“Military control requires evaluation of military decisions because if the contractor is simply doing what the military ordered it to do, then review of the contractor’s actions necessarily includes review of the military order directing the action.”
How later courts described this case
- “Military control requires evaluation of military decisions because if the contractor is simply doing what the military ordered it to do, then review of the contractor’s actions necessarily includes review of the military order directing the action.”
- “[W]here the military does not exercise control but merely provides the contractor with general guidelines that can be satisfied at the contractor’s discretion, contractor actions taken within that discretion do not necessarily implicate unreviewable military decisions.”
- holding that military-contractor defendant must show evidence of servicemember’s negligence to support that its negligence defense implicates political question
- “Defense contractors do not have independent constitutional authority and are not coordinate branches of government to which we owe deference.”
Written by the judges who cited it.
The opinion
Supreme Court of Texas
══════════
No. 20-0270
══════════
Nicole Van Dorn Preston, as Surviving Spouse and Personal
Representative for the Estate of Lt. J. Wesley Van Dorn, USN,
Deceased; Amy Snyder, as Surviving Spouse and Personal
Representative for the Estate of Lt. Sean Christopher Snyder,
USN, Deceased; Cheyenne Collins, as Surviving Spouse and
Personal Representative for the Estate of Petty Officer 3rd Class
Brian Andrew Collins, USN, Deceased; and Petty Officer 2nd
Class Dylan Morgan Boone, USN,
Petitioners,
v.
M1 Support Services, L.P.,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Second District of Texas
═══════════════════════════════════════
Argued September 14, 2021
JUSTICE BLAND delivered the opinion of the Court.
Justice Young did not participate in the decision.
In American K-9 Detection Services v. Freeman, 1 we recognized
the political question doctrine in Texas state courts for cases involving
the military. In adopting this separation of powers principle, we were
careful to observe that state courts retain jurisdiction over “ordinary tort
suits” capable of judicial management. 2 Abstention based on a political
question thus requires a case-specific examination to determine whether
judicial review of military action in a suit inappropriately encroaches on
the Executive Branch’s constitutional authority over the armed forces.
In such circumstances, we do not allow judicial second-guessing.
In this case, a private contractor maintained a fleet of aging Navy
helicopters. When one crashed during a training exercise, the families
of the deceased servicemembers and a survivor sued the contractor,
alleging claims under the Death on the High Seas Act and maritime
law. 3 The trial court dismissed the suit for lack of subject-matter
jurisdiction, ruling that questions of military judgment render this case
nonjusticiable. The court of appeals affirmed.
Applying American K-9’s principles, we conclude that the issues
presented here are capable of judicial management without interfering
with the military’s judgment. Accordingly, we reverse and remand.
1556 S.W.3d 246 (Tex. 2018). “The political question doctrine excludes
from judicial review those controversies which revolve around policy choices
and value determinations constitutionally committed for resolution to the halls
of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v.
Am. Cetacean Soc., 478 U.S. 221, 230 (1986).
2 Am. K-9, 556 S.W.3d at 254.
3 46 U.S.C. § 30301, et seq.
2
I
A
In January 2014, a Navy MH-53E helicopter caught fire 100 feet
above sea level and crashed into the Atlantic Ocean off the Virginia
coast. Three aboard the aircraft—Lieutenant J. Wesley Van Dorn,
Lieutenant Sean Snyder, and Petty Officer Third Class Brian Collins—
died. Two others, including petitioner Petty Officer Second Class Dylan
Boone, were injured.
The Navy recovered the wreckage. Upon inspection, its
investigators discovered two holes in the helicopter’s aluminum fuel-
transfer tube and visible evidence of chafing damage surrounding the
breached areas. The holes in the transfer tube would have allowed fuel
to leak into the cabin of the aircraft. Investigators suspected that the
same chafing exposed poorly insulated wiring, igniting the leaked fuel.
Although it was not recovered, investigators further suspected that a
wire bundle held together by a plastic zip-tie had rubbed against the fuel
tube, causing the chafing damage.
Respondent M1 Support Services, L.P., a Texas-based private
contractor, performed “phase maintenance” for the aircraft about three
months before it crashed. Phase maintenance requires a top-to-bottom
helicopter inspection and repair of any mechanical discrepancies. M1
completed the maintenance and marked the helicopter “safe for flight.”
M1 performed its work according to a Navy-provided Performance
Work Statement. The work statement required M1 to use “applicable
publications, technical directives, instructions, standards, and
3
procedures contained in pertinent manuals,” as well as Navy-provided
“blueprints, drawings or schematics.”
Through these directives—presented in a series of maintenance
cards—the Navy prescribed the qualifications and number of M1
employees who were to perform the work and the time allotted to
perform it. The Navy regularly inspected M1’s activities, although the
parties dispute whether these inspections involved more than a review
of M1’s paperwork. In one maintenance card directing M1’s activities,
the Navy expressly required that M1 check the “[f]uel and vent lines in
[the helicopter’s] cabin for leakage, chafing, obvious damage, and
security.”
B
Petty Officer Boone and the families of the deceased servicemen—
the petitioners here—sued M1 for damages under the Death on the High
Seas Act and general maritime law. The petitioners allege that M1
negligently failed to detect and repair damage to the fuel-transfer tube
and the wire bundle during M1’s phase maintenance, which in turn
caused their injuries.
M1 denies the petitioners’ allegations. It asserts several defenses,
including the “proportionate responsibility of Plaintiffs and non-
parties.” M1 further asks that the trial court apply settlement proceeds
obtained from other defendants as credits should the court render any
judgment against it. 4
4 Four product-liability defendants resolved the petitioners’ claims
against them in the United States District Court for the District of Connecticut
in December 2016 and January 2017.
4
When discovery was nearly complete, M1 moved for summary
judgment, raising the government-contractor defense to liability that
the Supreme Court recognized in Boyle v. United Technologies Corp. 5
The trial court never ruled on that motion. In the interim, M1 sought to
dismiss this suit for lack of subject-matter jurisdiction, relying on our
recent decision in American K-9. In its jurisdictional plea, M1 argued
that the adjudication of this case is inextricable from judicial review of
military decisions, raising the prospect of political interference of the
sort that had made the claims in American K-9 nonjusticiable.
In support of its plea, M1 adduced statements from naval officers
who averred that the Navy commonly used spare parts obtained from
inoperable aircraft for repairs on the helicopter fleet. One officer related
an instance in which the Navy requested she maintain an aircraft
without the proper technical manuals. And M1 observed that the
command investigation recognized that the Navy had inspected the
crashed helicopter before the accident and authorized it safe for flight.
These complaints involve the Navy’s maintenance procedures, M1
argued, and thus adjudicating the petitioners’ claims would require the
trial court to evaluate the Navy’s decisions.
The petitioners responded that, unlike the questions presented in
American K-9, this case simply involves the proper maintenance of a
particular aircraft. The Navy required M1 to inspect and replace
defective fuel lines, and M1 allegedly failed to do so in compliance with
those requirements. These claims do not require second-guessing of the
5 487 U.S. 500, 512 (1998).
5
Navy’s military judgment, the petitioners urged, but an analysis of
whether M1 complied with the Navy’s maintenance procedures. Any
review of the Navy’s actions in this case thus does not infringe on its
strategic decision-making. In short, as we anticipated in American K-9,
this case is an ordinary tort suit that is “subject to judicial review.” 6
The trial court granted M1’s plea, concluding that this case would
“inextricably involve a reexamination of professional Navy decisions
beyond the Court’s power to conduct” and would require “judicial second
guessing” of the Navy’s “procurement and maintenance” decisions. Such
second-guessing, it ruled, runs counter to the political question doctrine
we outlined in American K-9. The court of appeals largely adopted the
trial court’s reasoning, holding that the Navy maintained control over
some of M1’s operations. 7 We granted review.
II
A
Congress has the power to declare war and to raise and support
the military, and the President is the Commander in Chief of the armed
forces. 8 Even as the Supreme Court acknowledged the judiciary’s power
to determine whether actions of the political branches are lawful in
Marbury v. Madison, it recognized the limits of this principle. 9 When the
Executive Branch acts within its constitutional discretion, “nothing can
be more perfectly clear than that their acts are only politically
6 Am. K-9, 556 S.W.3d at 254, 257.
7 628 S.W.3d 300, 314 (Tex. App.—Fort Worth 2020).
8 U.S. Const. art. I, § 8; art. II, § 2.
9 5 U.S. (1 Cranch) 137, 166, 177 (1803).
6
examinable.” 10 Thus, as a matter of separation of federal power, the
Judicial Branch has declined to review military action “intended by the
Constitution to be left to the political branches directly responsible . . .
to the electoral process.” 11 The political question doctrine insulates
decisions constitutionally committed to the other branches from judicial
second-guessing. 12
The Supreme Court examined the contours of the federal political
question doctrine in Baker v. Carr. 13 In rejecting the argument that the
congressional apportionment issues in that case presented political
questions, the Court listed factors that may indicate one exists. 14 Chief
among them are whether there is “a textually demonstrable
constitutional commitment of the issue to a coordinate political
10Id. at 166 (“The conclusion from this reasoning is, that where the
heads of departments are the political or confidential agents of the executive,
merely to execute the will of the President, or rather to act in cases in which
the executive possesses a constitutional or legal discretion, nothing can be
more perfectly clear than that their acts are only politically examinable.”).
11 Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (holding that appellate
court’s prospective injunctive relief against Ohio National Guard “failed to give
appropriate weight to [the] separation of powers” and was nonjusticiable as
framed).
12 Japan Whaling Ass’n, 478 U.S. at 230 (“The political question
doctrine excludes from judicial review those controversies which revolve
around policy choices and value determinations constitutionally committed for
resolution to the halls of Congress or the confines of the Executive Branch.”).
13 369 U.S. 186 (1962).
14 Id. at 217. As we have observed, “[t]he Court did not hold the one-
man-one-vote congressional apportionment issue in Baker v. Carr to be a
political question, and it has refused to hold issues to be political questions in
at least seven other cases.” Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist.,
176 S.W.3d 746, 779 (Tex. 2005) (collecting cases).
7
department” or “a lack of judicially discoverable and manageable
standards for resolving it”:
Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable
and manageable standards for resolving it; or the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion;
or the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already
made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on
one question. 15
While we have never determined whether the Baker factors apply
in Texas courts, the Texas Constitution expressly enshrines the
separation of powers as a fundamental principle of limited
government. 16 Accordingly, under our own Constitution, Texas state
courts decline to exercise jurisdiction over questions committed to the
executive and legislative branches. 17
15 Baker, 369 U.S. at 217.
16 See Tex. Const. art. II, § 1 (“The powers of the Government of the
State of Texas shall be divided into three distinct departments . . . and no
person, or collection of persons . . . shall exercise any power properly attached
to either of the others, except in the instances herein expressly permitted.”);
see also Neeley, 176 S.W.3d at 780 (assuming without deciding that the Baker
factors apply under the Texas Constitution).
17See Neeley, 176 S.W.3d at 778 (concerning authority delegated to the
Texas Legislature); Am. K-9, 556 S.W.3d at 254 (concerning authority
delegated to the federal Executive Branch).
8
In American K-9, we considered the power of the Texas judiciary
to adjudicate cases in which state court claims intersect with federal
legislative and executive power. We applied the Texas Constitution’s
separation of powers principles to determine whether jurisdiction
existed, “guided in our view of the political question doctrine by Marbury
and Baker as well as by other federal-court decisions.” 18 This case
presents a similar state–federal dynamic. The claims presented are ones
over which the federal courts have concurrent jurisdiction, and we apply
American K-9’s analysis, guided by federal precedent, to inform our
decision. 19
B
The political question doctrine is an issue of subject-matter
jurisdiction, and thus a party properly asserts it in Texas state court via
a plea to the jurisdiction. 20 Whether the jurisdictional facts establish
trial-court jurisdiction is a question of law that we review de novo. 21
Though a trial court submits to the factfinder disputed jurisdictional
fact issues intertwined with the merits, a trial court must resolve at the
18 Am. K-9, 556 S.W.3d at 254.
19 See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 232 (1986)
(observing that state and federal courts share concurrent jurisdiction over
Death on the High Seas Act claims); Madruga v. Super. Ct., 346 U.S. 556, 561
(1954) (observing that state and federal courts share concurrent jurisdiction
over maritime-law claims).
Am. K-9, 556 S.W.3d at 259–60; Tex. Dept. of Parks & Wildlife v.
20
Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
21 Am. K-9, 556 S.W.3d at 267.
9
outset jurisdictional fact disputes that arise independently from the
merits of the claim. 22
The petitioners contend that the trial court acted prematurely in
granting M1’s jurisdictional plea because M1 relies on some disputed
facts—namely, whether the Navy bears responsibility for the accident—
that are intertwined with the merits. M1 responds that the actual
resolution of these disputed facts is immaterial to the jurisdictional
analysis—it is the need to resolve them at all that implicates the
political question doctrine.
We agree with M1. The question is not the degree to which a jury
could find the Navy culpable for the crash. The question instead is the
degree to which adjudication of the claims against M1 requires an
examination of military decisions that are constitutionally insulated
from judicial review. To discern whether a nonjusticiable political
question exists, we consider the case “as it would be tried,” 23 including
all the claims and defenses supported by jurisdictional facts. 24
That a political question exists may appear on the face of the
pleadings. In such a case, the proponent of the doctrine need not adduce
evidence to support a jurisdictional plea. In other circumstances,
however, the pleadings alone will not establish the merit of such a plea.
22Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015);
Miranda, 133 S.W.3d at 226; see also Alamo Heights Indep. Sch. Dist. v. Clark,
544 S.W.3d 755, 770–71 (Tex. 2018).
23Am. K-9, 556 S.W.3d at 255 (quoting Occidental of Umm al Qaywayn,
Inc. v. A Certain Cargo of Petroleum Laden Aboard Tanker Dauntless
Colocotronis, 577 F.2d 1196, 1202 (5th Cir. 1978)).
24 Id. at 256.
10
If the issue is whether the military exercised plenary control over a
private contractor, for instance, or whether a contractor is entitled to a
defense that implicates a political question, then the pleadings may not
establish on their face that the case is nonjusticiable. When that is so,
private contractors cannot rely on bare allegations to avoid suit. Rather,
they must adduce evidence to support their contention that their
defenses necessarily implicate nonjusticiable political questions. 25
Determination of the existence of a political question requires a
“discriminating inquiry into the precise facts and posture” of the case. 26
As we said in American K-9, “[t]he inextricable involvement of
military decisions in this case is not a matter of fact but a matter of
law.” 27 Whether a trial court must abstain in accord with the political
question doctrine does not depend on the outcome of the case—it instead
depends on the degree of intrusion into military decision-making the
jurisdictional facts present, regardless of that outcome.
III
To examine whether judicial intrusion rises to a level of
constitutional concern, we ask first, the degree to which the case
requires a review of military decisions, and second, whether such a
25 See Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 477
(3d Cir. 2013) (holding that military-contractor defendant must show evidence
of servicemember’s negligence to support that its negligence defense implicates
political question).
26 Baker, 369 U.S. at 217.
27 556 S.W.3d at 259 (emphasis added).
11
review interferes with constitutionally protected questions of military
strategy and judgment. 28
A
Private military contractors are not political branches. 29 Control
of the armed forces who hire them, however, is committed to the
President of the United States, the head of the Executive Branch. 30
Given this relationship, the first consideration in a case against a
private contractor is the degree to which adjudicating claims against it
requires examination of military decision-making at all. 31 When the
military controls the contractor’s decisions, they may become “de facto
military decisions,” 32 such that any evaluation of the contractor’s
activity necessarily involves review of the military’s orders directing
that activity. 33
Thus, in American K-9, we concluded that the military exercised
control over a private contractor responsible for securing its specially
trained dogs deployed in a war zone. 34 When one of the contractor’s dogs
28 See generally id. at 255–57.
29Harris, 724 F.3d at 465 (“Defense contractors do not have
independent constitutional authority and are not coordinate branches of
government to which we owe deference.”).
30 U.S. Const. art. II, § 2.
31 Am. K-9, 556 S.W.3d at 255.
32Id.; Harris, 724 F.3d at 466 (“Military control requires evaluation of
military decisions because if the contractor is simply doing what the military
ordered it to do, then review of the contractor’s actions necessarily includes
review of the military order directing the action.”).
33 Harris, 724 F.3d at 466.
34 556 S.W.3d at 250–51.
12
escaped its kennel and “jumped up against” a civilian, she sued. 35 In
concluding that the case presented a political question, we held that
“[t]he military had plenary control over at least some of the decisions
implicated by [the civilian’s] claim.” 36 The Army had designed the
kennels and constructed internal partitions at a height that allowed the
dog to vault them. The contractor adduced evidence that the Army
required the contractor to house its dogs in these kennels. 37
Federal courts similarly have held that military control over the
details of the contractor’s work may implicate military decisions. In
Carmichael v. Kellogg, Brown & Root Services, the Eleventh Circuit
concluded that the military exercised plenary control over private-
contractor drivers who were part of a “heavily militarized” Army convoy
through a war zone in Iraq. 38 In that case, the contractor adduced
evidence that the Army controlled the convoy’s date and time of
departure, number of vehicles, route, speed, supplies, and attendant
security measures. 39
The Third Circuit in Harris v. Kellogg Brown & Root Services, in
contrast, held that a wrongful death suit brought by a servicemember’s
parents against an electrical contractor was justiciable. 40 The contractor
allegedly failed to properly ground a water pump at military housing in
35 Id. at 251.
36 Id. at 258.
37 Id.
38 572 F.3d 1271, 1276 (11th Cir. 2009).
39 Id. at 1276–77.
40 Harris, 724 F.3d at 467.
13
Iraq, and the servicemember died while taking a shower. 41 The court
cited the contract’s delegation of “significant discretion” to the
contractor and the “lack of military involvement in completing
authorized work orders.” 42
In this case, the petitioners allege that M1’s maintenance
deviated from the Navy’s direction: “At all relevant times, M1 had a duty
to inspect and remediate the damaged wire bundle and fuel transfer
tube.” In particular, master phase card M-12 required M1 to inspect
“[f]uel and vent lines in [the] cabin for leakage, chafing, obvious damage,
and security.” The petitioners do not allege that the Navy’s instructions
were deficient. The petitioners’ allegations do not implicate military
strategy or judgment on their face.
M1 responds, first, that the Navy exercised control over its
operations. Second, it argues that the Navy is independently responsible
for the crash. The trial court agreed, finding that the “Navy had a
substantial role in M1’s phase maintenance” on the helicopter, including
issuing the performance work statement, which contained the
phase/maintenance cards. It also found that “the Navy performed some
quality control functions” by “reviewing M1’s maintenance paperwork,
performing spot-checks, and/or performing foreign object damage
inspections (including Kapton wiring discrepancies).”
The jurisdictional evidence does not support the conclusion that
the Navy denied M1 discretion in performing maintenance on the
41 Id. at 463.
42 Id. at 467.
14
helicopter. The Navy instructed M1 to inspect “[f]uel and vent lines in
[the helicopter’s] cabin for leakage, chafing, obvious damage, and
security,” but left M1 discretion in carrying out the inspection. The
petitioners allege that M1 performed the inspection negligently,
pointing out that one of M1’s maintenance workers noticed the zip-tied
bundle of wires and failed to remove it because he did not think that
plastic zip-ties could cause chafing damage to a fuel tube. The
maintenance work was left to M1, and the allegation is that M1 did not
properly perform it.
The Navy’s investigators attributed the helicopter crash to
defects in the aircraft’s wiring and fuel tube, and M1 has offered no
alternative cause at this stage. M1 and the trial court identified “staffing
requirements,” the Navy’s “detailed instructions for each maintenance
activity,” the Navy’s control over the maintenance schedule, and the
Navy’s acceptance of the aircraft as issues involving military control.
But M1 does not connect the Navy’s inspection, staffing, or scheduling
requirements to M1’s alleged failure to perform its tasks or to removal
of its own discretion in performing them. The Navy’s inspection and
acceptance of M1’s work does not transmute M1’s maintenance actions
into the Navy’s actions. The jurisdictional plea alleges, but does not
support with evidence, a connection between naval control over M1 and
the crash.
In American K-9, in contrast, the evidence showed that the Army
designed and constructed the kennel that permitted the dog to escape in
a war zone, and questions of its construction implicated strategic
15
military planning. 43 As a result, we held, “a court should not insert itself
into determining whether the Army should or should not have followed
its guidelines.” 44 In contrast, the Navy’s control over M1’s operations left
discretion to M1 in performing the required maintenance on the aircraft
pursuant to the Navy’s directives, and in determining that the aircraft
was safe for flight. 45
B
Even if the Navy did not control M1’s maintenance operations,
M1 argues, the Navy was partially or wholly responsible for the
accident, calling the Navy’s judgment into question. The second aspect
of our American K-9 analysis examines whether the military decisions
under scrutiny are of the type that are “insulated from judicial review.” 46
As we observed in American K-9, a contractor’s causation defense may
raise political questions that render a suit against it nonjusticiable. 47
In its pleadings, M1 offers the Navy’s negligence as a cause of the
crash. It observes that “the Navy performed its own maintenance on the
43 556 S.W.3d at 258–59.
44 Id. at 258.
45 See Harris, 724 F.3d at 467 (“[W]here the military does not exercise
control but merely provides the contractor with general guidelines that can be
satisfied at the contractor’s discretion, contractor actions taken within that
discretion do not necessarily implicate unreviewable military decisions.”).
46 556 S.W.3d at 257 (quoting McMahon v. Presidential Airways, Inc.,
502 F.3d 1331, 1360 (11th Cir. 2007)). The federal courts look to the factors
listed in Baker v. Carr, 369 U.S. 186 (1962), to determine whether a military
decision is insulated from review. E.g., Harris, 724 F.3d 458 (applying the
Baker factors to determine whether the case is justiciable); Carmichael, 572
F.3d 1271 (same).
47 556 S.W.3d at 256.
16
helicopter both before and after M1’s maintenance,” and it attached the
petitioners’ general criticisms of the Navy’s maintenance practices. To
demonstrate a political question, however, it is not enough that M1
alleges these defenses; it must provide evidence of a connection between
these military actions and the crash as part of its plea to the jurisdiction.
M1 does not suggest, for example, that the Navy provided M1 with a
defective spare part. M1 and the record it produced do not connect
general criticisms regarding cannibalized parts or the lack of an
appropriate technical manual to a failure to detect the fuel-tube damage
or to the crash of this aircraft.
The central issue in this case is the maintenance of a particular
aircraft and whether deficiencies in its maintenance contributed to a
crash. To the extent that the Navy’s inspections are implicated, we are
not convinced that its maintenance work on this particular helicopter is
insulated from judicial review. The federal government-contractor
defense the Supreme Court recognized in Boyle v. United Technologies
Corp. indicates it is not. 48
Like this case, Boyle concerned a helicopter crash during a
military training exercise. The Boyle plaintiff sued the helicopter’s
manufacturer under state tort law, alleging the manufacturer
defectively designed the helicopter’s emergency escape system. The
Supreme Court held that the Federal Tort Claims Act’s exception for
liability for the discretionary acts of government officials displaced state
tort law, but only in circumstances in which the contractor could not
48 See 487 U.S. at 511–12.
17
comply with both its contractual obligations to the federal government
and with relevant state tort law. 49 The Court left intact state-prescribed
duties of care that presented no conflict:
If, for example, the United States contracts for the
purchase and installation of an air conditioning-unit,
specifying the cooling capacity but not the precise manner
of construction, a state law imposing upon the
manufacturer of such units a duty of care to include a
certain safety feature would not be a duty identical to
anything promised the Government, but neither would it
be contrary. The contractor could comply with both its
contractual obligations and the state-prescribed duty of
care. No one suggests that state law would generally be
pre-empted in this context. 50
Under Boyle, a government contractor can avoid tort liability
when “(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.” 51 Boyle
does not foreclose liability when the contractor acts outside the
specifications approved by the government or fails to conform to those
specifications. 52 Rather, in limiting liability but not justiciability, the
49 Id. at 509.
50 Id.
51 Id. at 512.
52 E.g., McGonigal v. Gearhart Indus., 851 F.2d 774, 777 (5th Cir. 1988)
(declining to extend Boyle to manufacturing defect claims); Trevino v. Gen.
Dynamics Corp., 865 F.2d 1474, 1480 (5th Cir. 1989) (holding that
government’s “rubber stamp” of design plans did not constitute approval of
specifications; thus concluding Boyle defense did not apply).
18
Court assumed that some cases that implicate military actions do not
present political questions. 53
M1 responds that, like American K-9, this case involves the
equipping of the military, which is “constitutionally committed to the
federal political branches.” 54 It was the Navy’s decision to use an older
helicopter with poorly insulated wiring as part of its training fleet that
caused the crash, M1 says, and this decision implicates the Navy’s
strategic judgment. It likens these actions to the Army’s actions in
housing canine troops in a war zone, which, we noted, require the
“specific exercise of military expertise and judgment.” 55
The central question in this case, however, is not about
equipping—whether the Navy deployed the right helicopter. The
question instead is whether M1 or the Navy failed to detect and repair
this helicopter in compliance with Navy maintenance guidelines,
causing it to be unsafe for flight. Both Texas and federal courts have
successfully adjudicated product liability and negligence cases against
private-contractor defendants who have provided goods or services to
the military. 56
53 We express no opinion on whether Boyle applies to this case.
54 See 556 S.W.3d at 258.
55 Carmichael, 572 F.3d at 1282.
56See, e.g., Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000);
Augustine v. Bell Helicopter Textron, 922 S.W.2d 287 (Tex. App.—Fort Worth
1996, writ denied); Bailey v. McDonnell Douglas Corp., 989 F.2d 794 (5th Cir.
1993); Skyline Air Serv. v. G.L. Capps Co., 916 F.2d 977 (5th Cir. 1990).
19
These questions require mechanical, not military, expertise—of
the kind our Court addressed in Torrington Co. v. Stutzman. 57 In
Torrington, the survivors of two servicemembers who died in a Navy
helicopter crash sued the helicopter’s bearings manufacturer for
negligence and product liability, alleging that defective bearings caused
the crash. 58 The Navy inspected the helicopter four months before the
crash and noted the presence of the bearings, but it did not replace them.
In rejecting the contractor’s defense based on the Navy’s involvement,
we never alluded to a jurisdictional infirmity. 59
An inquiry into a contractor’s compliance with military
instructions does not force the judiciary to decide whether the military’s
allocation of resources was reasonable. Texas has no established
standards for resolving disputes over battlefield military housing
decisions, or over the reasonableness of military aircraft maintenance
schedules, but we possess manageable standards for deciding whether a
private contractor complied with an individual helicopter’s maintenance
plan—even if the Navy created that maintenance plan. As the Eleventh
Circuit noted in rejecting the doctrine’s applicability in another plane-
crash case, “[i]t is well within the competence of a federal court to apply
negligence standards to a plane crash.” 60 It is within the competence of
state courts to do the same.
57 46 S.W.3d at 833–35.
58 Id.
59 Id.
60 McMahon, 502 F.3d at 1364.
20
We agree that issues that implicate sensitive military decision-
making are nonjusticiable. M1 has adduced no jurisdictional facts,
however, demonstrating that the crew was negligent in piloting the
aircraft or was responding to a military exigency, or that the conduct of
the training exercise played a role in causing the crash. 61 In its plea to
the jurisdiction, M1 points to evidence that the Navy strategically
cannibalized parts from inoperable aircraft to save money, and that the
Navy on at least one occasion told a maintenance officer to service an
aircraft without the appropriate technical manuals. However, M1 does
not connect these actions to this crash, which investigators concluded
resulted from chafing damage to wiring and a fuel tube. The Navy action
identified in the plea to the jurisdiction and supported by some evidence
is the Navy’s inspection and maintenance of this helicopter. To the
extent that this case implicates the Navy’s potentially faulty inspection
and maintenance of this particular aircraft—as opposed to its decisions
about aircraft maintenance generally—judicial examination of those
actions does not intrude into a military prerogative committed to the
Executive Branch.
61 M1 has asserted that the crew members were responsible for the
accident but did not adduce facts to support its assertion. In American K-9, in
contrast, we noted the evidence the contractor adduced from its project
manager that the Army’s strategic battlefield decisions played a role in causing
the plaintiff’s injury to support its jurisdictional plea. 556 S.W.3d at 251, 258.
Similarly, M1 adduced no facts demonstrating that assessment of the settling
parties’ actions implicates strategic military considerations. The federal court
suit against these settling defendants belies the contention that evaluation of
these claims renders this case nonjusticiable.
21
The Navy is immune from suit in this case and cannot be held
liable. 62 M1 contends, however, that the Navy is proportionately
responsible for the petitioners’ claims against it, and it further contends
that a jury must determine the extent of the Navy’s responsibility,
essentially putting the Navy on trial. 63 We agree that the claims in this
case implicate the Navy’s actions in maintaining the downed helicopter,
regardless of whether the trial court submits it as a responsible party.
But the Navy actions M1 identified in its plea to the jurisdiction and
supported with evidence are ones capable of review under ordinary
judicial standards. Nothing about the Navy’s actions in this case
necessitates an examination of specific “military expertise and
62 Unlike cases in which the plaintiffs seek to hold the military directly
liable, raising the prospect of direct interference with military management,
the parties agree that the Navy cannot be held liable in this case. See, e.g.,
Gilligan, 413 U.S. at 10; Aktepe v. United States, 105 F.3d 1400 (11th Cir.
1997); Tiffany v. United States, 931 F.2d 271 (4th Cir. 1991). The Feres doctrine
bars any suit against the Navy in these circumstances. Feres v. United States,
340 U.S. 135, 146 (1950) (“We conclude that the Government is not liable under
the Federal Tort Claims Act for injuries to servicemen where the injuries arise
out of or are in the course of activity incident to service.”).
63 The petitioners respond that the law does not permit the trial court
to submit the Navy’s responsibility to the jury. The Supreme Court, however,
has recognized that a trier of fact may determine the liability of settling parties
to allow for proportionate responsibility in maritime cases. See McDermott v.
AmClyde, 511 U.S. 202, 204 (1994). The petitioners distinguish McDermott,
arguing that maritime law does not permit a factfinder to assess responsibility
against a non-settling but immune third party—such as the Navy—and thus
the Navy’s responsibility cannot appear on a jury verdict form. See Hausman
v. Holland Am. Line-USA, No. 13-cv-00937, 2015 WL 11234150, at *3–*4 (W.D.
Wash. June 3, 2015). M1 responds that a party’s immunity constitutes “pre-
settlement” of liability and thus a court may submit its responsibility to the
trier of fact under McDermott. We express no opinion on the merit of these
arguments.
22
judgment.” 64 For these reasons, we conclude that the claims about the
maintenance of this aircraft—by M1 and the Navy—are justiciable.
The Navy produced its investigation materials, and it has
cooperated with discovery. The Navy presented its Quality Assurance
Representative for a deposition. The Navy thus has provided the
relevant witnesses and discovery that, if unavailable, might deprive a
private contractor of a fair trial. A private contractor must be able to
properly defend itself at trial when it adduces facts demonstrating that
the military’s conduct caused the claimed injury. Such a consideration
should weigh heavily in a justiciability analysis. 65 Here, however, there
is no showing that the contractor is hampered in presenting its case.
We excluded cases like this one from the political question
doctrine in American K-9. “Ordinary tort suits,” we said, are not
unquestionably committed to the political branches—even when
“touching on military matters.” 66 When the military’s actions do not
involve military expertise or judgment, and judicial history
demonstrates the existence of “judicially discoverable and manageable
standards,” a state court should not abstain from exercising its
constitutional jurisdiction to resolve the dispute. 67
* * *
64 Carmichael, 572 F.3d at 1282.
65 The federal courts recognize a rarely invoked doctrine called the
state-secrets privilege, for example. See United States v. Reynolds, 345 U.S. 1
(1953).
66 Am. K-9, 556 S.W.3d at 254.
67Baker, 369 U.S. at 217. None of the remaining Baker factors are
present here.
23
We hold that the political question doctrine does not deprive the
state courts of jurisdiction over this case. Accordingly, we reverse the
judgment of the court of appeals and remand the case to the trial court
for further proceedings.
Jane N. Bland
Justice
OPINION DELIVERED: January 21, 2022
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