The Boyle Defense currently prevents individuals injured by a government contractor from recovering damages if the government contractor can follow the three-step Boyle Defense test. This Note proposes two solutions that will allow a greater number of individuals injured by government contractors to recover damages successfully. First, the Note proposes limiting the Boyle Defense to only government contractors who are working on military contracts. Next, the Note proposes an alternative solution that prevents government contractors who are engaged in service-based contracts from using the Boyle Defense. These two limitations will reduce the number of government contractors escaping liability. As this Note will demonstrate, the current standing of the Boyle Defense needs to be limited in its application to allow those injured by government contractors a greater likelihood of being able to recover damages.
In June 1988, government contractors working with the U.S. federal government breathed a sigh of relief when the U.S. Supreme Court released the decision in Boyle v. United Technologies Corp. In Boyle, a government contractor manufactured a defective helicopter escape hatch, that led to the death of a U.S. Marine Corps pilot. The government contractor in Boyle was held to be immune from state tort liability under a new defense created by the Court. The lasting effect of Boyle has provided government contractors immunity from tort claims within this new defense (hereinafter the “Boyle Defense”). The Boyle Defense is employed when a contractor meets a three-factored test, which places the burden on the government contractor to show that “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” This impactful decision has come at a high cost to the general public and those within the U.S. Armed Services. Government contractors are still using the Boyle Defense for government contractor immunity. Before exploring this drastic decision and the three-factor test, this Note will provide background information relating to Boyle. Next, this Note will discuss the current standing of the law on government contractor tort immunity. Finally, this Note will propose two limitations to the Boyle Defense, which will allow for parties to have a higher probability of success against this defense raised by government contractors.
This section will discuss background information relating to the Boyle Defense, including the factual history of the Boyle decision, the Feres Doctrine and the Federal Tort Claims Act, a prior military government contractor defense, a brief discussion on cases employing the Boyle Defense, private military companies, the Gulf Cost Recovery Act, and the current standing of the Boyle Defense. Government contractors provide goods and services to the government. Since these goods and services could injure individuals, government contractors should be liable under state tort law for injuries caused by blindly following the government’s reasonably precise specifications. However, government contractors can escape this liability using the Boyle Defense, originating from the U.S. Supreme Court case of Boyle v. United Technologies Corp. Additionally, military government contractors may look for a broad-based defense in the Feres Doctrine, but this is not applicable for service-based government contractors outside the scope of military affairs. The Feres Doctrine will help explain why limiting the Boyle Defense to military contracts is necessary. Further, Private Military Companies (PMCs) and their use in government contracts will be discussed, as will the failed Gulf Coast Recovery Act. Last, this Note will analyze the current standing of the Boyle Defense.
Boyle v. United Technologies Corp. was the U.S. Supreme Court decision that created the government contractor immunity defense. The Court’s decision in Boyle has allowed government contractors to escape liability when contracting with the federal government.
On April 27, 1983, the U.S. military conducted a field exercise called “Operation Solid Shield 83.” Operation Solid Shield 83 was a multi-branch field operation that involved the U.S. Navy and U.S. Marine Corps. The operation entailed service members practicing helicopter take-off, landing, and troop transportation exercises off the Virginia coastline. A Marine Corps CH-53D helicopter used in Operation Solid Shield 83 was piloted by Captain Bert Tussing and his copilot, First Lieutenant David Boyle. Two other Navy personnel were also on board. Prior to the fatal crash, Lieutenant Boyle was piloting the helicopter and tasked with landing it on the deck of the USS Shreveport. Lieutenant Boyle was described as “a brand-new pilot in the squadron. He was “low time in the CH-53D,” but had been an above average student at flight school.” Lieutenant Boyle was practicing a rehearsal landing, which is designed to train helicopter pilots to hover near the water’s surface. After successfully completing the rehearsal practice landing earlier that day, Lieutenant Boyle and the crew were radioed to complete the rehearsal landing one more time.
Lieutenant Boyle and the helicopter crew had completed the second rehearsal landing and were radioed to fly back to the USS Shreveport and land on its deck. As the helicopter was coming in for the landing, Boyle overshot the landing deck, crashed into the water, and was forced to perform a controlled water landing. After crashing into the water, Captain Tussing, “reached for the pilot’s window emergency release” and “pushed the window out and released his harness as the aircraft cockpit began rolling to the right.” When Captain Tussing surfaced, he saw the other crewmembers but did not see Lieutenant Boyle. The surviving crew were rescued and taken to the USS Nassau. Lieutenant Boyle had survived the initial crash but was unable to escape from the helicopter using the escape hatch and drowned.
After learning of the death of their son, Lieutenant Boyle’s family filed a lawsuit in the Eastern District Court of Virginia suing the manufacturer of the helicopter, Sikorsky Aircraft. Sikorsky Aircraft was a division of United Technologies Corporation, a military government contractor that supplied aircraft to the U.S. Armed Services. The complaint alleged Sikorsky Aircraft manufactured and designed a defective escape hatch for the helicopter, which prevented the hatch from opening inward. Sikorsky manufactured the escape hatch to be opened outward. The district court returned a verdict in favor of Lieutenant Boyle’s family. The district court applied state tort law and was not persuaded by the contractor’s argument of a government contractor immunity defense. However, the U.S. Court of Appeals for the Fourth Circuit reversed the decision and directed a judgment for Sikorsky.
Lieutenant Boyle’s family appealed to the U.S. Supreme Court. The U.S. Supreme Court granted certiorari. After hearing this case, the Supreme Court applied what came to be known as the government contractor immunity defense (the Boyle Defense), which allows government contractors to follow a three-step test to claim immunity from state tort liability. The Supreme Court created a three-step test that requires a government contractor seeking tort immunity to show that “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” This three-step test is now known as the Boyle Defense and allows government contractors to escape state tort liability.
Lieutenant Boyle’s family sued the U.S. government under the Federal Tort Claims Act. In 1946, Congress passed the Federal Tort Claims Act, which enabled individuals injured by a United States’ entity to sue the federal government. However, a caveat to this Act is the Feres Doctrine. Under the Feres Doctrine, U.S. military personnel cannot sue the government for damages or injuries that took place during one’s time in the military while on active duty. The Feres Doctrine affords immense protection to the federal government when active-duty military members are injured.
The Boyle Defense was created in 1988. However, before 1988, military government contractors employed a defense that blended the Feres Doctrine with government contractors, as seen in Tozer v. LTV Corp. In Tozer, a U.S. Navy pilot was killed while flying a U.S. Navy plane. The pilot’s family sued the manufacturer of the plane and alleged the manufacturer incorrectly designed the plane. The circuit court held that the manufacturer designed the aircraft to the Navy’s specifications and could not be liable since it was following the government’s discretion. Additionally, the court reasoned that government contractors who worked on military government contracts should not be held liable for injuries when they followed government-approved military specifications. This holding prevented the pilot’s family from recovering damages against the government and manufacturer of the plane that resulted in the pilot’s death. Tozer provides insight into a court’s reasoning as to why government contractors should be immune from tort claims.
Since the Supreme Court created the Boyle Defense, government contractors have successfully used the Boyle Defense to escape state tort liability. Some notable cases include (1) Badilla v. Midwest Air Traffic Control Service, Inc., (2) Saleh v. Titan Corp., and (3) Hudgens v. Bell Helicopter/Textron. The specifics of these cases and their implications will be discussed in the coming paragraphs. Some of these cases help demonstrate how government contractors engaged in service-based contracts can escape liability by using the ambiguous standard of a “reasonably precise specification.”
In Badilla, the government contractor, Midwest Air Traffic Control (Midwest), was employed to provide services for an airport. Midwest was to train employees in the air traffic control tower and help coordinate planes landing at the airport. A commercial airplane crashed into the Afghanistan mountains when attempting to land at the airport that Midwest was directing. The families of the victims who died in the airplane crash sued Midwest for operating the radar scanners; Midwest defended the claim by employing the Boyle Defense. The Second Circuit found that Midwest was following the “reasonably precise specifications” of operating the radar station and was not liable for the crash.
Another example of service-based government contractors escaping liability for alleged tortious actions can be seen in Saleh. In 2003, the United States invaded Iraq following the terror attacks of September 11, 2001 (9/11). During the Iraq war, the United States repeatedly employed PMCs through government contracts to help aid the U.S. military and rebuilding efforts in Iraq. Specifically, the United States employed two PMCs—Consolidated Analysis Center, Inc. (CACI) and Titan Corporation (Titan). CACI and Titan were to help provide “services” in the form of employing, training, and providing prison guards to the prison per their contracts with the U.S. government for the Abu Ghraib prison in Iraq. Throughout their employment at the prison, these two government contractors were alleged to have tortured Iraqi prisoners. Once the Iraqis were freed, the former prisoners sued the American government contractors in the United States, and their lawsuit was dismissed because CACI and Titan employed the Boyle Defense successfully. The D.C. Circuit in Saleh held that CACI and Titan could invoke the Boyle Defense because they were government contractors employed by the United States for defense contracting, and, thus, the contractors should not be liable because of the government’s “uniquely federal interest” in completing government contracts.
Hudgens v. Bell Helicopters/Textron provides an example of courts using the “reasonably precise specification” standard. In Hudgens, the U.S. Army contracted with the government contractor Hudgens to provide repair services for Army helicopters. The contract required the government contractor to provide inspections and repairs “every day a helicopter is flown.” Included in the contract were “well over a thousand” instruction pages detailing how Hudgens would repair and inspect the helicopters to the government’s satisfaction. The plaintiffs in Hudgens were injured in a helicopter crash and alleged that Hudgens’s repairs made it defective. Hudgens employed the Boyle Defense and was successful in this suit; he was thereby found not liable for negligently repairing the helicopter.
These three cases showcase how the Boyle Defense has been applied to service-based government contracts since the U.S. Supreme Court created the Boyle Defense. There is arguably ambiguity in how courts are applying the Boyle Defense. Limitations should be placed on the Boyle Defense, allowing individuals harmed by government contractors to recover damages for their injuries.
PMCs are quasi-military private companies that contract with countries and individuals for various reasons. PMCs are comparable to multinational corporations, except that PMCs are heavily armed and are for-hire militia fighting forces that can be deployed overseas. A popular reason for hiring PMCs includes “performing . . . military functions.” PMCs are increasingly popular and have been used by the United States and Russia during these countries’ most recent wars, notably the Iraq War and the Ukraine-Russia War. A few notable PMCs include Blackwater (currently known as Constellis Group) and the Wagner Group. These two firms have been embroiled in controversy over the years for their quasi-military conduct in foreign countries. Since the U.S. government contracts with PMCs, PMCs have been using the Boyle Defense to defend themselves from lawsuits that involve their tortious behavior causing injuries to individuals.
After natural disasters, the U.S. government will contract with government contractors to help engage in cleanup efforts to repair damaged infrastructure. In 2007, Hurricane Katrina hit the Gulf Coast of the United States. After Hurricane Katrina, the Gulf Coast of the United States was devastated, and more than seven states reported major damage to their infrastructure. In order to revitalize and repair the area affected by Hurricane Katrina, the U.S. government contracted with the civilian sector to repair the damaged Gulf Coast.
The cleanup efforts by the government during Hurricane Katrina were compared to the cleanup efforts of 9/11. The comparison was rooted in the fear that government contractors would not enter cleanup contracts because of liability issues showcased through lawsuits following from 9/11. In response to the 9/11 cleanup, government contractors faced tort liability allegations that they did not “adequately protect their employees” from the dangers at Ground Zero. The U.S. Congress attempted to pass the Gulf Coast Recovery Act to encourage government contractors to enter the cleanup contracts post-Hurricane Katrina. The Gulf Coast Recovery Act would have provided government contractors immunity from torts resulting in the services required of the contractor. This legislation ultimately did not pass in Congress, but it can help showcase the legal theory behind holding government contractors not liable for the certain types of contracts they enter into—even cleanup contracts.
The story of First Lieutenant Boyle is comparable to other stories relating to government contractors injuring or killing civilians and armed service members. To successfully apply the Boyle Defense, the government contractor needs to follow the three-step defense that allows the government contractor to be immune because of the government’s “uniquely federal interests” for “getting the Government’s work done.” The Boyle Defense encourages government contractors to finish the work they were hired to complete with less fear of facing liability for their products. Moreover, the Boyle Defense intended for the government to receive goods promptly that subscribed to the government’s precise specifications. Additionally, if the government has created a contract that involves precise specifications that may create liability, the contractor may be able to escape liability if it simultaneously involves uniquely federal interests.
The Boyle Defense will prevent a court from enforcing a state’s tort law if the government contractor can follow the three-step defense listed above. However, this test goes beyond protecting government interests and can protect contractors to the detriment of citizens. For instance, a defendant government contractor only needs to show these three elements are met for a complaint in a possible tortious lawsuit to be dismissed. Government contractors can easily employ the “get out of jail free card.”
The Boyle Defense should be limited in its application to allow an injured plaintiff to bring a successful suit against the government contractor. This Note does not propose eliminating the Boyle Defense. Rather, this Note proposes limitations in addition to the current three-step Boyle Defense. The first restriction placed on the Boyle Defense should include limiting its applicability to only government military contracts. This limitation will allow for greater tort claims from the civilian sector and will be applied to the existing Boyle Defense. A second limitation should prevent government contractors, both civilian and military, engaged in service contracts from employing the current Boyle Defense. This restriction would prevent contractors from escaping liability while performing arbitrary and ambiguous tasks in furtherance of a service contract. In service-based contracts, the contract may not define specific steps and leave performance terms ambiguous. These two proposed limitations will increase the probability of parties injured by government contractors to bring successful suits and recover damages. The government contractor will not be allowed to escape state tort liability because the Boyle Defense will no longer be applied to civilian government contracts or service-based government contracts.
The need for the U.S. Armed Services to procure goods and services should allow government contractors working with the Department of Defense (DoD) to employ the Boyle Defense. The U.S. military has largely influenced government procurement law and the legal field. Further, the U.S. military has its own legal code. The birth of government contracts originated in the United States’ need to procure goods and services for its military. This concept is exemplified in the facts surrounding the creation of the Boyle Defense, in which Sikorsky provided helicopters to the U.S. military. First, government contractors and the U.S. government are given protection from tort claims under the Feres Doctrine. This doctrine shields the federal government and contractors whose goods are used in combat zones and cause injury to active-duty military personnel. Next, the Boyle Defense should apply to those who contract with the U.S. military because the goods and services that they procured are unique to the military. Last, the United States has allocated large swaths of money for the DoD to use for discretionary spending, which helps explain the federal government’s emphasis on military contracts. These three factors showcase why contractors who work with the United States military should be the only ones afforded protection under the Boyle Defense.
The Feres Doctrine is comparable to and should be merged with the Boyle Defense given the government’s need to procure military goods. The Boyle Defense should only be employed by military contractors whose goods are used in active duty and/or combat situations. This limitation will prevent contractors from escaping liability in the civilian sector. Only contractors who follow the three-step Boyle Defense and manufacture goods that can be used in active-duty service will be allowed to use the Boyle Defense, limiting a contractor’s ability to employ the Boyle Defense in the civilian sector. Civilians will have greater success in suing and receiving award rulings from contractors because government contractors engaged in non-DoD contracts will be unable to employ the Boyle Defense. Manufacturers who work in the civilian sector will need to increase their prices for government contracts or collaboratively work with the government to minimize liability by reworking specifications that may cause injury. By collaboratively working with the government, government contractors could potentially help maximize the safety of their goods by discussing design specifications that may cause injury. This collaboration will ultimately produce safer goods designed for the civilian sector and allow for those injured by civilian government contractors to recover damages. By blending the Feres Doctrine with the Boyle Defense and further limiting its application to only government contractors whose goods may have the potential to be used in active-duty situations, contractors will still need to follow Boyle’s three-step test.
Currently, the Boyle Defense provides freedom from state tort claims to contractors who work with the federal government that produce goods and services that conform to the government’s precise specifications. The Boyle Defense is based on the government’s “uniquely federal interest” and should only be extended to contractors working with the United States military. Courts have supported this limitation, as stated in the Tozer decision, when the court stated that “[i]t is difficult to imagine a more purely military matter than that at issue in this case—the design of a sophisticated reconnaissance craft.” This court suggests that a government contractor defense should be limited to military contractors who provide goods to the U.S. Armed Services because of the military’s need for precise specifications that are inherently complex, unique, and reliable. The goods provided to the U.S. military by contractors need to be reliable since they are imperative to national defense. However, this restriction will limit the Boyle Defense to contractors working with the U.S. military. This will allow non-military personnel injured by government contractors to recover damages for their injuries.
Further, limiting the Boyle Defense to contractors who provide goods to the U.S. military allows a limited class of individuals to be restricted in recovering damages for tort liability. Currently, the Boyle Defense is used in both the military and civilian sectors. But the Boyle Defense, “[b]y its nature . . . creates a tension between the immunity used to secure the government’s ability to procure necessary equipment, materiel, and services, especially in the military context, and depriving an injured party of a tort remedy.” If the Boyle Defense were limited to only military contractors, more individuals would be able to recover damages. This will make it more difficult for a government contractor to escape liability for causing damages by indiscriminately following the government’s specifications in the civilian sector.
Additionally, the Boyle Defense should be limited to military contracts because of the government’s need to have discretion in procuring goods for the military. Discretion is important when working with the military because of the complexity of the goods being procured. The complexity of these goods ranges from small arms and computers to advances in medical technology. Further, there is a historical emphasis on limiting the Boyle Defense to government contracts because of how the Supreme Court’s decision that created the Boyle Defense was applied to a government contractor providing military goods.
As noted above, the origins of government contracting arose from a need for the United States to provide goods for its military. This need supports the notion that the Boyle Defense should be limited to contractors working for the U.S. military. Other circuit courts have cited the importance of the historical context of government procurement. The court in Tozer states that “[i]ts application to military contractors, however, serves more than the historic purpose of not imposing liability on a contractor who has followed specifications required or approved by the United States government.” This statement supports the notion of how the Boyle Defense should only be extended to military contractors because of the military’s unique design specifications, along with the historical emphasis of the Boyle Defense in the government procurement field. The specialized nature of the goods that the military procures and what the contractors are designing help demonstrate why the Boyle Defense should only apply to contractors working for the U.S. military.
Furthermore, the Supreme Court limiting the Boyle Defense would support its intended use for promoting national security interests. The U.S. military constantly needs to update its weapons to be efficient against other militaries, which would protect government contractors who are developing untested goods. As previously stated, if the Boyle Defense is limited to DoD contracts, then only a small handful of the American population will be prevented from suing contractors if injured. The need for the U.S. military to procure complex goods, the limited number of individuals affected by military contractors, and the historic emphasis on military contracts should allow the Boyle Defense only to be employed by contractors working on military contracts. This will prevent civilian contractors from employing the Boyle Defense and allow individuals to recover damages based on contractors following government specifications. The current standing of the Boyle Defense needs to be changed. The change needs to reflect the goals embodying contracting with the U.S. military and allowing civilians to recover damages against government contractors supplying goods and services in the civilian sector.
The large emphasis the federal government places on having the U.S. military procure goods can be seen in its allocation of funds to the DoD. Every fiscal year (FY), the United States government creates a budget detailing how it will allocate and spend its funds for a given year. For FY2022, the United States’ budget was roughly 6.011 trillion dollars. This budget carefully details and breaks down the different categories of government spending. One category includes spending for the DoD, which is a large slice of the pie. The amount of money that the federal government has allocated to the DoD is further separated into different categories, including government procurement for military goods. For FY2020, the DoD was given 421.8 billion dollars to spend on government contracts. The 421.8 billion dollars included spending on contracting services such as building military bases, procuring fighter planes, and manufacturing other military goods. This large allocation of funds for the military to procure goods and services shows the government’s emphasis on military government contracts.
The allocation of funds in the yearly budget shows the need to limit the Boyle Defense to just contractors engaged in military contracts. The United States spent almost double what was allocated to civilian federal agencies for FY2020. Additionally, the amount of money allocated to military government contracts reinforces the notion that the military is procuring goods that have not yet been developed and tested for a consumer market. By limiting the Boyle Defense to only military contracts, civilians can have a greater chance of recovering damages from contractors who incorrectly or blindly follow the government specifications. Limiting the Boyle Defense to contractors working with military contracts allows the budget to accurately reflect the emphasis that the government places on military contracts and will support the need for military contractors to use the Boyle Defense. By following the trail of money allocated by the United States’ budget, one can see the emphasis that the United States places on military contracts and supports why government contractors working on military contracts should be afforded the Boyle Defense.
To limit the Boyle Defense’s applicability to only contractors working with the U.S. military, the Supreme Court needs to overturn the circuit courts’ rulings that have expanded the Boyle Defense to military and non-military contracts. The Boyle Defense has slowly eroded the civilian sector’s ability to keep contractors working with the federal government liable for their tortious behavior. By reversing the Third, Seventh, and Eleventh Circuits rulings, individuals harmed by civilian federal government contractors can more easily be compensated for their injuries. Finally, the historical context of the development of government procurement law and the Boyle Defense reiterates the need that military contracts should be the only type of contracts that should employ the Boyle Defense. By limiting the Boyle Defense to military contractors, non-DoD-focused government contractors will be unable to skirt immunity and will pay damages to those injured by their goods.
The Boyle Defense is rooted in the belief that the government has a “unique federal interest” in procuring goods and services that it needs. This belief is reinforced by the notion that the government will give the contractor precise specifications, and both parties are made aware of the potential for liability. This allows a government contractor and the government itself to escape liability because the government contractor was following the government’s plans in procuring goods and services. As mentioned, the government can engage in both service and goods-based contracts. Further, the Boyle Defense currently extends to both military and non-military contracts. Discretion can be protected under the Boyle Defense when government contractors are engaged in service-based contracts.
Limiting the Boyle Defense’s applicability to not cover government contractors who procure service-based goods will increase lawsuits against these government contractors. The Boyle Defense can be disastrous for those injured by government contractors engaged in service-based contracts. By limiting its application to service-based contracts, individuals harmed by government contractors will be able to recover damages. These damages are likely the result of government contractors overstepping a “reasonably precise specification” outlined in the Boyle Defense test.
Government contractors engaged in service-based contracts provide services ranging from painting dams to providing air-traffic control for an airport overseas. The case of Saleh is an extreme; however, the outcome from Saleh could apply to all government contractors providing services to the U.S. government. As long as a government contractor is providing services to the U.S. government and following a “precise specification” with a “unique federal interest,” then the government contractor can escape liability and not be held liable for damages for their tortious behavior. Further, other circuits, including the Fourth and Eleventh Circuits, have supported the holding in Saleh. This has led a majority of lower courts to allow for a government contractor providing services to the government to successfully employ the Boyle Defense if they are following the government’s “reasonably precise” specification.
Government contractors engaged in service-based contracts should not be allowed to employ the Boyle Defense. As Saleh demonstrates, government contractors can escape liability for their tortious behavior by following the government’s specifications. CACI and Titan were able to torture Iraqi detainees because the government gave them reasonably precise specifications of “operating” the Abu Ghraib prison in their contract. The author of this Note does not believe “operating” a prison is a reasonably precise specification that allows contractors to escape liability for torturing Iraqi detainees. Torture victims should be able to recover under tort law, as fifty-six percent of Americans believe it is wrong.
American jurisprudence is arguably ambiguous about what constitutes a “reasonably precise specification.” Excluding CACI and Titan’s actions, other government contractors were able to escape liability for their tortious actions on more detailed “precise specifications,” as demonstrated in Hudgens. In Hudgens, the contract provided that the contractor would repair UH-1 aircraft according to forms provided by the government. The forms included “a series of inspections to be completed every day a helicopter is flown; another prescribes a more intensive series of procedures to be carried out at longer intervals’ and a third manual, spanning well over a thousand pages, prescribes appropriate means for repairing a variety of defects.” This description is a clear example of the government providing “reasonably precise specifications.” However, the American judicial system has allowed for an unclear definition of what is considered a “reasonably precise specification” when performing service-based contracts. From Saleh and Hudgens, one can see that when the Boyle Defense is applied to service-based contracts, the range of “reasonably precise specifications” is ambiguous and can lead to disastrous results.
To prevent service-based government contractors from getting a “get out of jail free card” by using the Boyle Defense, the Boyle Defense should be limited in its application to only government contracts for procuring goods. The “reasonably precise specifications” prong in the three-step Boyle Defense test, without any limitations, allows for a government contractor to employ discretion in completing a service-based contract. This discretion allows government contractors greater protection against their tortious behavior and prevents those injured by government contractors from recovering damages. To eliminate the Boyle Defense’s applicability to service-based contracts, the U.S. Supreme Court can help facilitate this change.
One way to limit the Boyle Defense’s applicability is to have the U.S. Supreme Court define a “reasonably precise specification.” The U.S. Supreme Court could end the phrase’s ambiguity by holding the Boyle Defense only applies to government contracts for procuring goods. This limitation could support a uniform definition of a reasonably precise specification because government contractors may have less discretion in completing design specifications given in goods-based government contracts. This limitation would have benefited the plaintiffs in Saleh and Hudgens where the government contractor’s discretion led to grievous injuries.
The U.S. Supreme Court should hold that the “reasonably precise specification” requirement by the government is not detailed enough to cover government contractors in service-based contracts. This ruling would allow parties injured by service-based government contractors the ability to successfully bring a tort suit and not have their case dismissed under the Boyle Defense. This would allow for justice to be served because individuals harmed by government contractors will be able to receive monetary compensation for the government contractor’s tortious conduct in completing a service-based contract that causes injury.
Also, there are few discretionary steps government contractors take in contracts that require procuring goods because the finished goods must conform to the specifications that the government requested. This is reinforced by several courts’ belief that “an average contractor cannot be expected to possess the expertise needed to examine every design it is given.” This shows how the law trusts that the government has the final decision on how a contract should be completed and should not be left for the government contractor to have full discretion. If the U.S. Supreme Court were to prevent the Boyle Defense’s application to service-based contracts by holding that the “reasonably precise specification” requirement in the Boyle test does not apply to service-based contracts, then government contractors will not be allowed discretion in completing their contracts that may cause injury to a party.
The U.S. Supreme Court should also definitively rule against legislation from the U.S. Congress like the Gulf Coast Recovery Act. The Gulf Coast Recovery Act was to encourage government contractors to enter into the cleanup contracts after Hurricane Katrina. The Gulf Coast Recovery Act would provide government contractors immunity relating to the particular type of government contract entered into. The concept behind the Gulf Coast Recovery Act can be supplemented by the U.S. Supreme Court limiting the Boyle Defense. Specifically, the U.S. Supreme Court could take the general theme from the Gulf Coast Recovery Act and apply it to a new court-created legal doctrine that supplements the Boyle Defense.
A new legal doctrine created by the Supreme Court could require the government contractor to demonstrate an extraordinary need by the government, necessitating the contractor to have discretion in finishing a service-based contract. Support for the creation of a new legal doctrine by the Supreme Court is rooted in the creation of the Boyle Defense. The U.S. Supreme Court created the Boyle Defense and has the power to correct its creation. The Supreme Court could amend or create a new Boyle Defense to limit the scope of how the Boyle Defense will be applied and increase the likelihood a party injured by a government contractor can recover damages, forcing the U.S. government to focus on the “reasonably precise specifications” outlined in the contract. After the Supreme Court amends the Boyle Defense, service-based contracts should be comparable to the one in Hudgens, where the government outlined over a thousand pages of manuals for the contractor to complete the service-based contract. Additionally, this will force the government to rethink what constitutes a “reasonably precise specification.” If the Supreme Court amends the Boyle Defense, ambiguous terms used to describe working at a prison during the Iraq War, like in Saleh, would no longer be permitted. Therefore, the government contractors in Saleh would be liable for their tortious behavior because they were not based on following the government’s “reasonably precise specifications.”
If the Gulf Coast Recovery Act’s concept were adopted by the U.S. Supreme Court, it would limit the Boyle Defense to contracts that are only for goods and not service-based. A government contractor will not have unyielding discretion to partake in the activities listed under a “reasonably precise specification” for service-based contracts unless there is an extraordinary need by the government. This will require the government to implement clearer “reasonably precise specifications” before drafting service-based contracts, promoting government specifications that will not harm the public. By limiting the Boyle Defense’s application for contracts for procuring goods, individuals harmed by service-based government contractors will finally receive monetary compensation for the damages caused by the government contractor. Also, the Boyle Defense’s three-step test reinforces the notion of limiting the Boyle Defense to only goods-based contracts. The Boyle Defense’s first and second prongs require the government to have designed a reasonably precise specification that the government contractor must follow in manufacturing the completed product. By having the Boyle Defense apply only to contracts dealing with goods, government contractors performing services will be held liable even if they follow government specifications.
Limiting the Boyle Defense’s application to only contracts for procuring goods creates problems that need to be preempted. One negative consequence of this limitation would be the increased cost of service-based government contracts. Service-based government contracts would increase in cost because of the fear of the potential liability and the cost of litigation. It is also possible that the government will need to outsource its needs by contracting with the public. The sheer amount of work the government needs to properly operate forces the government to contract with private firms because of the private firms’ ability to provide advanced technology and have more resources available than the government. The increase in potential for liability will increase prices for government contracts because contractors will need to purchase insurance, which will limit their potential for liability in future litigation.
However, if the government contractor is hesitant about the potential for litigation, they should request the government be more precise in their specifications. The law often treats the contractor as not having expertise in performing government contracts, which may shield the contractor from liability by requesting the government to be more precise in its specifications. Overall, limiting the Boyle Defense’s application to government contracts that are only for procuring goods and not extending the Boyle Defense to service-based contracts will allow for a greater number of individuals who are harmed by government contractors to recover damages, and the potential shortfalls are easy to overcome.
Since the decision in Boyle, government contractors have been able to escape tort liability by following a three-step test outlined in the decision. The three-step test requires the government contractor to show that the federal government approved reasonably precise specifications, the goods or services given to the government conformed to those specifications, and the government contractor warned the government about the dangers in the goods or services provided that were unknown to the government. This three-step test—the Boyle Defense—allows a government contractor to escape liability and prevents those injured by a government contractor from recovering damages. The Boyle Defense applies to contracts for goods and services in the civilian and military sectors.
To prevent government contractors from escaping liability, the Boyle Defense should be limited in its application. One such limitation of the Boyle Defense would be to limit its application to only military contracts. This would prevent government contractors in the civilian sector from raising the Boyle Defense. Limiting the Boyle Defense to military contracts is rooted in the history of government contracts. Further, limiting the Boyle Defense to military contracts will only prevent a small portion of the American population from recovering damages against government contractors.
An additional yet separate limitation to the current Boyle Defense would be to prevent service-based government contractors from employing the Boyle Defense. Discretion in service-based contracts has been construed broadly by the American legal system to allow the government contractor to escape liability for its discretion if it complied with the government’s “reasonably precise specification.” Limiting the Boyle Defense to contracts for procuring goods will prevent the discretion in service-based contracts that could harm the public. This will encourage the government to write detailed specifications comparable to the Hudgens case.
In sum, the goal of this Note is to draw attention to the current ability of government contractors to escape liability for their tortious actions. A new standard should be adopted that will allow government contractors to pay damages for those injured, whether by reworking the current Boyle three-step test or limiting its applicability to certain government contracts.
