Burn Pit II), 925 F. Supp. 2d 752, 772-73

(D.   Md.    2013).        The   court      held     that      the    political      question

doctrine,        derivative      sovereign         immunity,         and    the    combatant

activities exception each provided a basis on which to dismiss

the Servicemembers’ claims.

                                              9
     The Servicemembers now appeal, contending that the district

court     erred    in   granting     the    motion       to    dismiss.         We   have

jurisdiction pursuant to 28 U.S.C. § 1291.



                                           II.

     On appeal from a motion to dismiss under Federal Rule of

Civil   Procedure       12(b)(1),    “[w]e       review       the    district    court’s

factual findings with respect to jurisdiction for clear error

and the legal conclusion that flows therefrom de novo.”                          Velasco

v. Gov’t of Indon., 370 F.3d 392, 398 (4th Cir. 2004).                          “[W]hen

a defendant challenges subject matter jurisdiction via a Rule

12(b)(1) motion to dismiss, the district court may regard the

pleadings     as    mere   evidence     on       the    issue       and   may   consider

evidence outside the pleadings without converting the proceeding

to one for summary judgment.”               Id.; see also Williams v. United

States, 50 F.3d 299, 304 (4th Cir. 1995) (noting that “the court

may consider the evidence beyond the scope of the pleadings to

resolve    factual      disputes    concerning         jurisdiction”).          However,

“when the jurisdictional facts are inextricably intertwined with

those central to the merits, the [district] court should resolve

the relevant factual disputes only after appropriate discovery.”

Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).




                                           10
                                      III.

               A.    Political Question Doctrine Background

       We turn first to KBR’s argument that the political question

doctrine renders the Servicemembers’ claims nonjusticiable.                      A

claim presents a political question when the responsibility for

resolving it belongs to the legislative or executive branches

rather than to the judiciary.             See Baker v. Carr, 369 U.S. 186,

210 (1962) (“The nonjusticiability of a political question is

primarily     a     function   of   the   separation      of   powers.”).     The

political question doctrine prevents the courts from encroaching

on issues that the Constitution assigns to these other branches

or that the judiciary is ill-equipped to decide.                    See id. at

217.     However, in determining whether the questions that this

case presents belong to another branch of government, we remain

mindful of the fact that “[i]t is emphatically the province and

duty   of    the    judicial   department      to   say   what   the    law   is.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

       “[M]ost military decisions lie solely within the purview of

the executive branch.”          Taylor, 658 F.3d at 407 n.9.             As this

Court explained in Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir.

2012),      “the    Constitution    delegates       authority    over   military

affairs to Congress and to the President as Commander in Chief.

It contemplates no comparable role for the judiciary. . . .

[J]udicial review of military decisions would stray from the

                                          11
traditional      subjects      of    judicial      competence.”         Id.       at   548.

However, “acting under orders of the military does not, in and

of itself, insulate the claim from judicial review.”                              Taylor,

658 F.3d at 411.           Therefore, although cases involving military

decision making often fall in the political question box, we

cannot categorize such a case as nonjusticiable without delving

into the circumstances at issue.

      The Supreme Court announced a six-factor test for assessing

whether a claim poses a political question in Baker v. Carr.

Pursuant to Baker, cases involving political questions evince

(1) “a textually demonstrable constitutional commitment of the

issue   to   a    coordinate     political        department,”    (2)      “a     lack   of

judicially discoverable and manageable standards for resolving”

the   issue,      (3)   “the     impossibility       of    deciding       [the     issue]

without an initial policy determination of a kind clearly for

nonjudicial      discretion,”        (4)   “the    impossibility      of      a   court’s

undertaking       independent        resolution      [of    the     issue]        without

expressing       lack   of     the   respect      due   coordinate        branches       of

government,” (5) an “unusual need for unquestioning adherence to

a political decision already made,” or (6) “the potentiality of

embarrassment       from       multifarious        pronouncements         by      various

departments on one question.”              Id. at 217.

      This     Court    considered         whether      examining     a     government

contractor’s actions can invoke a political question in Taylor.

                                           12
In     doing     so,    the        Court     adapted     Baker   to     the     government

contractor context through a new two-factor test.                               Under the

Taylor       test,     we    first     consider     “the     extent     to    which    [the

government contractor] was under the military’s control.”                              658

F.3d    at     411.     Second,       we     evaluate    “whether     national    defense

interests were closely intertwined with the military’s decisions

governing [the government contractor’s] conduct.”                         Id.     Pursuant

to the second factor, the political question doctrine renders a

claim nonjusticiable if deciding the issue “would require the

judiciary to question ‘actual, sensitive judgments made by the

military,’” which can occur even if the government contractor is

“nearly insulated from direct military control.”                             Id. (quoting

Taylor v. Kellogg Brown & Root Servs., Inc., No. 2:09cv341, 2010

WL 1707530, at *5 (E.D. Va. Apr. 19, 2010)).                          In evaluating the

Taylor factors, we “look beyond the complaint, [and] consider []

how [the Servicemembers] might prove [their] claim[s] and how

KBR would defend.”               Id. at 409 (first and second alterations in

original) (quoting Lane v. Halliburton, 529 F.3d 548, 565 (5th

Cir. 2008)) (internal quotation marks omitted).

       In    Taylor,        this     Court    determined     whether     the    political

question doctrine barred a Marine’s negligence suit against a

government contractor.               The Marine—Peter Taylor—was electrocuted

and suffered severe injuries when the government contractor’s

employee       turned       on   a   generator      at   a   military    base     in   Iraq

                                               13
despite Marine Corps’ instructions not to do so.                              Id. at 404.

When    considering     the   first     factor,         the      Court    held     that    the

government     contractor     was     not        under      the    military’s       control

because its contract specified that “the contractor shall have

exclusive      supervisory      authority              and        responsibility          over

employees.”      Id.    at    411   (internal          quotation         marks     omitted).

However, when considering the second Taylor factor, the Court

explained      that       assessing          the         government           contractor’s

contributory    negligence      defense          would      require      it   to    evaluate

Taylor’s conduct and certain military decisions, such as the

military’s choice to employ a generator.                          Id. at 411-12.           The

Court     therefore      determined          that        “an       analysis        of     [the

contractor’s] contributory negligence defense would ‘invariably

require the Court to decide whether . . . the Marines made a

reasonable     decision.’”          Id.     at        411    (second      alteration       in

original)      (quoting       Taylor,        2010           WL     1707530,        at     *6).

Accordingly, based on the second factor alone, this Court opted

to affirm the district court’s decision to dismiss the case.

Id. at 412.         The Court’s analysis suggests that, if a case

satisfies     either     factor,      it         is    nonjusticiable            under     the

political question doctrine.

       Although the Court evaluated Taylor’s claim under the new

two-factor     test,    it    did     not        ignore      the     traditional         Baker

analysis.      In   a   footnote,      the        Court      noted    that    considering

                                            14
whether the Marines’ actions contributed to Taylor’s injuries

“would run afoul of the second and fourth Baker factors”:

       Here, we have no discoverable and manageable standards
       for evaluating how electric power is supplied to a
       military base in a combat theatre or who should be
       authorized to work on the generators supplying that
       power. Furthermore, any such judicial assessment
       thereof would show a lack of respect for the executive
       branch.

Id. n.13.       The Court added this analysis so it could compare the

factual       scenario     at        issue     in    Taylor     to    the    circumstances

underlying this Court’s earlier decision in Tiffany v. United

States, 931 F.2d 271 (4th Cir. 1991)—a case that utilized the

Baker factors.           This comparison simply bolstered the decision

that   the     Court     had    already        reached    using      the    new   two-factor

test; the Court did not rely on a Baker-style analysis to arrive

at its conclusion.              We therefore proceed with our analysis in

this case using only the Taylor test.



                          B.     “Military Control” Factor

       The    district      court       concluded        that    both       Taylor    factors

counseled      in   favor        of     finding      that     the    political       question

doctrine      rendered         the    Servicemembers’           claims      nonjusticiable.

With   respect      to    the    first        Taylor   factor,       the    district    court

found that the military made the decision to use burn pits and

chose where to locate them.                    Burn Pit II, 925 F. Supp. 2d at

761-62    &    n.14.       The        court    based     this    determination        on   the

                                                15
declarations of various military officers and civilians and a

letter from General David Petraeus, which states, “There is and

will continue to be a need for burn pits during contingency

operations.”         Id. at 762 (internal quotation marks omitted).

The court also found that the military controlled water supply

operations      in       Iraq    and    Afghanistan,        a    determination         it     made

based on the declarations of two military officers and two Army

publications.            Id.     at    762-63.       Finally,         the    court    concluded

that, contrary to the contract at issue in Taylor, LOGCAP III

and certain task orders related to burn pits and water treatment

“demonstrate[d] pervasive and plenary military control” over the

functions at issue in this case.                        Id. at 764.             The district

court therefore held that the first Taylor factor “weigh[ed]

heavily in favor of dismissing the[] cases.”                           Id.

       The    Servicemembers             object        to       the     district        court’s

conclusion      that       the    military       controlled       KBR        and,    therefore,

contend that this case does not satisfy the first Taylor factor.

With   regard       to    the    burn    pit     component       of    their        claims,   the

Servicemembers aver that the record contains evidence indicating

that the military decided to use a burn pit at only a single

military      base:             Camp     Taji     in    Iraq.           Accordingly,           the

Servicemembers           argue    that    any    other      surface         burning    occurred

without      military          authorization.          The      Servicemembers          further

contend      that        the     Overseas       Environmental           Baseline       Guidance

                                                16
Document    supports      their     argument    because       it     specifies      that

“[o]pen burning will not be the regular method of solid waste

disposal.”          Dep’t      of    Defense,         DoD     4715.5-G,          Overseas

Environmental Baseline Guidance Document ¶ C7.3.14 (March 2000).

     According       to   a    report   that     the    Department         of    Defense

presented    to    Congress,      open-air     burn    pits    are    an    acceptable

method of waste disposal on military bases.                     Dep’t of Defense,

Report to Congress on the Use of Open-Air Burn Pits by the

United States Armed Forces 4 (Apr. 28, 2010).                             However, the

report makes clear that burn pits are not the preferred method

of waste disposal, and the military should utilize them only

after   exhausting        other      options,     such        as     landfills        and

incinerators.       Id.   In any event, “the decision to use burn pits

in deployed operations is retained at operational command level,

based on local conditions and in accordance with higher level

guidance.”        Id. at 4-5 (footnotes omitted).                  The report notes

that “[t]he operational commander shall develop and approve a

solid waste management plan for the contingency operation,” and

“[t]he use of open-air burn pits shall not be allowed unless

included within this plan.”             Id. at 5 n.5 (internal quotation

marks   omitted).         An    “operational      commander”         is    the    senior

commander of a Joint Task Force or deployed force.                    Id.

     Various task orders associated with LOGCAP III mesh with

the report’s description of surface burning as a waste disposal

                                        17
method that the military authorized but discouraged.                            Iraq Task

Orders 139 and 159 specifically mention “surface burning” as a

permitted method of waste disposal, although these task orders

allow    KBR   to    engage     in   surface       burning     only   “[u]pon         formal

notification”        and    indicate     that      surface     burning     is    not    the

preferred method of waste disposal.                    Afghanistan Task Order 13

places certain limitations on “[t]rash burning,” and Afghanistan

Task Orders 14 and 98 specify that KBR “shall provide trash pick

up and disposal service,” including “the operation of a burn

pit.”     Pursuant         to   Afghanistan        Task    Order    113,     KBR      “shall

operate and maintain the burn pit . . . until provision of a[n]

. . . incinerator.”             Iraq Task Orders 116, 118, and 145 and

Afghanistan Task Order 97 direct KBR to perform general waste

management tasks but do not specifically mention surface burning

or burn pits.

     Declarations from various military officials and civilians

indicate that the military decided what method of waste disposal

to use on bases in Iraq and Afghanistan.                       Major Tara Hall, who

served   as    the    Army’s     Chief   of       Preventive      Medicine      and    Force

Health    Protection       Officer     for    the     Multi-National         Corps-Iraq,

stated that “the Army decided which method of waste disposal to

use at military bases in Iraq.                KBR did not decide which methods

of   waste      disposal        were     appropriate         in     the      contingency

environment     of     Iraq.”        According        to   Gerald     E.     Vincent,     a

                                             18
civilian who served as Environmental Program Manager for the

Multi-National Corps-Iraq, “the U.S. military made the decisions

about which method of waste disposal to use at each base camp in

Iraq    .   .   .    .      When    appropriate,         . . .        KBR    personnel        would

provide input in the decision[-]making process leading to the

decisions about which method of waste disposal would be used.”

Dr.    R.   Craig         Postlewaite,        Acting      Director          of   Force       Health

Protection          and    Readiness          Programs        and     Director          of    Force

Readiness       and       Health       Assurance,        explained          that    “the      U.S.

military,       as    a    matter      of    policy     and    doctrine,         decides      which

methods of waste disposal, e.g., burn pits or incinerators, to

use at military camps in such war theaters, including Iraq and

Afghanistan.”             He    went    on    to     state     that       “the   U.S.    military

decides where to locate burn pits at such camps” and “[t]he U.S.

military also controls what items or substances may be disposed

of in burn pits at military camps in these theaters of war.”                                     In

sum, this evidence indicates that the military allowed the use

of burn pits and decided whether, when, and how to utilize them.

       Although          some    evidence          demonstrates           that   the     military

exercised        control         over        KBR’s      burn     pit        activities,         the

Servicemembers presented evidence—which the district court did

not    discuss—contradicting                this    picture.          A    military      guidance

document regarding LOGCAP, which the Servicemembers appended to

their memorandum in opposition to KBR’s first motion to dismiss,

                                                   19
explains that a statement of work “is a description of the work

that is to be performed.           It details who, what, when and where

but not ‘how’.”         U.S. Army, LOGCAP 101 Working with LOGCAP in

SWA (Draft) 13.        The same document goes on to explain that the

military “do[esn’t] tell the LOGCAP Contractor[s] how to perform

the Mission; [it] just tell[s] them what the end result has to

be.”    Id. at 14.      The Servicemembers provided declarations that

support this account.            Patrick Perkinson, a former Hazardous

Materials     and    Safety   Supervisor        for    KBR,      explained     in    his

declaration that “KBR, not the military, was responsible for

choosing the location of the burn pits” at Camp Diamondback in

Iraq.    In his declaration, KBR’s former Corporate Environmental

Manager,     Lee     Lasiter,      stated      that        KBR     “was    exclusively

responsible    for     operating    burn      pits    in    Iraq    and    Afghanistan

[and] for management of wastes generated in the performance of

the LOGCAP contract.”            Declarants Rick Lambeth, Sylvester L.

Aleong, David Jobes, Claude Jordy, and Ronald Smith each made

similar statements regarding KBR’s operational control over the

burn pits at various military bases.

       The   evidence     that     KBR   submitted          also     speaks    to     the

military’s control over water treatment at bases in Iraq and

Afghanistan.        Pursuant to Iraq Task Orders 59, 89, 139, and 159

and    Afghanistan     Task   Orders     116    and    118,      KBR      “install[ed],

operate[d]     and     maintain[ed]      potable       and       non-potable        water

                                         20
systems.”      Afghanistan      Task    Orders       13   and   97     direct     KBR    to

“produce, distribute, and store potable/non-potable water,” and

Afghanistan    Task   Orders     14    and     98    require     KBR      to    “produce,

distribute,    and    dispose    of     potable       and    non-potable          water.”

According to Major Sueann O. Ramsey, who served as the Chief of

Preventive Medicine for the Multi-National Corps-Iraq,

      The military had oversight over the provision of water
      services at base camps within Iraq. Technical medical
      bulletins provided the basic standards and testing
      methodologies that governed the provision of potable
      and non-potable water services.         [Multi-National
      Corps-Iraq] policies provided detailed specifications
      for   military  and   contractor  personnel   who  were
      authorized to provide water services in Iraq.

Colonel Steven W. Swann, who served as Commander of the 30th

Medical Brigade and Corps Surgeon for the Multi-National Corps-

Iraq,   similarly     explained        that,    “[i]n       Iraq,        the    Army    had

oversight regarding the testing, production, and distribution of

potable and nonpotable water at base camps.                     Preventive Medicine

detachments regularly tested the water to ensure that the water

was safe for soldiers and other personnel at the base camps.”

Accordingly, this evidence suggests that, although the military

delegated many water treatment functions to KBR, the military

oversaw water treatment in Iraq and Afghanistan to some degree.

      To gauge whether the military’s control over KBR rose to

the level necessary to implicate the political question doctrine

in   this   case,   we—like    the     Taylor       Court—look      to    the    Eleventh


                                         21
Circuit’s       decision     in     Carmichael         v.   Kellogg,      Brown    &     Root

Services, Inc.          In Carmichael, the Eleventh Circuit considered

whether the political question doctrine barred a negligence suit

against a government contractor and its employee.                             572 F.3d at

1275.        The employee was driving a truck in a military convoy

transporting fuel in Iraq.             Id. at 1278.             When the truck rolled

over,   the     plaintiff     was    seriously         injured,       leaving    him     in   a

permanent vegetative state.                Id.        The Eleventh Circuit agreed

with the district court’s conclusion that the plaintiff’s suit

would    “require      reexamination        of    many      sensitive     judgments       and

decisions entrusted to the military in a time of war.”                                 Id. at

1281.        Specifically,        pursuant       to   the    Army     Field     Manual    and

various task orders, the military decided the date and time of

the convoy’s departure, the speed of travel, the route, how much

fuel    to    transport,     the    number       of    trucks    in    the    convoy,     the

distance      between      vehicles,       and    what      security     measures        were

necessary.       Id.    The court characterized this level of military

involvement as “plenary control” warranting application of the

political question doctrine.               Id. at 1276; see id. at 1281-83.

       At this point in the litigation, it does not appear that

the military’s control over KBR’s burn pit and water treatment

tasks    rose    to    the   level    of    the       military’s      control     over    the

convoy in Carmichael.             In fact, based on the current record, the

case at hand more closely resembles the situation in Harris v.

                                             22
Kellogg Brown & Root Services, Inc.                In Harris, which we discuss

in more detail below, the Third Circuit applied a test very

similar to the Taylor test to determine whether the political

question doctrine barred a plaintiff’s claims against a military

contractor.     The court explained that “where the military does

not exercise control but merely provides the contractor with

general guidelines that can be satisfied at the contractor’s

discretion, contractor actions taken within that discretion do

not necessarily implicate unreviewable military decisions.”                        724

F.3d at 467.       The court concluded that the military did not

exercise control over the contractor because the military did

not provide detailed instructions regarding how to complete work

orders or get involved in the contractor’s assignments.                    Id.

      Similarly,   in   this     case,    the      military    guidance    document

that the Servicemembers provided suggests that the military told

KBR what goals to achieve but not how to achieve them.                     The task

orders demonstrate that the military delegated trash disposal

and water treatment functions to KBR, but they do not establish

whether the military directed these tasks.                    Only one declarant

indicated that the military decided where to locate burn pits

and   determined   what    substances         to     dispose    of   via    surface

burning.      Several   other    declarations—including           some     that    KBR

provided—demonstrate      that    the    military      chose    which     method    of

waste disposal to use, but they do not indicate whether the

                                         23
military told KBR how to implement that method.                          Furthermore,

although     two    declarants     stated       that   the    military      controlled

water testing in Iraq, neither declarant spoke regarding water

treatment     in        Afghanistan,    which    is    also   at    issue    in     this

litigation.         In    short,   although     the    evidence    shows     that    the

military exercised some level of oversight over KBR’s burn pit

and water treatment activities, we simply need more evidence to

determine whether KBR or the military chose how to carry out

these tasks.        We therefore cannot determine whether the military

control factor renders this case nonjusticiable at this time.



                   C.    “National Defense Interests” Factor

     We now turn to the second Taylor factor:                     “whether national

defense interests were closely intertwined with the military’s

decisions governing KBR’s conduct.”                   658 F.3d at 411.        As part

of this analysis, we consider whether the Servicemembers’ claims

or   KBR’s    defenses        require    us     to     question    the     military’s

judgments.     See id.         When considering the second Taylor factor,

the district court noted that KBR “assert[ed] that [its] conduct

was reasonable because the United States Military determined the

method of waste disposal, determined burn pit logistics, and

determined water control operations.”                  Burn Pit II,      925 F. Supp

2d at 765.         The district court also explained that KBR planned

to raise a causation defense alleging that the military—not KBR—

                                          24
caused the Servicemembers’ injuries. 1                     Id.     According to KBR,

this       defense   would          “require    the   [c]ourt     to   scrutinize       the

military’s environmental testing efforts and its contemporaneous

conclusions that burn pits posed no long-term health problems.”

Id.    Because these considerations suggested that “[t]he actions

complained of [were] not ones taken by [KBR] alone” and “KBR’s

defense[]       .    .        .    would    necessarily   require      review     of     the

reasonableness            of       military    decisions,”       the   district        court

concluded that the second Taylor factor indicated that this case

was nonjusticiable.                 Id. at 765-66.        The court therefore held

that the political question doctrine prevented it from reaching

the merits of the case.                Id.

       Regarding the second Taylor factor, the case at hand is

somewhat similar to the circumstances at issue in Taylor itself.

As it did in Taylor, KBR counters the Servicemembers’ claims by

arguing that the military’s decisions—not KBR’s actions—led to

the Servicemembers’ injuries.                  See Taylor, 658 F.3d at 405, 407.

As KBR explained in its memorandum in support of its renewed

motion to dismiss in this case, “[t]he substantial record before

this       [c]ourt       is       replete    with   evidence,     including     military


       1
       The district court also stated that KBR planned to raise a
contributory negligence defense. See Burn Pit II, 925 F. Supp.
2d at 765. However, as we explain below, it is more appropriate
to characterize KBR’s argument as a causation defense.



                                               25
declarations         and       government       documents,          that    supports          KBR’s

liability    defense           that    [the   Servicemembers’]             alleged      injuries

were   caused    by    military         decisions          and    conduct,    not      by     KBR.”

However, unlike the contributory negligence defense at issue in

Taylor,     analyzing           KBR’s     defense          in     this     case       would     not

“invariably      require         the    Court       to   decide      whether      .    .    .   the

[military]      made       a    reasonable         decision.”         Id.    at    411      (first

alteration      in    original)         (emphasis          added)    (internal         quotation

marks omitted).            Rather than characterizing its argument as a

contributory negligence defense, KBR’s memorandum in support of

its renewed motion to dismiss labels its theory a “proximate

causation” defense. 2            This causation defense simply requires the

district     court         to    decide       if     the        military    made       decisions

regarding (1) whether to use, how to use, and where to locate

burn pits and (2) how to conduct water treatment.                              KBR’s defense

therefore does not necessarily require the district court to

evaluate the propriety of these judgments. 3


       2
       Even if KBR were to re-plead contributory negligence,
thereby possibly requiring the district court to question the
military’s decision making when it evaluates the Servicemembers’
negligence   claims,  this   defense   would  not   affect   the
Servicemembers’ breach of contract claims.        The political
question doctrine would therefore not render the entire suit
nonjusticiable.
       3
        In its brief, KBR argues that the Servicemembers
indirectly question military judgments by contending that KBR
acted negligently because, according to KBR, the military


                                                26
      This case more closely resembles the Third Circuit’s recent

decision in Harris.        In that case, the court considered whether

the political question doctrine barred a suit against a military

contractor accused of negligently performing maintenance duties

and causing a soldier’s death.            724 F.3d at 463.           The contractor

raised   a    causation   defense      similar     to    KBR’s   defense      in    this

case,    contending      that    the     military       proximately        caused    the

soldier’s death through its maintenance actions.                       Id. at 474.

The   Third    Circuit    concluded       that     the     defense    required       the

evaluation of strategic military decisions only if the governing

law used a proportional-liability system that assigned liability

based    on   fault.       The    court        therefore    held     the     case    was

justiciable as long as the plaintiffs did not seek any relief

that implicated the proportional-liability system.                     Id. at 475.

For example, under a pure joint-and-several liability system,

the   plaintiffs    could       obtain    all     of    their    relief      from   the




actually made the decisions at issue in this case. However, at
this point in the litigation, it is unclear whether KBR or the
military made the allegedly negligent decisions.   Furthermore,
as we explain below, because KBR raises a causation defense
rather than a contributory negligence defense, the military’s
negligence becomes an issue only under a proportional-liability
system that assigns liability based on fault.



                                          27
military      contractor,             preventing       the        need       to     evaluate      the

military’s decisions. 4               Id. at 474.

      We     find        the     Harris       court’s    reasoning                persuasive      and

applicable         here.         KBR’s     causation     defense             does    not       require

evaluation         of    the   military’s        decision         making          unless    (1)    the

military caused the Servicemembers’ injuries, at least in part,

and   (2)     the        Servicemembers         invoke        a     proportional-liability

system that         allocates         liability       based       on    fault.           The   second

Taylor factor therefore does not necessarily counsel in favor of

nonjusticiability in this case.                       Because neither the first nor

the       second        Taylor     factor       currently              indicates         that      the

Servicemembers’           claims       are    nonjusticiable,             we      hold     that    the

political          question        doctrine       does        not        render       this        case

nonjusticiable           at    this    time     and    vacate          the   district          court’s

decision to dismiss the Servicemembers’ claims on that basis.



                                                IV.

      We turn next to the Servicemembers’ contention that the

district      court        erred      in     finding    that        KBR      was     entitled      to

      4
       This case involves complaints filed in forty-two different
states, so it is unclear which state’s (or states’) law will
ultimately apply.    Many states have limited joint-and-several
liability in tort actions. See Nancy C. Marcus, Phantom Parties
and Other Practical Problems with the Attempted Abolition of
Joint and Several Liability, 60 Ark. L. Rev. 437, 440 & n.14
(2007).



                                                28
immunity under the FTCA’s discretionary function exception. 5            As

a general matter, the United States is immune from suit unless

it waives that immunity.         See United States v. Mitchell, 445

U.S. 535, 538 (1980).         The United States waived its immunity

from tort suits under certain circumstances in the FTCA, see 28

U.S.C. § 2674, but that waiver is subject to certain exceptions,

see id. § 2680.        One of these exceptions is the “discretionary

function” exception, which renders the government immune from

“[a]ny claim . . . based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty

on   the   part   of   a   federal   agency   or   an   employee   of   the

     5
        The district court did not explicitly rely on the
discretionary function exeception in concluding that KBR was
immune from suit. Instead, the district court quoted a lengthy
passage from its Burn Pit I decision, in which “[t]his ground
for dismissal [derivative sovereign immunity] was described.”
925 F. Supp. 2d at 766. The passage discusses the discretionary
function exception. Id. at 766-67. In its appellate brief, KBR
does not rely on only the discretionary function exception to
support its immunity argument.       Instead, it contends that
“[t]here is no question that the U.S. military would be immune
from suits arising from the performance of these services under
a variety of exceptions to the FTCA, e.g., the discretionary
function, combatant activities, and foreign country exceptions.”
Although we focus on the discretionary function exception below,
the conclusion we reach regarding Yearsley v. W.A. Ross
Construction Co., 309 U.S. 18 (1940), applies regardless of
which   FTCA  provision   underpins   KBR’s  immunity  argument.
Specifically, as we discuss in detail below, Yearsley allows
government contractors to enjoy immunity from suit only if they
adhere to the terms of their contracts with the government, and
the record is not developed enough at this stage in the
litigation to allow us—or the district court—to determine
whether KBR satisfied this requirement.



                                     29
Government, whether or not the discretion involved be abused.”

Id. § 2680(a).    A discretionary function is one that “involves

an element of judgment or choice.”        Berkovitz ex rel. Berkovitz

v. United States, 486 U.S. 531, 536 (1988).

      The FTCA explicitly excludes independent contractors from

its scope.    See 28 U.S.C. § 2671.           Specifically, the statute

does not include government contractors in its definition of

“federal agency” or “employee of the government.”           Id.    (“[T]he

term ‘Federal agency’ . . . does not include any contractor with

the United States. . . . ‘Employee of the government’ includes

(1) officers or employees of any federal agency, members of the

military or naval forces of the United States, members of the

National Guard . . . , and persons acting on behalf of a federal

agency in an official capacity . . . and (2) any officer or

employee of a Federal public defender organization . . . .”).

The   discretionary   function   exception     includes   both    of    these

terms.

      Despite this language, KBR contends that it is entitled to

derivative   sovereign   immunity,    which   “protects   agents       of   the

sovereign from liability for carrying out the sovereign’s will.” 6


      6
        KBR argues that the FTCA’s discretionary function
exception entitles it to immunity, not that the provision
preempts the state tort laws underlying the Servicemembers’
claims.   In Boyle v. United Technologies Corp., 487 U.S. 500
(1988), which we discuss in more detail in Part V of this


                                     30
Al-Quraishi v. Nakhla, 728 F. Supp. 2d 702, 736 (D. Md. 2010),

rev’d on other grounds, Al-Quraishi v. L-3 Servs., Inc., 657

F.3d 201 (4th Cir. 2011), appeal dismissed, Al Shimari, 679 F.3d

205.      The concept of derivative sovereign immunity stems from

the     Supreme   Court’s    decision      in   Yearsley     v.   W.A.    Ross

Construction Co., 309 U.S. 18 (1940).           In that case, the Supreme

Court    considered   whether   a    private    contractor   could   be   held

liable for damage resulting from a construction project that

Congress authorized.        Id. at 19-20.        When the project caused

erosion    that   damaged   nearby   property,    the   injured    landowners

sued the contractors, claiming that they had effected a taking

of their property without just compensation.               Id.    The Supreme

Court explained that



opinion, the Supreme Court considered whether a military
contractor was liable under state tort law for an injury that
resulted from a design defect.   Id. at 502-03.  The Court held
that the case involved “uniquely federal interests.”     Id. at
505-06. The Court then explained that the FTCA’s discretionary
function exception “demonstrate[d] the potential for, and
suggest[ed] the outlines of, ‘significant conflict’ between the
federal interests and state law.”    Id. at 511.    In light of
these determinations, the Court crafted a test to ensure the
preemption of state laws that clashed with the federal interest
at play.   See id. at 512.    Although Boyle, like the case at
hand, drew on the discretionary function exception, the Supreme
Court specified that Boyle does not govern the question of
whether immunity extends to “nongovernment employees.”  See id.
at 505 n.1 (internal quotation marks omitted).     KBR asks for
derivative sovereign immunity rather than preemption under the
discretionary function exception in this case, thus rendering
Boyle inapposite.



                                      31
       it is clear that if this authority to carry out the
       project was validly conferred, that is, if what was
       done was within the constitutional power of Congress,
       there is no liability on the part of the contractor
       for executing its will. Where an agent or officer of
       the Government purporting to act on its behalf has
       been held to be liable for his conduct causing injury
       to another, the ground of liability has been found to
       be either that he exceeded his authority or that it
       was not validly conferred.

Id.    at     20-21    (citations       omitted).        In      other    words,   under

Yearsley, a government contractor is not subject to suit if (1)

the government authorized the contractor’s actions and (2) the

government        “validly    conferred”      that    authorization,        meaning     it

acted within its constitutional power.                  Id.      Applying this test,

the    Supreme       Court    determined      that    the     contractors       were   not

liable      for   damaging     the     plaintiffs’      land     because    they   acted

pursuant to Congress’s valid authorization.                      Id. at 21-22.

       Yearsley       does    not   explicitly       mention     sovereign      immunity.

In    fact,    the    Court    based    its   holding       on   the     fact   that   the

government had “impliedly promised to pay [just] compensation

[for any taking] and ha[d] afforded a remedy for its recovery.”

Id.    at   21.       Yearsley’s     ultimate        holding     is    therefore    quite

narrow:

       So, in the case of a taking by the Government of
       private property for public use such as petitioners
       allege here, it cannot be doubted that the remedy to
       obtain   compensation   from the  Government  is   as
       comprehensive as the requirement of the Constitution,
       and hence it excludes liability of the Government’s
       representatives lawfully acting on its behalf in
       relation to the taking.

                                           32
Id.    at     22.        Despite        this    narrow      holding,      this     Court     has

recognized, based on Yearsley, “that contractors and common law

agents       acting      within    the        scope   of    their      employment      for   the

United States have derivative sovereign immunity.”                                 Butters v.

Vance Int’l, Inc., 225 F.3d 462, 466 (4th Cir. 2000).                                        Our

sister circuits have reached similar conclusions.                                See Ackerson

v.    Bean    Dredging      LLC,        589    F.3d   196,      206-07    (5th    Cir.      2009)

(determining that the district court correctly dismissed claims

against a contractor when the plaintiff did not allege that the

contractor       exceeded         its    authority         or   that     Congress      did    not

validly confer such authority); McMahon v. Presidential Airways,

Inc., 502 F.3d 1331, 1343 (11th Cir. 2007) (acknowledging the

existence of derivative sovereign immunity and its origin in

Yearsley); Myers v. United States, 323 F.2d 580, 583 (9th Cir.

1963) (applying Yearsley and concluding that contractor was not

liable for work it performed pursuant to a federal contract).

       After        a    well-reasoned          discussion       in     Burn     Pit   I,    the

district court concluded that KBR was not entitled to derivative

sovereign immunity under Yearsley at that time because immunity

depended on whether KBR acted within the scope of its authority,

which    the     court      could       not     determine       at    that     point   in    the

litigation.             See 736 F. Supp. 2d at 968.                    The district court

reversed course in Burn Pit II, finding that the Supreme Court’s


                                                 33
2012     decision         in        Filarsky      v.        Delia     compelled          extending

derivative sovereign immunity to KBR.                           See 925 F. Supp. 2d at

767.        Specifically,              the    district      court     noted       that    Filarsky

cautioned        against          leaving        individuals          who     work       alongside

government employees “holding the bag—facing full liability for

actions taken in conjunction with government employees who enjoy

immunity for the same activity.”                       Filarsky, 132 S. Ct. at 1666;

Burn   Pit       II,    925       F.    Supp.    2d    at     767.      Therefore,            without

applying      the      law     to      the    facts    at     hand,    the    district          court

concluded        that    KBR        was      immune    from    suit     because          it    was    a

military contractor “performing services for the government in

war zones.”         Burn Pit II, 925 F. Supp. 2d at 767.

       In    Filarsky,            the       Supreme    Court     considered            whether       an

attorney      was      entitled         to    qualified       immunity       in    a     42    U.S.C.

§ 1983      action        when          he    assisted        government          employees          in

investigating           whether         a    firefighter       was    feigning         illness       to

avoid work.            132 S. Ct. at 1660-61.                 The Court determined that

the common law did not distinguish between government employees

and private actors serving the government in 1871, when Congress

enacted § 1983.              See id. at 1661-65.               Because Congress had not

expressed “clear legislative intent” contrary to the common law

treatment, the Court determined that qualified immunity was not

linked      to    whether         an    individual       was    a     full-time         government

employee.          Id.       at     1665     (internal       quotation       marks       omitted).

                                                  34
Instead, the relevant inquiry is whether a government employee

performing     the       same    action    would        be     entitled      to    qualified

immunity.          Id.          The    Court        then      turned    to    the      policy

justifications underlying qualified immunity to see if they also

counseled in favor of applying it to private actors assisting

government     employees.                Those        interests        are        “avoid[ing]

‘unwarranted timidity’ in performance of public duties, ensuring

that talented candidates are not deterred from public service,

and preventing harmful distractions from carrying out the work

of government that can often accompany damages suits.”                              Id.    The

Court determined that all of these interests supported extending

qualified immunity to the attorney.                    Id. at 1665-66.

      Contrary to the district court’s conclusion, there is no

indication that the Supreme Court intended Filarsky to overrule

Yearsley and its progeny.                 See Filarsky, 132 S. Ct. at 1669

(Sotomayor, J., concurring) (“[I]t does not follow that every

private individual who works for the government in some capacity

necessarily     may       claim       qualified       immunity     .    .     .    .      Such

individuals        must     satisfy       our        usual      test    for        conferring

immunity.”).       The Supreme Court framed the question presented in

Filarsky as “whether an individual hired by the government to do

its   work    is     prohibited         from        seeking    such    immunity        [under

§ 1983], solely because he works for the government on something

other than a permanent or full-time basis.”                       Id. at 1660.            After

                                               35
tracing    the   history       of   common    law   immunity   up    to   the   point

Congress enacted § 1983, the Court concluded “immunity under

§ 1983    should    not    vary      depending      on   whether     an   individual

working for the government does so as a full-time employee, or

on some other basis.”               Id. at 1662-65 (emphasis added).             The

opinion never mentions Yearsley, sovereign immunity, or the FTCA

and never purports to extend beyond § 1983 qualified immunity.

We therefore believe that the district court erred in concluding

that Filarsky compelled altering the conclusion that it reached

in Burn Pit I.

     We     interpret       Filarsky     as      reaffirming       the    principles

undergirding the Yearsley rule, albeit in the context of § 1983

qualified    immunity      rather     than    derivative    sovereign      immunity.

Like Filarsky, Yearsley recognizes that private employees can

perform the same functions as government employees and concludes

that they should receive immunity from suit when they perform

these functions.         Furthermore, Yearsley furthers the same policy

goals     that   the     Supreme     Court    emphasized     in     Filarsky.     By

rendering government contractors immune from suit when they act

within    the    scope    of    their   validly      conferred      authority,   the

Yearsley rule combats the “unwarranted timidity” that can arise

if employees fear that their actions will result in lawsuits.

Filarsky, 132 S. Ct. at 1665.                Similarly, affording immunity to

government contractors “ensur[es] that talented candidates are

                                         36
not deterred from public service” by minimizing the likelihood

that       their    government        work    will    expose     their     employer   to

litigation.          Id.     Finally, by extending sovereign immunity to

government         contractors,        the     Yearsley     rule    “prevent[s]       the

harmful distractions from carrying out the work of government

that can often accompany damages suits.”                   Id.

       We now turn to applying the Yearsley rule, which asks us to

consider whether the government authorized KBR’s actions in this

case. 7        As     this       Court       explained     in    Butters     v.   Vance

International, Inc., that inquiry involves determining whether

KBR “exceeded [its] authority under [its] valid contract,” which

the Court also characterized as exceeding “the scope of [its]

employment.”          225 F.3d at 466.             The parties debate whether we

should       construe      the    scope      of    KBR’s   authority       narrowly   or

broadly.           According     to   the     Servicemembers,      KBR   exceeded     its

authority in this case because it violated the specific terms of

LOGCAP III and other “government directives.”                       By contrast, KBR

takes a broader view, contending that it acted within the scope




       7
       The parties do not dispute that the military had the power
to delegate waste management and water treatment functions to a
government contractor.     We therefore need not consider the
component of the Yearsley analysis that asks whether “the
project was validly conferred, that is, if what was done was
within the constitutional power of Congress.”      Yearsley, 309
U.S. at 20-21.



                                              37
of   its   authority     by    performing     general   waste    management    and

water treatment functions. 8

      Yearsley supports the Servicemembers’ view.                  In Yearsley,

the Supreme Court emphasized that “[t]he Court of Appeals . . .

found it to be undisputed that the work which the contractor had

done . . . was all authorized and directed by the Government of

the United States.”           309 U.S. at 20 (emphasis added) (internal

quotation    marks      omitted).      This    language    suggests     that   the

contractor must adhere to the government’s instructions to enjoy

derivative       sovereign     immunity;     staying    within    the   thematic

umbrella    of    the   work    that   the    government   authorized     is   not

      8
       KBR suggests that a government contractor is entitled to
derivative sovereign immunity if it qualifies as a common law
agent of the government. Specifically, KBR cites an unpublished
decision from this Court, which explains that, under Virginia
law, “[w]hether an agent acted within the scope of his authority
turns not on whether the particular act at issue—often a tort
committed by the agent—is ‘within the scope of the agent’s
authority, but [on] whether the service itself in which the
tortious act was done was . . . within the scope of such
authority.’”   First Tenn. Bank Nat’l Ass’n v. St. Paul Fire &
Marine Ins. Co., 501 F. App’x 255, 260 (4th Cir. 2012) (second
and third alterations in original) (quoting Broaddus v. Standard
Drug Co., 179 S.E.2d 497, 503 (Va. 1971)). However, common law
agent status is not sufficient to establish derivative sovereign
immunity.    As the Eleventh Circuit reasoned in McMahon v.
Presidential Airways, Inc., if all common law agents of the
government enjoyed derivative sovereign immunity due to their
agency status, the immunity of the government and its officers
would be coextensive, which is not necessarily the case.     See
502 F.3d at 1343-45 & n.15.    Furthermore, as we explain below,
Yearsley itself supports our conclusion that simply being the
government’s common law agent does not entitle a contractor to
derivative sovereign immunity.



                                        38
enough to render the contractor’s activities “the act[s] of the

government.”      See id. at 22 (internal quotation marks omitted).

The Ninth Circuit similarly interpreted Yearsley in Myers v.

United    States.       In     that    case,      the    court    considered       whether

landowners could recover from a private company that damaged

their    property       while    constructing            a    road      pursuant     to    a

government contract.            See 323 F.2d at 580-82.                  The court held

that,    “[t]o    the     extent       that       the   work     performed      by     [the

contractor]      was    done    under       its   contract       with    the   Bureau      of

Public Lands, and in conformity with the terms of said contract,

no liability can be imposed upon it for any damages claimed to

have been suffered by the [landowners].”                     Id. at 583.       The court

went on to explain that, “[i]f [the landowners] suffered any

damage from any act of [the contractor] over and beyond acts

required to be performed by it under the contract, or acts not

in conformity with the terms of the contract,” the contractor

was not liable because the landowners consented to its actions.

Id.     In other words, when the contractor exceeded its authority

under    the   contract,       Yearsley       did    not     provide     the   basis      for

escaping       liability;        the         landowners’         acquiescence          did.

Accordingly,     as    Yearsley       and    Myers      show,    KBR    is   entitled      to

derivative sovereign immunity only if it adhered to the terms of

its contract with the government.



                                             39
       At    this     point    in       the    litigation,       the    record      does    not

contain      enough     evidence         to     determine       whether     KBR     acted    in

conformity with LOGCAP III, its appended task orders, and any

laws and regulations that the contract incorporates.                                   We also

lack      evidence     regarding         whether        the     military        permitted    or

required KBR to deviate from the contract’s terms under certain

circumstances.          Accordingly, we hold that the district court

erred in finding that KBR was entitled to derivative sovereign

immunity at this time and vacate the court’s decision to dismiss

the Servicemembers’ claims on that ground.

       We    also     note    that      the     district      court     did      not    address

whether KBR’s waste management and water treatment activities

constituted “discretionary functions” under the FTCA.                                  However,

as   we     explain    above,       a    discretionary          function        “involves    an

element of judgment or choice.”                      Berkovitz, 486 U.S. at 536.             If

the military dictated exactly how KBR should undertake its waste

management and water treatment tasks, those functions were not

discretionary         because       they       did    not     involve      an     element   of

judgment or choice.            By contrast, if KBR enjoyed some discretion

in how to perform its contractually authorized responsibilities,

the discretionary function exception would apply, and KBR could

be   liable.         The     district         court    should    conduct        this    inquiry

before      determining        whether         KBR     is     entitled     to      derivative

sovereign immunity under the discretionary function exception.

                                                40
                                      V.

     Finally, the Servicemembers contend that the district court

erred in finding that the FTCA’s combatant activities exception

preempted    the   state    tort 9   laws   undergirding   their     claims.

Pursuant    to   the   combatant     activities   exception,   the   United

States is immune from “[a]ny claim arising out of the combatant

activities of the military or naval forces, or the Coast Guard,

during time of war.”       28 U.S.C. § 2680(j).     The statute does not

define the terms “arising out of” and “combatant activities.”

    Relying on the Supreme Court’s decision in Boyle v. United

Technologies Corp., multiple circuit courts have held that the

federal interests inherent in the combatant activities exception

conflict with, and consequently can preempt, tort suits against

government contractors when those suits arise out of what those

courts viewed as combatant activities.             See Harris, 724 F.3d

    9
       We note that the Servicemembers bring breach of contract
claims in addition to their tort claims.     In general, “[t]he
FTCA does not apply to common law contract claims.”    Tritz v.
U.S. Postal Serv., 721 F.3d 1133, 1141 (9th Cir. 2013).
However, it may apply when a plaintiff brings a contract claim
seeking a tort remedy rather than a contract remedy such as
rescission. See id. Because the district court did not discuss
how the FTCA affects the Servicemembers’ breach of contract
claims, we decline to address this issue to allow the district
court to do so in the first instance on remand.     See Q Int’l
Courier, Inc. v. Smoak, 441 F.3d 214, 220 n.3 (4th Cir. 2006)
(“Although we are not precluded from addressing [questions the
district court did not reach], we deem it more appropriate to
allow the district court to consider them, if necessary, in the
first instance on remand.”).



                                      41
458; Saleh, 580 F.3d 1; Koohi v. United States, 976 F.2d 1328,

1336 (9th Cir. 1992).     The district court initially found that

the combatant activities exception did not preempt state law

because the record was not developed enough to assess whether

preemption was appropriate.     See Burn Pit I, 736 F. Supp. 2d at

976-78.     However, the district court once again reversed course

in Burn Pit II, holding that preemption was appropriate under a

test that the United States recommended in amicus briefs that it

filed in this Court’s rehearing en banc of Al Shimari and in

support of denying the petition for writ of certiorari in Saleh.

See Burn Pit II, 925 F. Supp. 2d at 769-72.

     Before we can reach the question of whether the combatant

activities exception preempts state tort law due to the United

States’ proposed test, we must first decide whether to apply the

United States’ test at all—an analytical step that the district

court skipped.     The Supreme Court’s Boyle decision governs this

inquiry.     Boyle arose when a Marine helicopter co-pilot died

after his helicopter crashed into the ocean during a training

exercise.    487 U.S. at 502.   Although the co-pilot survived the

crash, he could not open the helicopter’s escape hatch, causing

him to drown.      Id.   The co-pilot’s father sought to hold the

military contractor that built the helicopter liable under state

tort law, contending that it defectively repaired part of the



                                 42
helicopter’s flight control system and defectively designed the

escape hatch.     Id. at 502-03.    The Court explained,

      In most fields of activity, to be sure, this Court has
      refused to find federal pre-emption of state law in
      the absence of either a clear statutory prescription
      or a direct conflict between federal and state law.
      But we have held that a few areas, involving “uniquely
      federal   interests,”   are   so   committed   by   the
      Constitution and laws of the United States to federal
      control that state law is pre-empted and replaced,
      where   necessary,  by   federal  law   of   a  content
      prescribed (absent explicit statutory directive) by
      the courts-so-called “federal common law.”

Id.   at   504   (citations   omitted). 10   The    Court   then    analyzed

whether the situation at hand in that case invoked “uniquely

federal interests” in a way that warranted preemption.

      The Boyle Court employed a three-step process to determine

whether federal law preempted state law.            First, it identified

the “uniquely federal interests” at issue in that case.             See id.

at    504-07.      Second,    it   determined     whether   there    was   a

“significant conflict” between those interests and state law.

Id. at 507-12.       The Court identified the FTCA’s discretionary

function exception as “a statutory provision that demonstrates

the potential for, and suggests the outlines of, ‘significant

conflict’ between federal interests and state law.”           Id. at 511.

The    Court     then   explained     that      “‘second-guessing’     [the

      10
        This excerpt from Boyle makes clear that Congress need
not act affirmatively to cause the preemption of state law. The
Servicemembers’ arguments to this effect therefore lack merit.



                                     43
government’s      selection      of     a    helicopter     design]      through       state

tort suits against contractors would produce the same effect

sought to be avoided by the FTCA exemption” because government

contractors would raise their prices to compensate for possible

lawsuits, rendering the government financially liable.                             Id. at

511-12 (citation omitted).                   Third, the Court formulated a test

that   ensured     preemption      of       state    laws   that    clashed      with    the

federal interests at play.              See id. at 512-13.



                                              A.

       We now turn to the first step of the Boyle analysis.                              The

D.C.    Circuit,       Ninth    Circuit,        and     Third   Circuit        have     each

articulated a different “uniquely federal interest” underlying

cases in which a litigant attempts to hold a government actor

responsible      for    its    combatant       activities—in        other      words,    the

federal interest buttressing the combatant activities exception.

In Saleh, the D.C. Circuit began its inquiry by noting that,

although “[t]he legislative history of the combatant activities

exception is ‘singularly barren,’ . . . it is plain enough that

Congress   sought       to     exempt       combatant    activities       because       such

activities     ‘by     their     very       nature    should       be   free    from     the

hindrance of a possible damage suit.’”                      580 F.3d at 7 (quoting

Johnson v. United States, 170 F.2d 767, 769 (9th Cir. 1948)).

The court went on to explain that the “traditional rationales

                                              44
for tort law—deterrence of risk-taking behavior, compensation of

victims,   and   punishment     of    tortfeasors—are        singularly    out    of

place in combat situations, where risk-taking is the rule.”                      Id.

In light of these considerations, the D.C. Circuit determined

that “the policy embodied by the combatant activities exception

is simply the elimination of tort from the battlefield, both to

preempt state or foreign regulation of federal wartime conduct

and to free military commanders from the doubts and uncertainty

inherent in potential subjection to civil suit.”                 Id.      Based on

similar    considerations,      the     Ninth      Circuit     articulated       the

interest    underlying    the    combatant         activities     exception       as

“recogniz[ing]     that   during      wartime      encounters     no      duty   of

reasonable care is owed to those against whom force is directed

as a result of authorized military action.”                  Koohi, 976 F.2d at

1337.

     The   Third   Circuit    rejected      both    of   these   approaches       in

Harris.    The court noted that the FTCA limits the combatant

activities exception to “claim[s] arising out of . . . combatant

activities,” 28 U.S.C. § 2680(j) (emphasis added), and pointed

out that, in other areas of the law, “arising out of” “denote[s]

any causal connection.”         724 F.3d at 479 (quoting Saleh, 580

F.3d at 6) (internal quotation marks omitted).                 In light of this

“arising out of” language, the court concluded that the Ninth

Circuit’s formulation of the interest was too narrow because it

                                       45
rested on the premise that “no duty of reasonable care is owed

to those against whom force is directed,” Koohi, 976 F.2d at

1337 (emphasis added), which omits individuals who suffer harms

that flow tangentially from wartime force.                 See Harris, 724 F.3d

at     480.      The    court     cited   Saleh      favorably,    see    id.,   but

ultimately determined that the D.C. Circuit’s formulation of the

interest underlying the combatant activities exception was too

broad, id. at 480-81.             Specifically, the court explained that

the FTCA “does not provide immunity to nongovernmental actors.

So to say that Congress intended to eliminate all tort law is

too much.”       Id. at 480.       The Third Circuit therefore announced a

test    that    falls    between     these     two   extremes:      “The    purpose

underlying § 2680(j) . . . is to foreclose state regulation of

the military’s battlefield conduct and decisions.”                  Id.

       We find the Third Circuit’s analysis persuasive and adopt

its formulation of the interest at play here.                      In Boyle, the

Supreme       Court    reasoned    that   no    “uniquely    federal      interest”

warrants preemption when the federal government has little or no

control over a contractor’s conduct.                   See 487 U.S. at 509-10

(explaining that the government would have no interest in the

design of a helicopter door if it ordered stock helicopters that

just happened to have a certain door design).                    Due to Boyle and

the FTCA’s omission of government contractors, we agree that the

D.C. Circuit’s test is too broad because it does not limit the

                                          46
interest of “eliminat[ing] . . . tort from the battlefield” to

actors under military control.               See Saleh, 580 F.3d at 7.              We

also agree with the Third Circuit’s conclusion that the Ninth

Circuit’s test is too narrow because of the combatant activities

exception’s broad “arising out of” language.                  If the interest at

play were “recogniz[ing] that during wartime encounters no duty

of    reasonable   care   is    owed   to     those    against     whom    force    is

directed,” Koohi, 976 F.2d at 1337, the combatant activities

exception presumably would contain language limiting its scope

to claims stemming directly from the use of force.



                                        B.

       Now that we have identified the federal interest at play in

this case, we move on to the second step of the Boyle analysis:

determining whether there is a significant conflict between this

federal    interest   and      the   operation    of    the    state      tort   laws

underlying the Servicemembers’ claims.                In Boyle, this conflict

was    discrete    because      it   was     impossible       to    construct      the

helicopter according to the government’s design and satisfy the

state-imposed duty of care.            487 U.S. at 509.            However, in the

combatant    activities      exception       realm,     the    conflict     between




                                        47
federal   and     state   interests   is much   broader. 11     As   the    D.C.

Circuit explained in Saleh, “the relevant question is not so

much whether the substance of the federal duty is inconsistent

with a hypothetical duty imposed by the state.”               580 F.3d at 7.

Instead, when state tort law touches the military’s battlefield

conduct     and    decisions,    it   inevitably     conflicts       with   the

combatant     activity      exception’s    goal    of     eliminating       such

regulation of the military during wartime.              In other words, “the

federal government occupies the field when it comes to warfare,

and its interest in combat is always ‘precisely contrary’ to the

imposition of a non-federal tort duty.”            Id. (quoting Boyle, 487

U.S. at 500).




     11
       Although the conflict between federal interests and state
tort law is broad in the combatant activities exception context,
we can also identify several specific conflicts.     Notably, as
the Supreme Court recognized in Boyle, imposing tort liability
on contractors that carry out the government’s orders will
result in the contractor charging higher prices, a cost that the
taxpayers   will  ultimately   bear.     487  U.S.   at  511-12.
Furthermore, haling a government contractor into a court
proceeding that questions the military’s decision making will
distract government personnel from their tasks and allow
“judicial probing of the government’s wartime policies.” Saleh,
580 F.3d at 8.      Finally, “given the numerous criminal and
contractual enforcement options available to the government in
responding to alleged contractor misconduct[,] . . . allowance
of these claims will potentially interfere with the federal
government’s authority to punish and deter misconduct by its own
contractors.” Id.



                                      48
                                           C.

      Finally, we turn to Boyle’s third step:                 formulating a test

that ensures preemption when state tort laws conflict with the

interest   underlying      the    combatant       activities     exception.         See

Boyle, 487 U.S. at 512-13.            KBR argues in favor of both the test

the D.C. Circuit announced in Saleh and the test the United

States advocated in amicus briefs that it filed in connection

with Al Shimari. and the petition for writ of certiorari in

Saleh.     In Saleh, the D.C. Circuit articulated the following

test:     “During wartime, where a private service contractor is

integrated    into    combatant       activities     over   which      the    military

retains    command    authority,       a   tort    claim    arising     out    of   the

contractor’s engagement in such activities shall be preempted.”

580 F.3d at 9.        The court reasoned that the military need not

maintain “exclusive operational control” over the contractor for

the   government     to   have   an    interest     in   immunizing      a    military

operation from suit.         Id. at 8-9.          It therefore crafted a test

that allowed the contractor to exert “some limited influence

over an operation,” as long as the military “retain[ed] command

authority.”    Id.

      Alternatively, the United States recommends preemption when

(1) “a similar claim against the United States would be within

the combatant activities exception of the FTCA” and (2) “the

contractor    was    acting      within     the    scope    of   its    contractual

                                           49
relationship     with    the    federal        government       at    the    time    of    the

incident out of which the claim arose.”                      Brief of United States

as Amicus Curiae at 17-18, Al Shimari v. CACI Int’l, Inc., 679

F.3d 205 (4th Cir. 2012) (Nos. 09-1335, 10-1891, 10-1921).                                  In

the   amicus   brief     that      it   filed       in   Saleh,      the    United   States

identified     three    key     flaws     in     the      Saleh   test.        First,       it

explained      that,     “[u]nder       domestic          and     international           law,

civilian    contractors        engaged      in      authorized       activity       are   not

‘combatants’; they are ‘civilians accompanying the force’ and,

as such, cannot lawfully engage in ‘combat functions’ or ‘combat

operations.’”       Brief for United States as Amicus Curiae at 15,

Saleh v. Titan Corp., 131 S. Ct. 3055 (2011) (No. 09-1313).

Therefore, the United States argued that it was inappropriate

for   the   Saleh     test    to    focus      on    whether      the      contractor     was

engaged in combatant activities.                 Id.      Second, the United States

contended that the Saleh test does not account for the fact that

the   combatant        activities       exception          provides         immunity       for

activities “arising out of” the military’s combatant activities.

It claimed that “[a] more precise focus on claims ‘arising out

of’ the military’s combatant activities would allow for a more

accurate assessment of the contractor’s distinct role, and avoid

confusing it with the role of military personnel.”                             Id. at 16.

Third, the United States explained that the Saleh court “did not

address     whether     application         of      the     preemption        defense      it

                                            50
recognized would be appropriate if contractor employees acted

outside the scope of their employment or the contractor acted

outside the scope of the contract.”                   Id.      The United States

reiterated these arguments in the brief it filed in Al Shimari

and formulated the above test to address these defects.                               See

Brief of United States as Amicus Curiae at 16-20, Al Shimari,

679 F.3d 205 (Nos. 09-1335, 10-1891, 10-1921).

       In Burn Pit II, the district court favorably cited these

amicus briefs and adopted the United States’ test.                      925 F. Supp.

2d at 769-71.          However, the United States’ criticisms of the

Saleh    test    are   flawed   in    several     respects.       First,       even    if

government       contractors     cannot     qualify      as    “combatants”       under

domestic and international law, this fact is irrelevant because

the Saleh test does not require private actors to be combatants;

it     simply    requires   them      to    be    “integrated      into       combatant

activities.”       Saleh, 580 F.3d at 9; cf. Johnson, 170 F.2d at 770

(explaining that “combatant activities” suggests a “wider scope”

than    “combatant”).          Second,     the    United      States    inaccurately

contends    that    the   Saleh    test    does    not   reflect       the    combatant

activities exception’s use of the phrase “arising out of.”                             In

fact, the Saleh test does mirror this phrase, specifying that “a

tort     claim    arising   out      of    the    contractor’s      engagement        in

[combatant activities over which the military retains command

authority] shall be preempted.”                  580 F.3d at 9.              Third, the

                                           51
United States complains that the Saleh test does not address how

to    treat   contractors        who     act        outside      the     scope    of    their

employment or violate the terms of their contract.                           However, the

purpose of the combatant activities exception is not protecting

contractors      who   adhere     to   the     terms        of   their    contracts;         the

exception aims to “foreclose state regulation of the military’s

battlefield conduct and decisions.”                     Harris, 724 F.3d at 480.

By    focusing    on    whether    the     contractor            was    “integrated       into

combatant activities over which the military retain[ed] command

authority,” Saleh, 580 F.3d at 9, the Saleh test ensures that

the   FTCA    will     preempt    only    state        tort      laws    that     touch      the

military’s wartime decision making.                         We therefore reject the

rationales       underlying       the      United           States’       test—the        same

rationales     that     buttressed       the    district         court’s    Burn       Pit    II

decision.

       We agree with the Third Circuit’s determination that, if

the interest underpinning the combatant activities exception is

foreclosing      state    regulation           of     the     military’s         battlefield

conduct and decisions, the United States’ test is far too broad.

See Harris, 724 F.3d at 480-81.                 The test recommends preemption

when state tort laws touch any actions within the scope of the

contractor’s contractual relationship with the government, even

actions that the military did not authorize.                            In this way, the

United States’ test preempts state tort laws even when they do

                                           52
not conflict with the federal purpose underlying the combatant

activities exception.          To the contrary, the Saleh test allows

the preemption of state tort law only when it affects activities

stemming from military commands.               See id. (reaching the same

conclusions).       Due to the closer fit between the Saleh test and

the interest at play in this case, we adopt the Saleh test here.

       The Saleh test requires a contractor to be “integrated into

combatant activities” for preemption to occur.                       We therefore

must   determine     whether    waste   management       and    water   treatment

constitute    “combatant       activities”     when    these    tasks   occur    in

warzones.     In Johnson v. United States, the Ninth Circuit held

that combatant activities “include not only physical violence,

but activities both necessary to and in direct connection with

actual hostilities,” such as “supplying ammunition to fighting

vessels in a combat area during war.”                  170 F.2d at 770.         The

Third Circuit and at least one district court have adopted the

Johnson     test.     See   Harris,      724    F.3d    at     481   (maintaining

electrical systems on a military base in a warzone qualified as

combatant activity); Aiello v. Kellogg, Brown & Root Servs.,

Inc., 751 F. Supp. 2d 698, 711-12 (S.D.N.Y. 2011) (holding that

latrine maintenance constituted combatant activity because the

contractor “was providing basic life support services for active

military combatants on a forward operating base”).



                                        53
       We agree with the Johnson court’s reasoning and adopt its

test here.         As the Ninth Circuit explained, “‘[c]ombat’ connotes

physical violence; ‘combatant,’ its derivative, as used here,

connotes pertaining to actual hostilities; the phrase ‘combatant

activities,’ [is] of somewhat wider scope.”                          Johnson, 170 F.2d

at    770    (footnote       omitted).            It    therefore     makes        sense    for

combatant      activities        to     extend       beyond     engagement    in     physical

force.       Furthermore, viewing “combatant activities” through a

broader lens furthers the purpose of the combatant activities

exception.         If a government contractor remained subject to state

tort suits stemming from activities other than physical force,

the    Saleh       test      would        not     successfully       “foreclose            state

regulation of the military’s battlefield conduct and decisions,”

Harris,      724    F.3d    at     480,    which       could    encompass     conduct       and

decisions that do not involve actual combat.                           Performing waste

management         and     water      treatment        functions     to      aid     military

personnel in a combat area is undoubtedly “necessary to and in

direct connection with actual hostilities.”                          Johnson, 170 F.2d

at    770.     We        therefore      hold     that     KBR    engaged     in     combatant

activities under the Johnson test.

       Next, the Saleh test asks whether “the military retain[ed]

command      authority”          over     KBR’s        waste    management         and   water

treatment activities.                 580 F.3d at 9.             At this stage in the

litigation, although it is evident that the military controlled

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KBR to some degree, see supra Part III.B, the extent to which

KBR   was   integrated     into     the    military      chain   of   command    is

unclear.    See Saleh, 580 F.3d at 4 (identifying the proper focus

as “the chain of command and the degree of integration that, in

fact,    existed   between        the   military       and   [the]    contractors’

employees rather than the contract terms”).                   The district court

therefore erred in resolving this issue before discovery took

place.      Accordingly,     we    vacate       its   decision   to   dismiss   the

Servicemembers’ claims on the basis of preemption.



                                          VI.

      For the foregoing reasons, we vacate the district court’s

decision to dismiss the Servicemembers’ claims and remand for

further proceedings consistent with this opinion.

                                                             VACATED AND REMANDED




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