Should foreign contractors be held accountable in U.S. courts?

Introduction

A judge’s decision that his court was not the proper venue for a dispute between a Kuwaiti firm and the family of an American soldier killed in Iraq illustrates the many legal and moral complexities arising from the U.S military’s widespread involvement with foreign contractors.

The case has also led to a new effort on Capitol Hill to limit the ability of foreign contractors to evade U.S. courts.

Judge William S. Duffey Jr. of U.S. District Court for the Northern District of Georgia ruled last Friday that a dispute between the family of Army Lt. Col. Dominic ‘Rocky’ Baragona and Kuwait and Gulf Link Transport Company, or KGL, the owner of a truck that killed him, properly belonged in Kuwait. That’s because the truck involved was operating under a United Nations contract at the time of the accident, Duffey ruled. KGL also has contracts with the U.S. Army that are administered through forward operating units based at the Army’s Ft. McPherson, in the state of Georgia. The judge’s decision overturned an earlier $4.9 million award to the Baragonas.

Despite the ruling, Judge Duffey had harsh words for KGL, arguing that the firm ignored the Baragonas for years and refused to reach a “just resolution.”

“KGL and other Kuwaitis received unquantifiable benefits from the protection the United States Armed Forces have provided to Kuwait for over fifteen years,” Duffey wrote. “For KGL to then turn a blind eye to the death caused by a KGL employee of a United States service member… is an affront to the solemn sacrifices service members such as Lt. Col. Baragona honorably provided to Iraq…

“KGL took this callousness even further by causing Plaintiffs to expend nearly four years and significant expense in merely getting the question of jurisdiction before the Court,” Duffey wrote. “The Court implored KGL to work with Plaintiffs to fashion a just resolution in this case, but this request was ignored.”

According to the Baragona family, Kuwaiti company KGL is avoiding U.S. litigation by claiming to have operated under a U.N. contract in Iraq. (Courtesy of Arlington National Cemetery.) A statement from KGL asserted that “U.S. courts never were the proper venue for a case involving a Kuwaiti company operating under contract with the United Nations.” The firm said the incident occurred “while KGL was performing a World Food Programme contract for the United Nations.” The Baragona family said they avoided Kuwaiti courts because of their reputation for being unfair, citing State Department human rights reports.

In March, in response to the issues raised by the case Sen. Claire McCaskill (D-Missouri) introduced the “Lieutenant Colonel Dominic ‘Rocky” Baragona Justice for American Heroes Harmed by Contractors Act.” The legislation would allow for lawsuits in U.S. federal courts against contractors working for the U.S. government overseas when U.S. troops, other U.S. government, or contractor employees suffer serious injuries. The bill would also allow contractor use of federal rules to drag out lawsuits by victims and/or their families to be grounds for debarment (a bar from winning future contracts). Judge Duffey called the way KGL dragged out the litigation “callous” in his ruling.

Judge Duffey’s decision “shows how important the bill really is,” said Dominic Baragona Sr., Rocky’s father.

The Baragonas decided to pursue a lawsuit after growing frustrated with several Army inquiry reports, which they say did not get to the bottom of what happened in the accident. For example, the first Army report did not mention the name of the company. It took intervention from then-Sen. Mike DeWine (R-Ohio) to learn this, said Pamela Baragona, Rocky’s sister.

The Army did not provide PaperTrail with a comment, despite several phone and e-mail requests. In July 2008, Army Secretary Pete Geren wrote to Sen. Mel Martinez (R-Florida) and said the Army did not find that KGL’s actions warranted a prohibition on it winning contracts. McCaskill’s bill could change that in similar cases in the future.

The Baragona family says they’re not deterred and they will continue to seek something good out of their son’s death. “We’re not going to stop since we’ve gone this far,” said Dominic Baragona Sr.