CRS Publishes “The Cost of Iraq…”

Last month, the Congressional Research Service published its new paper, “The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11.”  Not only does the report provide a look back at the $1.6 trillion spent since September 11, 2001, it also addresses the potential costs of war over the next year.

With enactment of the FY2014 Consolidated Appropriations Act on January 1, 2014 (H.R. 3547/P.L. 113-73), Congress has approved appropriations for the past 13 years of war that total $1.6 trillion for military operations, base support, weapons maintenance, training of Afghan and Iraq security forces, reconstruction, foreign aid, embassy costs, and veterans’ health care for the war operations initiated since the 9/11 attacks.

Of this $1.6 trillion total, CRS estimates that the total is distributed as follows:

• $686 billion (43%) for Operation Enduring Freedom (OEF) for Afghanistan and other counterterror operations received;
• $815 billion (51%) for Operation Iraqi Freedom (OIF)/Operation New Dawn (OND);
• $27 billion (2%) for Operation Noble Eagle (ONE), providing enhanced security at military bases; and
• $81 billion (5%) for war-designated funding not considered directly related to the Afghanistan or Iraq wars.

About 92% of the funds are for Department of Defense (DOD), 6% for State Department foreign aid programs and diplomatic operations, 1% for Department of Veterans Administration’s medical care for veterans. In addition, 5% of the funds (across agencies) are for programs and activities tangentially-related to war operations.

The FY2015 war request for DOD, State/USAID, and Veterans Administration Medical totals $73.5 billion including $58.1 billion for Afghanistan, $5.0 billion for Iraq, $ 100 million for enhanced security, and $10.4 billion for other war-designated funding. These totals do not reflect the new FY2015 request submitted in November 2014 to cover expenses for Operations Inherent Resolve (OIR) that began with airstrikes launched in late August 2014, to aid Syrian insurgents and the Iraq government to counter the takeover of territory by the Islamic State (IS). The Administration submitted a $5.5 billion FY2015 budget amendment for this operation that Congress is considering. Including the new request, the FY2015 war funding now totals $79.0 billion.

In late May 2014, the President announced that troop levels in Afghanistan would fall from 33,000 to 9,800 by January 1, 2015 with the U.S. role focusing on advising Afghan security forces and conducting counter-terror operations. A year later, by January 1, 2016, the President stated that the number of troops in Afghanistan would halve to about 4,900 and then by the beginning of 2017, settle at an embassy presence of about 1,000.

Overall U.S. troop levels in Afghanistan and Iraq began to decline with the withdrawal of all U.S. troops from Iraq by December 2011. The troop decline continued with President Obama’s announcement in February 2013 that the number of U.S. troops in Afghanistan would halve from 67,000 to 34,000 by February 2014. Annual war costs also decreased from a peak of $195 billion in FY2008 to $95 billion enacted in FY2014. After the reversal of the 2009 Afghanistan surge, the President promised in the 2013 State of the Union address that “our troops will continue coming home at a steady pace as Afghan security forces move into the lead [and] our mission will change from combat to support.” He also stated that by “2014, this process of transition will be complete, and the Afghan people will be responsible for their own security.”

The FY2015 Continuing Resolution (H.J.Res. 124/P.L. 113-164) sets war funding at the FY2014 enacted level of $95.5 billion, which exceeds the FY2015 amended request (with OIR) by about $16.5 billion. The CR expires on December 11, 2014, and Congress is expected to enact another CR or an Omnibus appropriations act for the rest of the fiscal year.

Congress may face several budgetary issues about how to respond to the FY2015 war request and longer-term war cost issues including: • assessing the amount, purposes, and level of funding to support U.S. troops during the post-2014 drawdown;

• evaluating the Administration proposal for a new flexible funding account that would provide $5 billion for a Counterterrorism Partnerships Fund (CTFP) to respond to unspecified “evolving threats from South Asia to the Sahel” by “building partnership capacity” through Train & Equip programs;
• defining what is an appropriate war-related cost as opposed to what is in the base, non-war budget, a choice made more difficult in part by the potential squeeze on agencies’ base budgets that are subject to Budget Control Act spending limits (P.L. 112-25);
• estimating the potential long-term cost of the war, including repairing and replacing war-worn equipment and maintaining an “enduring presence” that could entail a substantial footprint in the region; and
• responding to the November 2014 request for $5.5 billion for Operation Inherent Resolve, the new operation to counter the Islamic State.

There are some indications that the FY2015 DOD war funding request may be more than is needed in light of FY2014 experience when expenses for returning troops and equipment have proven to be lower and the pace faster than anticipated. If expenses are lower and withdrawal is faster than anticipated, the FY2015 request may also include excess funds that could be used to pay for part or all of the new $5.5 billion request to counter the Islamic State. Savings in FY2015 could be partly offset by the recent announcement by Secretary Hagel that up to 1,000 U.S. troops could be kept in Afghanistan until the spring of 2015 to substitute for a delay in NATO troops being available to provide needed support.

Members have raised various concerns about the broad authorities requested for the new CTPF, which exceed current authorities for other Train & Equip programs. The conference version of the FY2015 National Defense Authorization Act, H.R. 3797, reduces the funding and rejects most of the new authorities requested. Other concerns include the lack of evidence of success in previous similar programs, particularly in situations like the complex political-military environment in Syria and Iraq.

Congress may wish to consider ways to restrict war-funding to exclude activities marginally related to war operations and support, and to limit the use of ground troops in Operation Inherent Resolve.

This imbedded hyperlink will take you to the CRS’s report.

Top Workers’ Compensation Blog Honoree – 2014

We received a great Christmas present the other day.  LexisNexis included Navigable Waters as one of the Top Blogs for Workers’ Compensation and Workplace Issues.  This most certainly makes for happier holidays.  Thank you.

Here is what LexisNexis had to say about our blog:

Navigable Waters
http://navwaters.com
Published by Mouledoux, Bland, Legrand & Brackett

A consistent name on our Top Blogs list is Navigable Waters, a Maritime, Longshore and Defense Base Act Blog, published by New Orleans law firm, Mouledoux, Bland, Legrand & Brackett. Receiving an award for the fifth consecutive year, the firm continues to post informative content on a timely basis. Whether it’s a piece on punitive damage recovery under maritime law [see http://navwaters.com/2014/09/30/punitive-damages-not-recoverable/], a post discussing the ability to reach LHWCA benefits to pay spousal support [see http://navwaters.com/2014/11/10/pa-court-requires-use-of-longshore-benefits-to-pay-spousal-support/], or the fascinating discussion of Yates v. United States, argued before the U.S. Supreme Court, which may decide whether a commercial fisherman’s action of throwing undersized fish back into the ocean could be a potential violation of the “anti-shredding” provision of Sarbanes-Oxley Act (Comp folks might not be familiar with “Sarbox.” Enacted in 2002 (Pub.L. 107-204), the law deals primarily with accounting fraud and other practices made famous in the Enron debacle) [see http://navwaters.com/2014/10/30/is-sarbanes-oxley-really-this-fishy/], this blog continues to be a real winner.

Tort Law’s “Zone of Danger” Test is Not Applicable to Longshore Psych Claims

2572917367_74b111ac08_o - forkliftWhile operating a forklift, claimant accidentally struck and killed a fellow employee.  Claimant’s testimony revealed that, after the accident, he and other employees attempted to extricate the decedent’s body from underneath the forklift.  The day after the accident, claimant first sought medical attention for a psychological injury arising from the forklift incident.  Claimant saw multiple mental health professionals.  After a formal hearing to address claimant’s request for Longshore benefits, an administrative law judge awarded benefits despite Employer’s argument that claimant did not meet the requirements of the “zone of danger” test.  On appeal, the Benefits Review Board affirmed.

At the outset, it must be noted that the “zone of danger” test argued by the employer in this case is not the “zone of special danger” test referenced in many Defense Base Act cases.  Instead, the employer argued in favor of importing the “zone of danger” test applied in tort law. The “zone of danger” test relied upon by the employer would limit recovery for negligent infliction of emotional distress injuries “to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.”

The  Board  dispatched the employer’s “zone of danger” argument:

We agree with claimant and the Director that the “zone of danger” test, upon which employer relies, is a tort concept which does  not apply to the workers’ compensation provisions of the Longshore Act.  As noted by the Director, employer cites five federal court decisions in which the “zone of danger” test was applied to limit plaintiff’s recovery for the negligent infliction of emotional distress.  . . .  employer’s reliance on these cases is misplaced, however, as its argument fails to acknowledge the critical distinction between tort actions, which rely on common law fault and negligence principles, and workers’ compensation claims, which are not governed by those principles.

. . .

Thus, as we reject employer’s position that the line of cases applying the “zone of danger” test in tort actions for the negligent infliction of emotional distress should be extended to workers’ compensation claims under the Longshore Act, we affirm the administrative law judge’s rejection of employer’s contention that the “zone of danger” test precludes an award of disability compensation in this case.

Jackson v. Ceres Marine Terminals, BRB No. 14-0071 and14-0071A (2014).

Forklift image courtesy of Flickr user Jaxport.

Eastern District of Missouri Holds that Plaintiff Was Not a Jones Act Seaman

Welder by Greg Younger - FlickrDefendant owns a large facility on the bank of the Mississippi River that loads materials onto barges and rail cars.  Also, Defendant owns four large towboats.  Plaintiff worked for Defendant for the past eleven years, spending 90% of his time “welding various metal components around Defendant’s land-based facilities, on Defendant’s towboats, and on Defendant’s barges.”  The remaining 10% of Plaintiff’s work was spent performing “various tasks on land and on docked boats, including reworking cable and transmission lines and doing repair work.”

Plaintiff was injured while riding as a passenger on a water taxi owned by Defendant, and used to transport crew members to and from job sites.  Thereafter, Plaintiff filed a complaint alleging negligence under the Jones Act.  Defendant filed a motion for summary decision arguing that Plaintiff was not a seaman.  The United States District Court for the Eastern District of Missouri agreed.  Although Plaintiff contributed to the function of Defendant’s vessels, he did not have a sufficiently substantial connection to Defendant’s vessels:

[T]he Court agrees with Defendant that no reasonable jury could find that Plaintiff’s connection to the fleet of vessels is substantial in terms of its nature. The Supreme Court has indicated that Chandris’s second prong is intended to identify those employees “whose work regularly exposes them to the special hazards and disadvantages to which they who go down to sea in ships are subjected.”  Lower courts have noted that the “special hazards and disadvantages” faced by seamen include the “need to fight fires without outside assistance, the need to abandon ship, the need to survive exposure to inclement weather until help arrives, potential delay or inconvenience in being transported offsite to receive medical attention, and being stuck on a vessel under the control of its Master and operator for extended periods of time until the next port call.”  In contrast, maritime hazards that are faced by longshoremen and seamen alike—such as the danger of falling overboard, the trip-and-fall hazards associated with walking on decks, the risks of injuries while handling lines, the risks associated with wind-gusts and river turbulence, and the dangers associated with the movement of docked vessels in the water—are not considered perils of the sea for purposes of the Jones Act inquiry.

Courts have frequently found that individuals who work exclusively or primarily aboard docked vessels are, as a matter of law, not seamen because they are not regularly exposed to the perils of the sea, especially when other circumstances indicate that the individual is not assigned to the vessel as a member of its crew.

The Court has identified some cases in which courts have found that a plaintiff who worked largely aboard docked vessels was a seaman; however, those cases have involved other factors suggesting a substantial connection to the vessel, such as the plaintiff being assigned to the vessel, the plaintiff performing traditionally sea-based duties, and/or the plaintiff being treated as a Jones Act employee by his or her employer.

When Plaintiff’s duties are viewed in light of the above cases, it is clear that no reasonable jury could find that Plaintiff has a substantial connection to Defendant’s vessels that satisfies the second prong of the Chandris test. First, like the plaintiffs in Vasquez and Saienni, who worked primarily aboard docked vessels and only rarely on boats that were under way, Plaintiff is not regularly exposed to the special hazards and disadvantages faced by those who go out to sea. Plaintiff does 90% of his welding work (which is itself 90% of his work) “on land or connected to the land right there on the dock.” Although he boards docked vessels to do welding and other work, he only rarely does any work on vessels while they are moving up and down the river. Moreover, none of the other factors courts have used to find seaman status are present here. Plaintiff is not assigned to any vessel and is not a crew member of any vessel. After he finishes a project performed aboard a vessel or barge, he returns to shore. He admits that if he is assigned to anything, it is his welding truck. He does not regularly perform traditionally sea-based activities such as piloting towboats or acting as a lookout, and he has no marine license or marine radio, and uses his truck’s radio for land-based operations. Taken together, these facts establish that Plaintiff is not “a member of the vessel [s’] crew,” but is rather “a land-based employee who happen[ed] to be working on the vessel[s] at a given time.”

Because no reasonable jury could find that the second prong of Chandris is satisfied, Plaintiff is not a seaman within the meaning of the Jones Act, and Defendant is entitled to summary judgment on Plaintiff’s Jones Act claim.

Turner v. Wayne B. Smith, Inc., No. 2:13-cv-100-SPM, 2014 WL 6775796 (E.D. Mo. 12/2/14). Excellent image courtesy of Flickr user Greg Younger.