I. Introduction
Twenty-four-year-old Army Ranger Staff Sgt. Ryan Maseth was serving his second deployment to Iraq after enlisting in 2001. On January 2, 2008, Maseth was electrocuted and killed while showering in his barracks. The shower was electrified due to an ungrounded and unbonded water pump, which electrocuted Maseth to death when it short-circuited. The U.S. Department of Defense (DoD) had hired private military contractor Kellogg, Brown & Root Services (KBR) to perform maintenance electrical services at the Radwaniyah Palace Complex barracks in Baghdad, where Maseth was stationed. An Army Criminal Investigation concluded that KBR and two of its DoD supervisors had breached their standard of care and classified Maseth’s death as negligent homicide. However, the Army later declined to bring criminal charges because it found that the breaches alone were not the proximate cause of Maseth’s death.
Maseth’s mother, Cheryl Harris, sued KBR for wrongful death in negligently failing to ground and bond the water pumps while installing and after responding to complaints of electrified water from Maseth himself. The district court dismissed the state tort law claim against KBR on two separate grounds. First, it held that the political question doctrine barred the negligence claim because it presented the nonjusticiable question of assessing a military decision on the battlefield. Second, the court held that the “battlefield preemption doctrine” preempted the state tort claim against KBR. Created under the “Combatant Activities Exception” to the Federal Torts Claims Act (FTCA), this doctrine preempts state tort claims against contractors “integrated into combatant activities over which the military retains command authority.”
In Harris v. Kellogg Brown & Root Services, Inc., the U.S. Court of Appeals for the Third Circuit reversed and remanded on the issue of political question because Maseth’s claim could proceed under Pennsylvania state law. Yet, under Texas state law, Maseth’s claim would have been deemed nonjusticiable. States vary regarding tort liability and its defenses. In a joint and several liability jurisdiction like Pennsylvania, courts can review KBR’s defenses of contributory negligence and proximate cause without assessing unreviewable military decisions. However, in a proportional liability jurisdiction like Texas, KBR’s liability could not be reviewed without also evaluating nonjusticiable military choices. The Harris court expressly recognized that tort claims by military members against contractors overseas will have varying success depending on which state law applies.
The Third Circuit also held the battlefield preemption doctrine did not preempt Maseth’s state tort claim because it found the military did not retain authority over KBR’s shower maintenance obligations. However, other Circuit Courts have held that federal policy should preempt non-combat tort claims, like electrocutions, to fully insulate military contractors from liability overseas. As with the political question doctrine, courts inconsistently apply the battlefield preemption to bar similar tort claims by military members against contractors.
Both doctrines unfairly deny a judicial remedy in state court to military members killed or injured by contractor negligence outside of combat. First, the political question doctrine unevenly bars judicial review of tort claims depending upon which state law applies. Second, courts have expanded the battlefield preemption doctrine to insulate military contractors from liability in contracts unrelated to combat and outside military direction. Instead of protecting contractors assisting the military, the doctrine now protects contractors outside of combat at the expense of military members.
Tragically, Maseth’s death in Iraq was not uncommon. By 2011, at least eighteen U.S. service members died by electrocution, with nine deaths caused by improper grounding or faulty electrical work. In addition, military members suffered from food poisoning and exposure to extreme carcinogens at water treatment centers due to negligent actions of contractors in Iraq and Afghanistan. Killed or injured military members can only bring suit under state or foreign law for torts committed overseas in Iraq and Afghanistan.
This Note proposes a federal solution to provide military members a cause of action against negligent contractors for non-combat related torts. A federal statute would remedy the unbalanced application of the political question doctrine through a uniform joint and several liability tort system that would not require an assessment of unreviewable military decisions. This proposed statute would also expressly give service members a cause of action against contractors for torts committed outside of combat and military direction, while preserving the original purpose of the battlefield preemption doctrine in shielding contractor liability toward plaintiffs injured as a result of military force. From a broader perspective, claims involving national security and military operations overseas should be adjudicated under federal law, not state or foreign law. The current military withdrawal from Iraq and Afghanistan presents an opportunity to address this issue before the next conflict begins in the Middle East or elsewhere.
Part II provides background on the military’s use of contractors in Iraq and Afghanistan and explains that contractor negligence poses immense risk to military members outside of the combat zone. Part III explains why contractor negligence outside of combat and not under military control can be judicially determined under federal law without implicating the political question doctrine. Part IV argues that a federal remedy only available to American service members for non–combat-related torts does not conflict with the initial purpose of the battlefield preemption doctrine. Finally, Part V proposes implementing language for Congress to better regulate contractor tort liability in future military operations through statute.
II. Background: How Contractor Negligence Can Harm Military Members Outside of Combat and Military Direction
This Part describes the United States’ increased use of contractors and the risk contractor negligence poses to military members outside of combat. Section A details the expansive roles that contractors played in the military operations in Iraq and Afghanistan. Section B explains how contractor negligence killed or injured service members outside the combat zone. Section C highlights how contractor negligence will endanger service members in future conflicts absent greater accountability.
A. The Role of Contractors in Military Operations
The U.S. military has long relied on contractors to provide support in military operations. During the Revolutionary War, the Continental Army relied on contractors to provide goods and services such as transportation, clothing, and weapons. By the end of the Cold War, a growing private defense industry produced military equipment and supplies. However, the military did not use contractors for operations beyond supplying goods until the early 1990s. Over the past thirty years, the DoD has increasingly relied on private contractors to play an expansive role in military operations.
Throughout the wars in Afghanistan and Iraq, the number of contractors and the scope of their contracts expanded greatly. In both areas, contractors frequently outnumbered U.S. military members and accounted for over fifty percent of the total DoD presence in each country. At the start of 2013, the DoD reported 110,404 contractor personnel in Afghanistan, in comparison to the 65,800 uniformed U.S. military personnel. Iraq told a similar story. At the start of 2011, there were 71,142 military contractors in Iraq, compared to 47,305 U.S. military members.
The Commission on Wartime Contracting in Iraq and Afghanistan reported that during both operations the DoD, the U.S. Department of State, and the United States Agency for International Development (USAID) created an “unhealthy over-reliance” on contractors. While the recent drawdown of the U.S. military in Iraq and Afghanistan reduced numbers significantly, more contractors than military members remained in Afghanistan in 2018.
The ever-expanding scope of these contracts drove the surge in contractors, including Private Security Contractors (PSCs). PSCs perform combat-related “armed services” previously reserved for military members such as protecting sites, guarding travelling convoys, and providing security escorts. Security supplied by PSCs became the second most common service provided and constituted roughly sixteen percent of the contractors in Iraq.
PSCs also perform combat-related ‘unarmed services’ like training foreign military and police personnel and, more significantly, interrogating prisoners. The military traditionally performs interrogations, and the contracts for this particular service produced much controversy. In fact, the use of interrogation contractors led to the litigation that established the battlefield preemption doctrine.
However, most contractors provide non-combat services like base support to the military. Base support roles involve construction, food services, laundry services, logistical support, and maintenance of military housing. Other base support roles include water treatment and waste management. In 2011, base support personnel contractors accounted for roughly sixty-one percent of the total number of DoD contractors in Iraq. In addition to acting as base support personnel, contractors also provided non-combat transportation services for the military. Transportation contractors constituted around two percent of the DoD contractors in Iraq and Afghanistan.
KBR is the military’s primary contractor for non-combat base support services. As the largest military contractor for the DoD during the Iraq War, KBR provided most electrical services, food, water treatment, and waste disposal services to military members serving in Iraq. KBR earned over $37 billion as the exclusive contractor under the military’s Logistics Civil Augmentation Program (LOGCAP III) contract from 2001 to 2011. As a result, most tort claims made by either the families of those killed or by injured military victims themselves were brought against KBR.
B. Contractor Negligence Kills or Injures Service Members Outside of Combat
Electrocutions are not the only risk military members face outside of combat. Military members have also suffered injuries from flight crashes, exposure to harmful toxins at water treatment plants and burn pits, and food poisoning. Each injury displays the unique and varying dangers service members are exposed to as a result of contractor mistakes.
Of the eighteen electrocution deaths since 2003, nine resulted from improper grounding of faulty equipment. The other nine resulted from poor electrical infrastructure like contact with live power lines. Staff Sergeant Christopher Everett, a twenty-three-year-old member of the Texas Army National Guard, was killed in September 2005 in Iraq after a power washer short-circuited and sent deadly shocks through his body. An Army investigation found the cause was an improperly connected grounding wire on the generator that supplied electricity to the power washer. KBR and another contractor, Arkel International, performed the electrical work on the device’s generator. Like Maseth, Everett’s parents filed a state tort claim against both Arkell and KBR for wrongful death.
United States Marine Peter Taylor is another example. While working on a main generator for a tank ramp, Taylor’s unit instructed KBR technicians not to turn on the generator until it was safe to do so. Nevertheless, one of the KBR technicians turned on the generator while Taylor was still working, electrocuting Taylor and severely injuring him.
In 2008, the Army established “Task Force Safe” to review, detect, and identify electrical hazards in Iraq. The Army detailed Jim Childs as the electrical subject matter expert for the task force. As a result of his findings in Iraq, Childs testified that ninety percent of the new construction maintained by KBR was not properly wired. Childs stated, “it was horrible—some of the worst electrical work I’ve ever seen . . . with the buildings the way they are, we’re playing Russian roulette.” Of the nearly 30,000 buildings reviewed, Childs stated more than half failed inspection.
Other dangers from contractor negligence outside of combat are readily apparent. The DoD contracted with Presidential Airways to provide flight transportation for military operations in Afghanistan. In 2004, a flight carrying three U.S. soldiers from Bagram Airfield to Northern Afghanistan crashed into the side of a mountain after the contractor pilot mistakenly entered into a steep canyon shortly after take-off. No one onboard survived the crash.
Furthermore, other military members in Iraq suffered exposure to known carcinogens while serving at the Qarmat Ali water treatment facility in Southern Iraq. While KBR restored the vandalized water-treatment plant, bags of the chemical compound sodium dichromate tore open, causing the toxic powder to stain the soil and drift into the air. Sodium dichromate contains the dangerous carcinogen hexavalent chromium, but KBR maintained that it did not initially realize the lethality of sodium dichromate until the spring of 2003. Two military members stationed at Qarmat Ali died after exposure to the chemicals. Oregon National Guard Sgt. Nicholas Thomas died from leukemia at age twenty-one, and Indiana National Guard Lt. Col. James Gentry of lung cancer at age fifty-two. Other service members reported lung problems and immune system disorders after serving at Qarmat Ali.
Similar injuries resulted from KBR’s waste disposal strategy of using multiple open-air burn pits to dispose of trucks, tires, rubber, batteries, chemicals, medical waste, biohazard materials, human remains, asbestos, and hundreds of thousands of plastic water bottles. Tens of thousands of military members filed compensation claims with the Department of Veterans Affairs after being exposed to the more than 250 burn pits in Iraq and Afghanistan. An estimated 130 military veterans have died as a result of burn pit exposure.
KBR’s negligence extended to basic necessities like food and drinks. Former KBR food production manager Rory Mayberry testified that KBR regularly served spoiled food to U.S. forces in Iraq. Others accused KBR of distributing contaminated drinking water.
Many of these injuries led to litigation under state tort law by military members, with mixed success. This Note recognizes the important role that KBR, a former subsidiary of Halliburton, played in supporting military operations in Iraq and Afghanistan. Such support is necessary for successful military war efforts. Thus, this Note only argues that when negligent acts occur outside of combat and military direction, military victims and their families should be able to seek a federal tort remedy.
C. Contractor Negligence Outside of Combat Will Continue to Harm Military Members in Future Conflicts
The recent military withdrawals from Iraq and Afghanistan have reduced the military presence in both theatres, and tort claims against contractors have declined in tandem. However, evidence indicates that the role of contractors will be reduced during the next military conflict. In 2019, KBR, in combination with three other contractors, received the most recent $82 billion LOGCAP V contract to provide all base support for military installations around the world. KBR was awarded the largest contract at over $1.9 billion, which includes base support for all military operations in Afghanistan.
Whenever the next conflict arises, military members will be vulnerable to contractor negligence outside of combat. Military members are routinely endangered outside of combat by electrical hazards, aviation accidents, toxic exposure, and food poisoning. Currently, such negligence is only actionable under state tort law.
III. Contractor Negligence of Outside Military Control Does Not Implicate the Political Question Doctrine Under Joint and Several Liability
This Note argues that military members killed or injured by contractor negligence outside of combat and military control must be provided a federal tort remedy. Ryan Maseth’s electrocution in Harris demonstrates how victim military members are inconsistently denied relief under the political question doctrine depending on the applicable state law. Further, Harris displays how the battlefield preemption doctrine has extended beyond its original purpose of insulating military contractors from suits by foreign enemies, to barring suits by military members that contractors are hired to support. Both doctrines protect the military and contractors from liability for injuries resulting from combat activities and discretionary military decisions during combat operations. Yet, both doctrines now block tort claims by military members killed or injured outside of combat and military control.
Thus, Part III analyzes both judicial doctrines to show how each doctrine insulates contractors from tort liability under state law. It then discusses why legislation giving service members a federal tort remedy would resolve any conflict with both doctrines. Part III explains the two reasons why a federal tort remedy would overcome political question doctrine concerns. First, contractor negligence occurring outside of combat and military control is not committed to executive branch discretion. Second, because courts apply the political question doctrine differently, a uniform federal statute applying joint and several liability would prevent claims from being denied unevenly based on which state law applies.
Section A explains the purpose of the political question doctrine in litigation involving military operations. Section B argues that negligence actions outside of combat or military instruction do not present nonjusticiable issues textually committed to the executive branch. Section C supports the proposition that a federal statute providing joint and several tort liability would offer a uniform judicial standard for determining contractor liability.
A. The Purpose of the Political Question Doctrine in Military Operations
The political question doctrine is intended to bar judicial review of claims related to decisions constitutionally committed to the discretion of the executive and legislative branches. In Marbury v. Madison, U.S. Supreme Court Chief Justice John Marshall stated that it is beyond the Court’s power to review how the executive branch performs its constitutional discretionary duties. In particular, courts emphasize that issues involving overseas military operations are nonjusticiable when the claims require courts to assess discretionary military decisions. In Baker v. Carr, the Supreme Court laid out a six-part inquiry to determine whether the political question doctrine bars judicial review. Two key factors include: (1) “a textually demonstrable constitutional commitment of the issue to a coordinate political department” and (2) “a lack of judicially discoverable and manageable standards for resolving it.”
Courts have made clear that military contractors like KBR are not part of the military. Yet, courts apply the Baker factors to determine whether a suit against a contractor would require examination of a discretionary military decision. For example, claims against contractors are nonjusticiable if determining a contractor’s liability also requires the court to determine the adequacy of military training procedures, appropriate standards for intercepting aircrafts, or the necessity to simulate war conditions. There are some cases, however, where courts do not find political questions under the Baker factors. Examples include contractors failing to repair electrical hazards, transportation accidents, and exposure to toxic waste. Still, the outcomes of these tort claims against contractors are unpredictable under the political question doctrine, with some commentators noting the absence of “uniform treatment and predictable standards.”
The uncertainty under the political question doctrine results from two issues stemming from the Baker factors. First, courts disagree over what constitutes unreviewable military control and direction. Second, not every state’s tort law analyzes the tort defenses of contributory negligence and proximate cause equally. Section B addresses the issue of military control, while Section C explains why different state tort laws can lead to the dismissal of similar claims. These inconsistent results demonstrate why a federal tort statute is necessary to provide courts a more consistent framework to apply when service members are injured or killed by contractor negligence outside combat and military control.
B. Contractor Negligence Outside of Military Control Is Not Textually Committed to the Executive Branch
In tort claims against military contractors, the first Baker factor is often the most critical. “A textually demonstrable constitutional commitment of the issue to a coordinate political department” directly relates to preventing judicial review of military decision-making. Under this factor, contractor negligence resulting from direct military orders is not justiciable because such orders constitute unreviewable military decisions.
Contractor liability under the first Baker factor traditionally depends on the degree of military control over the contractor. Courts disagree, however, over the separating line of military control, as demonstrated by diverging opinions from the U.S. Courts of Appeals for the Fifth and Eleventh Circuits.
In McMahon v. Presidential Airways, after a transportation flight carrying three U.S. soldiers crashed into the side of a mountain in Afghanistan, the plaintiffs brought wrongful death actions against the aviation contractor for negligence in equipment and operation of the aircraft. Under the DoD contract, Presidential Airways (Presidential) was required to supply the aircraft, supervise crew selection, ensure the flight crew was screened carefully, and maintain the aircraft. Presidential had discretion to regulate how much rest crews received between flights, the specifications for planes used, limits on passengers and cargo per mission, and the acceptable amount of risk per mission. At the same time, the military directed what missions would be flown, when they would be flown, and what passengers and cargo would be carried.
The Eleventh Circuit denied Presidential’s motion to dismiss because the wrongful death action did not present a political question under the Baker factors. Under the first factor, because the DoD contract gave Presidential general responsibility over flight safety and route selection, the court found that Presidential failed to show that adjudication implicated a military decision. Under the second Baker factor of judicially discoverable standards, the court found it significant that the contractor negligence resulted outside of any combat, training activities, or any particular military specific activity. Without having to reexamine a military decision, the Eleventh Circuit stated that “[i]t is well within the competence of a federal court to apply negligence standards to a plane crash.” While it noted a difference between flying over Afghanistan during wartime and flying over Kansas on a sunny day, the court stated that the flexible standards of negligence law are well-equipped to handle varying fact situations, even when those situations involve military service contracts overseas. In finding that Presidential had general responsibility over flight safety and route selection, and that judicial standards existed under Florida tort law, the Eleventh Circuit denied Presidential’s motion to dismiss the claims as nonjusticiable.
Conversely, in Carmichael v. KBR, the Eleventh Circuit reached the opposite conclusion, holding that a military fuel convoy accident suit against KBR did present a political question. During the crash, Army Sergeant Keith Carmichael was thrown from the vehicle and sustained massive brain injuries, and eventually fell into a permanent vegetative state. Given the inherent dangers of the convoy’s route in Iraq, the KBR-operated fuel convoys were heavily protected and separated by military gun trucks and Humvees. Carmichael was assigned to ride along in one of KBR’s tanker trucks for protection.
The plaintiffs in Carmichael alleged the driver of KBR’s tanker was negligent by going too fast in approaching an S-curve when it overturned. Because Carmichael’s claim necessarily assessed the military’s decision to take that particular route at the military-approved speed, it implicated the first Baker factor. In contrast to McMahon, the contract demanded the convoy drivers be trained by military standards. In combining its analysis with the second Baker factor, the Eleventh Circuit found there were no judicially discoverable and manageable standards for resolving whether the KBR driver was negligent because “the convoy was subject to military regulation and control.” Thus, the court dismissed the negligence claim against KBR as a political question.
Conversely, in Lane v. Halliburton, the Fifth Circuitreached a different result for similar contractor-operated fuel convoy accidents in Iraq. After Halliburton and KBR civilian employees filed suit against their employer for fraudulent misrepresentation and negligence in failing to protect them from being injured by insurgents, the district court dismissed the claims as nonjusticiable. The Fifth Circuit reversed, finding KBR’s policies and actions to be potentially separable from military decision-making, even though KBR operated under the same LOGCAP contract as in Carmichael. The Lane court noted that while some of the plaintiffs’ allegations could implicate unreviewable military decisions under the first Baker factor, other claims could be adjudicated without considering a military decision.
While Carmichael and Lane arise from similar facts, the different outcomes in each case can be explained by looking at the degree of control the contractor maintained over its operations, the terms of the contract, and course of performance under the contract. The more control the military has over a contractor’s conduct, the more likely it is that a political question will be present. The concern of evaluating military decisions under the first Baker factor lowers when contractors are given discretion when completing functions outside of combat.
Important questions remain as to how the political question doctrine applies to state tort law claims against military contractors overseas. The Eleventh and Fifth Circuits heard many tort suits against contractors because that is where contractors are located geographically, yet it remains unclear how other jurisdictions will apply the Baker factors to such claims in future conflicts. More significantly, the Supreme Court has so far declined to review any tort claims by military members against contractors.
Overall, McMahon, Carmichael, and Lane establish a framework based on the difference between military control and contractor discretion, with control correlating to the combat nature of the activity. This framework of military control sets a standard for a federal tort statute, later proposed in Part V, to give courts clarity in applying the political question doctrine to tort claims.
The degree of military control is not the only aspect a court will consider in its analysis. In analyzing the military’s control over KBR after the electrocution of Ryan Maseth in Harris, the Third Circuit found KBR had significant discretion within the LOGCAP electrical work contract. In particular, KBR had no “detailed instructions in the work orders and . . . lack[ed] military involvement in completing authorized work orders.” The court stated that factual disputes, e.g., whether a contractor performed the electrical work in question or had authority to fix foreseeable dangers like unbonded water pumps, could be decided based on the contract’s standard of care and traditional contract interpretation. These issues could be determined without assessing military decisions like fuel-tanker convoy strategies like in Carmichael. Such factual determinations are similar to the flight safety standard of care found judiciable by the Eleventh Circuit in McMahon. Thus, the Harris court found that KBR’s electrical work was not an unreviewable military decision under the first Baker factor.
Despite insufficient military control under the first Baker factor, the Harris court’s political question analysis continued to the second Baker factor because of how different state tort liability systems treat different defenses. KBR raised the tort defenses of contributory negligence and proximate cause in Maseth’s death, which directly impacted the court’s calculation of contractor liability. As discussed below, these contractor defenses produce inconsistent results depending on the state. While claims may be factually similar, a joint and several liability jurisdiction calculates liability differently than a proportional liability system. Depending on the applicable state law, contributory negligence and proximate cause defenses can potentially force courts to calculate the liability of the military as a third party, implicating a military decision that leads to a nonjusticiable political question. As a result, the first and second Baker factors become intertwined when contractors raise contributory negligence and proximate cause defenses.
C. Joint and Several Liability Provides a Uniform Judicial Standard for Assessing Contractor Liability Outside of Military Control
Even when contractors are outside military control, the proximate cause and contributory negligence defenses can shield contractors from liability under a proportional liability tort system. This issue does not arise under a joint and several liability system. The proximate cause defense posits that while a contractor may have caused an injury, a third party, like the military through wartime decisions, may be liable as the proximate cause of the injury. Similarly, contributory negligence allows contractors to avoid liability if they can that show an injured victim’s own negligence caused more than fifty percent of the harm suffered.
Joint and several liability jurisdictions apply these defenses differently than a proportional liability jurisdiction. Under joint and several liability, a contractor can be fully liable for damages even if the military is also found responsible for the injury as a third party. In contrast, under proportional liability, a negligent contractor is liable for damages only according to its respective degree of fault, and not for the full amount of damages. Thus, under proportional liability, courts may be forced to calculate the respective degrees of fault between the contractor and the military, which implicates a political question.
The inconsistencies of state tort law played out in Ryan Maseth’s electrocution in Harris. KBR raised both proximate cause and contributory negligence to avoid liability in Maseth’s death. KBR asserted that the proximate cause defense shielded it from liability because the military chose to use a pre-existing building like the Radwaniyah Palace Complex (RPC). KBR argued the military’s decision to house troops at the RPC was the proximate cause of Maseth’s death.
In analyzing KBR’s proximate cause defense, the Harris court held that the justiciability of Maseth’s claim depended on the applicable state tort law. The choice of law analysis turned on whether the applicable state law was KBR’s home state of Texas or Maseth’s home state of Pennsylvania. Under Texas law, which uses a proportional liability tort system based only on degree of fault, the court would be unable to decide the respective degree of fault between the military and KBR without first evaluating the choices made by each. Military decisions to use the RPC for housing are committed to military discretion. The fact finder cannot even begin to assign the respective degrees of fault between KBR and the military without evaluating an unreviewable military decision. Thus, the Harris court stated that liability damages cannot be estimated without triggering political questions when contractors simply raise the proximate cause defense under a proportional liability system.
Under KBR’s contributory-negligence defense, the same issue arose under Texas law. KBR argued it was not liable because Maseth himself acted negligently in deciding to take a shower at RPC despite being aware of the risks. Under Texas law, because the court found a jury could find Maseth negligent, then KBR’s contributory negligence defense introduced a political question because the calculation of Maseth’s negligence required a determination of the military’s negligence.
However, under Pennsylvania’s joint and several liability system, the Harris court held that neither of KBR’s defenses presented nonjusticiable political questions. Under joint and several liability, the calculation of liability does not require evaluating military decisions because plaintiffs are able to obtain all damages from the contractor. Thus, either the families of those killed or the injured service members themselves can collect the entirety of their damages from negligent contractors even if the proximate cause defense is raised because the determination of fault does not require analyzing the military’s wartime housing decisions, thereby not implicating the political question doctrine. The Third Circuit held that KBR’s contributory negligence defense did not introduce a political question using similar logic.
The choice of law analysis from Harris shows how negligence claims against contractors are treated differently depending on which state tort law applies. While the underlying facts occurred in Iraq and Afghanistan, military members serving overseas receive varying levels of protection depending on what state they are from. Essentially, one negligent act may injure or kill two service members who then bring identical claims against the same contractor. While one service member may prevail, the other may be held nonjusticiable depending on which state law applies. This leads to unpredictable results.
Under a joint and several liability system, contractors can raise defenses protecting them from liability, but those defenses alone do not require the court to dismiss the case as a political question, allowing such cases to move forward. When U.S. service members bring claims against contractors for overseas negligence, contractor liability should be assessed uniformly under a system of joint and several liability to produce consistent results.
IV. Contractor Negligence Outside of Military Control Should Not Be Preempted by the Battlefield Preemption Doctrine
Even when contractor negligence suits like Harris and McMahon are not deemed political questions, the “battlefield preemption” doctrine is the second hurdle to victim military members. This federal doctrine arises under the “Combatant Activities Exception” to the Federal Torts Claims Act (FTCA). In addition to the political question doctrine, courts analyzed the battlefield preemption doctrine in electrocutions like in Harris, and transportation accidents like in McMahon and Carmichael.
Part IV argues that contractor tort negligence outside of combat and military control should not be preempted by the battlefield preemption doctrine. Section A provides background on sovereign immunity and exceptions included to the FTCA. Section B explains how the battlefield preemption doctrine arose under the Combatant Activities Exception to the FTCA to protect contractors from liability in supporting combat operations. Section C argues that using the battlefield preemption doctrine to block tort claims by U.S. military members against contractors outside of combat and military control extends the doctrine beyond its original purpose.
A. Government Immunity Under the Exceptions to the FTCA
Sovereign immunity protects the United States government from suit by private parties without waiver. The Federal Torts Claims Act (FTCA) waives this immunity for certain tort claims against the government. However, the FTCA provides a number of exceptions to this waiver of sovereign immunity, including a discretionary function exception and a combatant activities exception. The discretionary function exception immunizes the federal government from claims related to the exercise or performance, or the failure to exercise or perform, a discretionary duty. This precludes courts from second-guessing the government’s policy decisions when exercising unique functions, such as those carried out by the Federal Bureau of Investigation.
Similarly, the combatant activities exception to the FTCA states that the federal government is not liable for “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” This exception applies to protect the U.S. military from suit when it conducts wartime decisions and operations on the battlefield. As a result, the government is not liable for military negligence during wartime because no duty of reasonable care is owed to those against whom force is directed as a result of military action.
Courts have made clear that military contractors are not part of the military. Concepts like sovereign immunity and exceptions to the FTCA do not apply directly to contractors. In fact, the FTCA expressly excludes contractors by stating the exceptions cover only “the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations acting primarily as instrumentalities or agencies of the United States, but does not include any contractor with the United States.” Thus, the FTCA exceptions as written preempt claims only against the federal government and the military, and omits protection for contractors.
B. The Battlefield Preemption Doctrine Under the Combatant Activities Exception to the FTCA
Although the FTCA expressly excludes contractors, the U.S. Supreme Court held in Boyle v. United Technology Corporation that the FTCA discretionary function exception implicitly preempts state tort claims against contractors providing support to the military. U.S. Marine David Boyle drowned due to a design defect in the escape hatch of his helicopter during a training exercise, and his estate brought a tort claim against the contractor manufacturer. In response, the Supreme Court held that certain areas of “unique federal interests” preempted state tort law where there is a “significant conflict” between a federal interest and state tort law. That unique federal interest included military helicopter specifications, which the Court found was protected under the discretionary function exception of the FTCA. Thus, Boyle broadened the discretionary function exception to create the government contractor defense from product tort liability.
However, the reasoning in Boyle was later expanded to provide military contractors a similar implied defense under the FTCA combatant activities exception for product liability. After a U.S. warship shot down an Iranian civilian airliner by mistake during the 1988 Iran-Iraq War, the victims’ heirs brought a negligence claim against the contractor that built the weapons system on the Navy ship. In Koohi v. United States, the Ninth Circuit held that military contractors, just like the military itself, held no duty of care to the victims in the aircraft because the activity occurred during a gunfight with Iranian boats in the Strait of Hormuz.
The Koohi court stated:
The reason, we believe, is that one purpose of the combatant activities exception is to recognize 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. While the purpose of the Aegis [missile] system may have been, in part, to protect the lives of United States servicemen, its purpose was surely not to protect the lives of enemy forces or persons associated with those forces.
Thus, the Ninth Circuit noted that the combatant activities exception of the FTCA is intended to protect military contractors from suits brought plaintiffs against whom force is directed at the expense of protecting the lives of military members.
In 2009, the D.C. Circuit Court of Appeals extended the principles from Boyle and Koohi to establish the battlefield preemption doctrine in Saleh v. Titan Corp. After a number of former Iraqi detainees at Abu Ghraib prison filed torture and abuse claims against contractors hired to perform interrogation services, the D.C. Circuit adopted a new test to protect contractors from state tort claims under the combatant activates exception to the FTCA. The Saleh court held that during wartime, whenever a contractor is “integrated into combatant activities” over which the ”military retains command authority,” tort claims against contractors are preempted.
The Saleh “battlefield preemption test” contains two prongs, both of which must be satisfied to protect the contractor from suit. First, the contractor must be integrated into the military’s “combatant activities.” Preemption, therefore, occurs only when battlefield decisions are at issue. Second, the contractor’s negligence must result from the military’s “command authority.” Similar to the political question doctrine under the Baker factors, this prong differentiates between when the military has direct control over the contractor and when the contractor has discretion.
C. The Battlefield Preemption Doctrine Should Not Extend to Protect Contractors Outside of Combat at the Expense of Military Members
Despite its origins in protecting weapon manufacturers and interrogation contractors during combat from suits by foreigners, courts have extended the battlefield preemption to preempt tort claims by U.S. military members killed or injured outside of combat. After finding Maseth’s electrocution could proceed only if Pennsylvania law applied, the Third Circuit analyzed KBR’s liability under the battlefield preemption doctrine in Harris. Under the two-pronged Saleh test, KBR satisfied the first “combatant activities” prong because maintaining the electrical system in Maseth’s barracks constituted a combat activity. However, under the second prong, the court found insufficient military “command authority” because KBR had considerable discretion under the general requirements of the relevant contracts and work orders. Similar to the political question doctrine analysis, the Harris court found that the military did not direct KBR’s electrical work. With the second prong unsatisfied, the Third Circuit held the battlefield preemption doctrine did not preempt Maseth’s wrongful death state tort action against KBR.
However, courts inconsistently have applied the battlefield preemption doctrine to similar suits by military members. In a separate electrical hazard suit, U.S. Marine Peter Taylor was electrocuted and severely injured after a KBR technician negligently turned on a tank ramp generator while Taylor was operating it. The Fourth Circuit denied Taylor’s claim as a nonjusticiable political question. Two concurring opinions stated that even if the political question doctrine did not preempt review, the battlefield preemption doctrine would bar Taylor’s electrocution claim against KBR. This application expands the doctrine beyond its initial purpose. The doctrine was intended to protect missile contractors in Koohi and Abu Ghraib interrogators in Saleh.
Conversely, courts consistently have found that contractor electricians and non-combat flight crews neither function as nor work alongside soldiers performing combat tasks such as interrogating prisoners or driving fuel-tanker convoys through dangerous routes. While the Harris court held against KBR on the second prong of the Saleh battlefield preemption test, the court still expanded the doctrine beyond its original intent by finding that KBR’s electrical maintenance constituted a “combatant activity” under the first prong. Yet Koohi and Saleh focused on the standard of care owed only to those against whom force is directed as a result of combat. The original purpose of the doctrine is to protect contractors from liability at the expense of foreign enemies, not at the expense of military members that the contractors support outside of combat. The over-expansion of this implied federal doctrine leads to the conclusion that any service on a military base, such food supply or water treatment, constitutes a “combatant activity.” This issue justifies a federal tort statute giving courts a more distinct framework to apply.
V. Congressional Solution: Federal Statute Should Give Service Members a Cause of Action Against Contractor Negligence Outside of Military Control
To address these concerns, this Note proposes federal legislation as a means for service members to have a cause of action in holding contractors liable for non-combat related negligence outside of military control. Instead of bringing action under state tort law, the proposed Protecting Service Members’ Safety Act (PSMSA) would allow killed or injured U.S. servicemembers to bring a cause of action under federal law. This solution remedies the myriad issues of bringing such claims under state tort law.
First, this proposed statute will apportion damages from tort claims outside of military control under a joint and several liability system. This resolves the inconsistencies that stem from both divergent state law and the political question doctrine. Thus, under joint and several liability, contractor defenses of proximate cause and contributory negligence will not automatically raise political question concerns.
Second, the PSMSA would avoid conflict with the battlefield preemption doctrine because it would not apply when a contractor’s conduct is a result of military judgement, assistance, or inspection. These safeguards conform to the concerns in Koohi and Saleh because missile construction and interrogation require the judgement, assistance, or inspection by the military, whereas electrical services allow for contractor discretion. Further, this proposed federal statute addresses the Supreme Court’s concern in Boyle of a “significant conflict” between a unique federal interest and state tort policy by codifying the equally important federal interest of protecting service members from being killed or injured outside of combat. Finally, this federal cause of action can be brought only by killed or injured U.S. military, civil service, or foreign service members against military contractors while killed or injured overseas. It expressly excludes foreign plaintiffs like in Koohi and Saleh, thereby preserving the original intent of the battlefield preemption doctrine. Finally, from a procedural standpoint, contractor liability involving national security policy and overseas military operations should be governed by federal law, not state or foreign tort law.
This Note proposes the following language:
The Protecting Service Members Safety Act (PSMSA):
a. Where a United States Department of Defense, Department of State, or USAID Contractor breaches a reasonable standard of care through negligent conduct not requiring military judgement, assistance, or inspection outside of combat, that Contractor will be liable where its negligence injures or kills a U.S. military member, civil service member, or foreign service member;
b. Damages will be apportioned under a system of joint and several liability if the contractor is found liable under a reasonable standard of care;
c. This action can be brought only by, or on behalf of, any United States military member, civil service member, or foreign service member killed or injured while serving overseas;
d. Such action can be brought in any United States Federal Court within a statutory limitation period of five (5) years.
In Boyle, the U.S. Supreme Court noted placing tort liability on contractors would cause contractors to “second-guess” sensitive military decisions and increase contract prices, passing costs onto the government. However, imposing liability on contractors providing non-combat services like electrical repairs and water treatment will not impair the ability of helicopter or missile defense contractors under direct military control to take quick and decisive action. Further, profit-driven contractors like KBR are best positioned to avoid these injuries in the first place. Imposing liability incentivizes the more careful performance of contracts outside of combat, allowing service members to be more focused on the military objective and less concerned about the dangers awaiting them inside their barracks. The United States invests significant funds to protect the lives of soldiers during combat to defeat hostile enemies and win wars. The limited cost increase of liability on certain contractors does not outweigh the broader policy goal of protecting service members outside of combat to accomplish that same objective.
The PSMSA is necessary to protect U.S. service members who serve their country overseas, by providing them a federal cause of action when they are killed or injured by contractor negligence outside of military control and combat.
VI. Conclusion
When the next armed conflict arises, the U.S. military likely will rely on contractors just as heavily it did in Iraq and Afghanistan. These contractors are essential for successful military operations. However, courts must hold contractors accountable when they perform functions outside of combat and military control and when their negligence kills or injures U.S. service members. The inconsistent application of the political question doctrine and the over-expansion of the battlefield preemption doctrine unduly insulate contractors from liability under state tort law in military contracts, regardless of the connection to military instruction or combat, including activities such as toilet maintenance. As a result, contractors potentially are incentivized to cut costs by hiring unqualified electricians to perform electrical maintenance work because the risk of tort liability is substantially low. This leaves U.S. military, civil and foreign service members vulnerable without a proper remedy.
This Note’s proposed PSMSA would remedy this problem. The PSMSA would hold contractors liable for negligence when performing functions that do not require military judgement, assistance or inspection under a uniform system of joint and several liability. This federal statute is necessary to give U.S. service members and their families appropriate judicial relief when contractor negligence results in death or injury outside of combat. This PSMSA should be enacted before the next military conflict begins, wherever and whenever it occurs.
