we want to welcome everyone or sort of this morning district court's decision reveals a series of clear errors and a misapplication of the law now obviously with this panel i need not belabor what that law is we have the supreme court jurisprudence in baker v car and then a certain set of very rare circumstances when a lawsuit against a private party not against the united states but when a lawsuit against a private party implicates military decision making that rare circumstance is found here i'm going to turn first a political question and then turn to the combat negativities preemption highlighting the course of the district court's decision let's look first at what the district court reasoned in terms of the servicemembers claim that they were harmed by k b r because k b r failed to follow the contractual directives by the military to refrain from burning hazardous material it was very clear yet we have alleged in our complaint that that's exactly what they did the court at minute there has not been that he was not ruling on the merits and that there has not been merits discovery on the breath of these contractual violations yet nonetheless the court precluded claims based on that misconduct i thought understood the this records statement to be that even if there were these isolated instances in which the contractors may not have complied with the strict letter of the contract that didn't overcome the fact that fact the military had extensive previous of control over the activities that were occurring in iraq and afghanistan what's the carmichael case you literally have military personnel interspersed with k b r and in very real time they are controlling the performance we are what i thought the whole purpose of having the contractors was to allow the military to be fighting tip of the spear not have to worry about well exactly your honor and that's what we have here here we have the situation that's a far cry from carmichael but which is in fact the norm in the conflict theaters and that is that the contractual control is by definition in direct contractual control here and the record is uniform that in fact in theater the contract mattered and that all the parties agreed yes it had to be in writing and all of the all of the direction given to k b r had to be sort of contract matter to the exclusion of military necessity military operations no military necessity and military operations led to the need of the military to make decisions once those military decisions were made they were not communicated directly to the contractor rather there is an entire set up that is done to protect military commanders they are not allowed to give direction right the good of the mission and he explains that that was done to protect any questions of impropriety and protect the commanders from any responsibility to have to give direction day to day direction to k b r employees all of the  all of them were fighters all of the operational command testified to exactly that general sanchez general vine both admit we cannot direct k b r what they have to do and what in fact that was done is that their intent their desires and what they needed for their operations were conveyed to their colleagues general mickey and the others in the contracting command and it was the role of the contracting command to put that in writing and get that off t those authorizations your honor they were done in eighteen instances so with respect to the use of service burning when we were here before the court last time we knew there was one instance in which case we are was authorized to surface burn and  go through those records what you find is yes indeed k b r did have permission to surface burn at eighteen locations so for those particular locations there is indeed a military decision that was made implemented through the contract command the ac of gave direction to k b r and they can surface burn their so at those eighteen locations as we press our claims as we further litigate the case and we are not going to and will they are not permitted to burn hazardous materials so even at the furthest out reaches of the military permission to burn there is this there is a condition on that burning and that condition is to not burn hazardous material now that the district court error is a matter of both fact and law by trying to sidestep that issue and by simply saying well our allegations are very well the first obviously we contest that because there is a whole panoply of victims specific affidavits on the record that we filed in response to the court's order but even more importantly analytically you cannot invoke the political question doctrine a separation of powers doctrine that stri this branch of the government from having the power you don't strip that from the courts by merely saying something's veg so the service member stand by all of our allegations at all a hundred and one thousand bases that k b r negligently bur have discretion the the what what was burned was not controlled by the government this is a far cry from the carmichael instance when you had the military right there and i would suggest your orders that think of a hypothetical that would fit political question that is an instance in which the military simply use contractors as soldiers they simply a supplement of their own staff and they operated a burn pit using full soldiers and k b employees working side by side that's not the facts here that's not the record here the record here is very clear k b r operated these burn pits completely divorced from any real time military involvement  well i guess the problem i have with that is you say that it would be ok if the military were completely integrated working side by side by these contractors but i go back to my initial question of the whole purpose of having these contractors was to make this  more seamless efficient operation and you're suggesting that exactly the opposite it becomes more bureaucratic warm mechanical more inefficient by virtue of the way you describe the process not at all your honor it actually becomes exactly what's needed which is that it frees the military up to to fight the war so in the instances when the military wants to have help what they do is they turn to the lockout they turn to contracting so that that mechanism of using the bureaucratic measures of using the written directives using the a c l that's the military's decision as to how it's best in their interests to go about obtaining logistical support so when we give deference to the military's decision we are deferring to their decision to stay out of direct and plenary control of contractors so stay far away from that and let k b r deal with it on its own in including even issuing quality reports quality assurance reports k b r not only had to manage itself it had to report back to the military on how well it was doing that entire contractual structure you may view it as inefficient and bureaucratic and not consistent with war fighting but the war fighters the military the people in charge of these decisions they're the ones that made those decisions your colleagues highlight the testimony of another one of the seemed to suggest the exact opposite in terms of what you depicted here that the military had complete and plenary control have made the decisions they used burn pits and suggest that that that's entirely consistent with jets titus's resolution of that issue here what is that are they citing first of all is the testimony accurate have they cited it accurately and how was it if at all inconsistent with the position that you're presenting here today if your honour's if it read the entirety  judged excuse me of general sanchez's testimony which i strongly encourage you to do as well as general vines what you will see is that there is a little bit of inconsistency within the testimony general sanchez testified quite clearly in support of required by baker of the car each particular burn pet and k b r role in that bird pet is all a matter of rent written official military record so there are indeed isolated instances in which the military made a decision on hours of operation not at all not at all one hundred and one thousand pets a kin to the way that the military in eighteen instances did decide that  use surface burning so the reality of that written record is that we need in second guessed any military decision we don't have to struggle to figure out whether general  r not what we have is a record that says listen the way k b r is indirectly control is through a contractual device through the a c e o that actually makes it easy to litigate the case because everything is right there in writing there's no need to second guess any military decisions there's not even a big debate about what those decisions are because they are all done formally they're all done through a writing issued by a c e o so for no ambiguity that the procurement law and the way in which it requires everything to be formal and everything in writing and everything to be done as a matter of straightforward contract with the creation of the contracting command is the record it is what was approved overwhelmingly by the record evidence and that is an important point and that is the discovery was important to prove it to prove that even in war zones the military made a decision to use what may strike us as somewhat wrong just titus got it wrong because he misapplied the law and he ignored the factual record and he didn't if you look at the his memorandum opinion what you'll see is he doesn't even a gauge with the reality of the contracting command conflate the two he ignores testimony from general von erich who says you know yes actually generals army of war fighter generals on occasion get carried away and they think they have this power i have to educate them that they don't and they backed down from page twenty six of the west lovers of the order it is relevant here that the military operational commanders and war zones did not give direct orders k b r and instead affection waited its orders by using the contracting command court is not realizing in that is that the political question is not invoked merely because there is a military decision it's only and vote when litigation requires evaluating the wisdom of that military decision so the reality here is that the court failed to follow his own analysis to a logical conclusion and fail to note that the intent to use surface burning only was formalized in the eighteen places but most importantly he failed to understand that the litigation is not so guessing any of the military decisions implemented through the contracting command we are able to litigate this case because there's an entire area all hundred in  evidence they fought to get were true to relying solely on the contract languages none of this ever happened these suits were properly dismissed under the political question doctrine as well as the combatant actives exception to the federal tort claims act and this court should money to brown the facts here confirm that the suit for correctly dismissed under question the overwhelming evidence on remain supports the district court's findings that the military control k b r making the key decisions eighteen or so that they say were actually authorized but is that correct that isn't correct your honor looking at authorization it's clear that general general sanchez made the or that burn pits would be used by k b r in the military and you had asked earlier about where that is in the record is j four eight five nine general sanchez clearly testified to that without limitation he said that he can't give a direct order to the contractors but no one here is claiming that he could his orders were passed to the contractors through the d c m as a conduit everyone agrees on the contracting process but here whether the type of waste disposal would be used whether it's going to be a berm or incinerator or recycling is a military decision that has to be made by the military because the military has to balance factors looking at operational logistical and safety concerns when you're calling suggests that there are limitations with respect to these burn pits at specified locations is she just and correct the record doesn't support that on the location it's undisputed that the military made all of those decisions and did not limit the locations to the eighteen or so that they say were actually authorized by some kind of written dictate or i believe that goes to the authorization issue what the plaintiffs are arguing as i understand is that there is paperwork shows that k b r had authority to operate eighteen bases but as the record in this case isn't limited to that paperwork the plaintiffs want to look only at the contract and say that's all that matters and ignore all the severance we have to look at where this decision starts it's made by operational commanders general sanchez made the decision i communicated to the contractors through the d c m a as a conduit i mean the the argument that the burn pits here run authorized is really it's not absolutely not supported by this record because we have a situation where burn pits were being operated in plain view of thousands of soldiers across two theaters of war the d c m a inspected the burn pit the d c m a evaluated k b r as were the military decided where the burn pit nine and then there were two such one task orders that also apply here and in the task order directed k b r to handle waste management now how that would be done was controlled by the military the military determine it will be done about bir military decision in k b r had absolutely no discretion to use incinerators the military made that decision in the military at some point later in the war did you put incinerators as some bases but that was dealt with the in general sanchez said he needed the transportation to do things like call ammunition it also implied a permanent presence in iraq that the military was trying to avoid those are all military decisions looking also at the operation of the burn his findings to say that the only evidence in this record is that k b r was authorized to operate eighteen bump it because general sanchez or in the task order applied to the entire theater of war the is a related allegation in this record that even if you're correct that certainly there was no authority to to burn some of the material that was actually burned that these hits including you know batteries and other items such as were toxic and dangerous what's your in two thousand and eleven in this case it was undisputed on this record that they're not based on personal knowledge they were never cited to the district court in response to the motion to dismiss there was a different set of declarations it was cited to the district court in response of the motion to dismiss plaintiffs abandon reliance on those the once they're citing now on appeal were found twenty eleven they're not based on personal knowledge they were not cited to the district court they're not even in the joint opinion that's the evidence they rely on the evidence that the district court considered was two pieces of evidence one dealing with the base in iraq and one dealing with the base in afghanistan that allege that k b r burnt substances which weren't allowed to be overwhelming evidence of military control so the district court dealt with that evidence in the district court's findings are not clearly erroneous was in there also some evidence of a literally someone who was a plaintiff in this case by the name of kevin robins who suggested that violations and also even if k b r scotland wasn't perfect that's not a requirement for actual control if you look at carmichael there were allegations and carmichael that the driver did things improperly and actually as the record showed that the driver was driving too fast would he approached the s curves that were in the road the driver wasn't paying proper attention but the court nevertheless found that the political question doctrine applied in that case so even if there was some evidence in this case which the district court found there isn't and it doesn't overcome the overwhelming evidence of control but even if that were the case that wouldn't again the application of the political question  table factor dealing with actual control is clearly established here the district court made that finding the district court also made a finding on tell you a factor number two but the court did not reached out of course if it finds actual control on tiger factor number one and that would be an appropriate disposition because we have the situation where the court of course the law has now percolated the law is fairly settled on many of these issues the court in the first appeals set out  this court out of all that discovery that was done there were thirty four i believe depositions taken the district court allowed collectively the parties to take sixty the parties took thirty four depositions the record is now fully developed the district what where the burn pits would be placed on the basis what would be reborn what the hours were be the height of the flames there is pervasive military control somewhere to what the court can't found in carmichael well can i mean are these mutually exclusive if you if the first if we find that the political question doctrine doesn't bar the suit does not necessarily result in this exception also not finding of lack of control suggests that there wasn't integration there is overlap but because the korean test is a little broader i think it when the court will be able to find that there was no plenary control under taylor but still find that there was preemption and that's because the preemption test looks at whether the state lawsuit touches the military's battlefield conduct and decisions and there are preempted whenever the suits affect activities stemming from military commands so the test here is even bro course for preemption the court looks at the degree of integration that in fact existed in here k b r was integrated into the military is built battlefield operations because the military dictated all of the main aspects of k r work because the military decided to use burn pits in the first instance the military decided where to put them and what would be burned the military decided when and how substances would be burned in the military decided i any alternatives to burning would be used and as a result of all of those undisputed facts but ok so that it's a question but if we have found to the contrary when looking at the political question doctrine doesn't that effectively facts assuming it credits judge hiatuses facts could then look at the analysis under preemption in look at the question of whether the state lawsuit touches the military's battlefield conduct in decisions  suit would be preempted because it affects activities stemming from the military command so basically it's a broader test and in the court if the credits the evidence could possibly find that it's not  doctrine but still find it's preemption but you're absolutely right there's a lot of overlap with the control of the factors but i think there is a slight distinction between the two tests that would allow the court to concrete action even if the court decides that the whole question in or further evaluation of the second paper factor i don't believe so your are because i believe judge titus also ruled on the second title factor and i think the core could uphold and the district court's opinion on either in addition to all the control factors there are other facts that reinforce that k b r was integrated there's no dispute here that k b r worked closely with military personnel k b r work side by side with the military met regularly with the d c a million uniform personnel and in fact had its layers officers embedded with the military's operational command all of this was vital to ensure that the military goals were cheap and in accordance with the military operations so in some of these undisputed b r claims that the district court did not make a clear error by relying on general sanchez the district court's reliance on the verbal directive claim to have occurred by general sanchez is directly contradicted by the task orders and the ac and the letters of technical direction and its ielts there were issued during general sanchez's tenure those written documents told k b r that they were not to use surface burning surface burn they didn't go and get those tickets they only got it in eighteen locations that leaves the record crystal clear about the scope of the military authorization it is it is it is a clear error and showing a faulty logic for the district court to seize on to sanchez and by their after the fact testimony that well we must have intended to give k b r an order to use surface burning you have to look at the military the record shows that awareness does not matter that's not the point point the you have to locate what was a military decision you don't want to begin to create a standard that we  we assume a military was decision was made simply by awareness and it's also a thought in logic for the just a court to rely on the fact that the flames were evident because the truth is the military itself operated a lot of pets so a war fighter wouldn't even necessarily know who was operating that when they saw the flames so what you have to look at is ok well what was the military decision and on that that is whole issue as the harris court pointed out litigating what the what were the person ice contours of what was the military decision is something that the courts are well suited to do and here the record is very clear the record you have to you cannot conflate the war fighter with the contract command you have to say how does the military make decisions on directing k b r all the testimony shows that you make the decisions to direct the contractor in writing via the contracting command ok now let's look at what was actually done during general sanchez's tenure there were writings directing k b r not to use surface burning so the reality is that the military had ample opportunity to come forward with another hundred and one letters saying oh we were allowed to use it here we were allowed to use it there they have not done that now as the litigation progresses if they find another letter giving them permission we then want to challenge the use of surface advocate case this is quintessentially a question for the judiciary were private private party suing a private entity there is simply no there is simply no intrusion on military decision making by holding k reach a political question and k b r can come forward with no evidence not a single writing that gave them permission to burn batteries for example or any other have hazardous materials so when you look at that when you look at the  this all out with these citations in our brief there are a series of task orders that apply over time and so at any point in time for example during general sanchez's tenure he was there three or four so  to look at what k b r was directed to do during his tenure you go to the first task order and so when you look at the task you are in effect at that time it clearly said surface burning was a last resort and only and could only be took our direction only from a c e o so there really is no dispute about what k b r itself looked to when it tried to determine what was the military direction to us and so  in addition to the task orders themselves we have appended a chart in which we we lay out all of the base numbers of these eighteen directives and i believe that's a four four five eight your honor but i may i may i apologize i may need to correct that but that chart lays out all of the big numbers of these eighteen directives so this is a matter of black and white and i would just briefly speak on combat activities the district court cannot rule on summary judgment that you made all sorts of credibility terminations waited the evidence so just as a matter of under andersen liberty lobby you just did not have the findings of fact you would need first there was no there's clearly disputed facts