Taylor v. Kellogg Brown & Root Services, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETER TAYLOR, 

Plaintiff-Appellant,

v.

 No. 10-1543

KELLOGG BROWN & ROOT SERVICES,

INCORPORATED,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Robert G. Doumar, Senior District Judge.

(2:09-cv-00341-RGD-TEM)

Argued: October 26, 2010

Decided: September 21, 2011

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed in part and vacated in part by published opinion.

Judge King wrote the opinion, in which Judge Niemeyer

joined. Judge Niemeyer wrote a concurring opinion. Judge

Shedd wrote an opinion concurring in the judgment, in which

Judge Niemeyer joined.

2 TAYLOR v. KELLOGG BROWN & ROOT SERVICES

COUNSEL

ARGUED: William Shaw Stickman, DEL SOLE CAVA-

NAUGH STROYD LLC, Pittsburgh, Pennsylvania, for

Appellant. Lawrence S. Ebner, MCKENNA LONG &

ALDRIDGE LLP, Washington, D.C., for Appellee. ON

BRIEF: Raymond B. Biagini, Lisa M. Norrett, Daniel L. Rus-

sell, Jr., MCKENNA LONG & ALDRIDGE LLP, Washing-

ton, D.C., for Appellee.

OPINION

KING, Circuit Judge:

Peter Taylor appeals from the district court’s dismissal of

his negligence action against Kellogg Brown & Root Ser-

vices, Incorporated ("KBR"). On July 27, 2007, Taylor, an

enlisted United States Marine, was electrocuted and severely

injured while serving on an American military base in Iraq.

Taylor filed suit in the Eastern District of Virginia, alleging

that his injuries were proximately caused by the negligence of

KBR, a private contractor of the Army. KBR sought dismissal

of Taylor’s action for lack of subject matter jurisdiction, pur-

suant to Federal Rule of Civil Procedure 12(b)(1), contending

that his negligence claim is barred by the political question

doctrine, or, in the alternative, preempted by the "combat

activities" exception to the Federal Tort Claims Act (the

"FTCA"). By its decision of April 16, 2010, the district court

accepted both of KBR’s contentions and dismissed Taylor’s

negligence claim. See Taylor v. Kellogg Brown & Root Servs.,

Inc., No. 2:09-cv-00341 (E.D. Va. Apr. 16, 2010) (the "Opin-

ion").1 As explained below, we affirm the judgment on the

basis that an adjudication of Taylor’s claim against KBR

would necessarily implicate a political question, which the

1

The Opinion is found at J.A. 3-24. (Citations herein to "J.A. ___" refer

to the contents of the Joint Appendix filed by the parties in this appeal.)

TAYLOR v. KELLOGG BROWN & ROOT SERVICES 3

federal courts lack jurisdiction to decide. Accordingly, we

need not reach the FTCA preemption issue and we vacate that

aspect of the district court’s Opinion.

I.

A.

On July 24, 2009, Taylor initiated this civil action, alleging

a single common law negligence claim against KBR.2 When

the underlying events occurred in July 2007, Taylor was sta-

tioned at Marine Camp Fallujah near the city of Fallujah, Iraq

(the "Camp"), where he served as a Hospital Corpsman.

Inside the Camp were a tank ramp and a related assault vehi-

cle ramp (collectively, the "Tank Ramp"). The Tank Ramp

was used for the general maintenance of Marine tanks,

amphibious assault vehicles, and humvees, and was the only

Camp facility where tank maintenance occurred.

On July 27, 2007, the Tank Ramp’s main generator mal-

functioned. Because there had been several such power out-

ages, a group of Marines, including Taylor, decided to install

a wiring box at the Tank Ramp and hook up their own genera-

tor. When the Marines began installing the wiring box, the

Tank Ramp’s main generator had been turned off. While the

Marines were working, however, several KBR technicians

arrived at the Tank Ramp to perform repairs. They were

promptly advised by the Marines that work was being accom-

plished on the Tank Ramp’s main generator, which was not

to be turned on until the Marines confirmed that it was safe

2

Our factual recitation is drawn primarily from the Opinion, the Com-

plaint, and deposition testimony. The facts relevant to our disposition of

this appeal are not disputed — save for one that was resolved by the dis-

trict court after limited jurisdictional discovery, discussed infra. See Kerns

v. United States, 585 F.3d 187, 193 (4th Cir. 2009) (recognizing that dis-

trict court should conduct limited jurisdictional discovery to resolve fac-

tual disputes). That particular factual dispute has no bearing on our

disposition.

4 TAYLOR v. KELLOGG BROWN & ROOT SERVICES

to do so. Although the technicians agreed to the Marines’

request, one of them nevertheless turned on the main genera-

tor while the Marines were working on the wiring box.3 As a

result, a powerful electrical current surged through the wiring

box where Taylor was working, causing him to be badly elec-

trocuted and suffer severe injuries.

B.

On November 23, 2009, KBR filed its Rule 12(b)(1)

motion to dismiss Taylor’s negligence claim for lack of sub-

ject matter jurisdiction.4 KBR’s essential assertions were two-

fold: (1) that adjudication of Taylor’s claim would require a

judicial assessment of military operations and military deci-

sions made in fighting the Iraq War and thus presented a non-

justiciable political question; and (2) that Taylor’s claim is

preempted by the "combat activities" exception to the FTCA,

spelled out in 28 U.S.C. § 2680(j). With the motion’s support-

ing memorandum, KBR filed nine exhibits, including the dec-

larations of the Camp’s "Mayor," Marine Major Omar

Randall, and two enlisted Marines.5

3

In support of Taylor’s negligence claim against KBR, the Complaint

specifically alleges that,

upon being informed of [Taylor’s] work on the wiring box and

agreeing not to turn on the main generator, KBR assumed the

particular duty not to turn on the main generator and had actual

knowledge that turning on the generator would cause serious

injury to [Taylor].

Complaint ¶ 24. (The Complaint is found at J.A. 34-42.)

4

Rule 12(b)(1) specifies that a defense of lack of subject matter jurisdic-

tion may be asserted by motion made before pleading if a responsive

pleading is allowed. Although KBR’s motion to dismiss only asserts that

it was being made pursuant to "Rule 12," the supporting memorandum

clarifies that it was being pursued under Rule 12(b)(1).

5

The other six exhibits filed with KBR’s memorandum were: (1) a

"Task Order" explaining KBR’s responsibilities at the Camp; (2) a copy

of a document termed "Army Facilities Management"; (3) the "Army

TAYLOR v. KELLOGG BROWN & ROOT SERVICES 5

On December 4, 2009, Taylor filed in the district court a

legal memorandum opposing KBR’s Rule 12(b)(1) motion.

Taylor therein contended, inter alia, that the political question

doctrine does not apply because his negligence claim was

lodged against a private corporation and no decisions of the

legislative or executive branches were implicated. More par-

ticularly, Taylor maintained that any military orders should be

taken as "external constraints" within which KBR’s negligent

conduct against Taylor could be independently considered.

On December 10, 2009, KBR responded to Taylor’s opposi-

tion, contending that KBR’s defenses to Taylor’s negligence

claim would require the court to second-guess military poli-

cies, thus implicating decisions of the executive branch.

On February 1, 2010, the district court conducted a nonevi-

dentiary proceeding concerning KBR’s Rule 12(b)(1) motion,

and KBR specifically advised the court that it would be pre-

senting a contributory negligence defense.6 In response, the

court requested additional submissions on two subjects: (1)

the characteristics of the Tank Ramp; and (2) the situation on

the ground in Fallujah, specifically the nature of the military

hostilities, during the relevant time period. The following day,

the court entered a conforming order authorizing the parties

to conduct limited jurisdictional discovery. Then, on February

18, 2010, the court clarified its February 2 order and directed,

inter alia, that the deposition of Major Randall be completed

Safety Program," outlining Army safety regulations; (4) the "Sand Book,"

a manual on construction and base camp development; (5) regulations per-

taining to the "Logistics Civil Augmentation Program," under which the

Army hires private contractors; and (6) "The Safety Corner," a Marine

Corps safety presentation.

6

The parties agree that Virginia law applies to Taylor’s negligence

claim against KBR. In Virginia, contributory negligence is a complete

defense to such a claim, "based on the objective standard of whether a

plaintiff failed to act as a reasonable person would have acted for his own

safety under the circumstances." Ponirakis v. Choi, 546 S.E.2d 707, 710

(Va. 2001); see also Opinion 11 n.4.

6 TAYLOR v. KELLOGG BROWN & ROOT SERVICES

by the end of the month, and that KBR produce, to both Tay-

lor and the court, the relevant contract between KBR and the

Army (the "Contract").

Pursuant to the district court’s discovery orders, the parties

conducted the deposition of Major Randall, and it was filed

in connection with the Rule 12(b)(1) motion. The parties also

filed a map of the Camp, a copy of a Freedom of Information

Act request regarding Taylor’s injuries, and the Contract

itself. KBR then made what it called a "Supplemental Sub-

mission" on the Rule 12(b)(1) motion, describing the hostili-

ties in Fallujah and the Camp’s role therein, and explaining its

contentions concerning the political question doctrine and the

FTCA’s combat activities exception. Taylor made his own

supplemental submission opposing the Rule 12(b)(1) motion,

maintaining that the political question doctrine was not appli-

cable for at least three reasons: (1) Taylor’s injuries had not

occurred during a combat operation; (2) KBR technicians

were not under the plenary control of the military when they

arrived to conduct repairs on the Tank Ramp’s main genera-

tor; and (3) there was a relevant factual dispute concerning

whether the Marines’ actions in installing the wiring box were

authorized.7

C.

1.

By its Opinion of April 16, 2010, the district court granted

KBR’s Rule 12(b)(1) motion to dismiss, ruling in KBR’s

favor on both the political question doctrine and the FTCA’s

combat activities exception. As the Opinion related, the Camp

is located approximately fifteen miles outside Fallujah and

combat activities were ongoing in 2007. The military forces

7

In resolving this factual dispute, see supra note 2, the Opinion con-

cluded that the Marines had not been authorized to work on the Tank

Ramp. See Opinion 13.

TAYLOR v. KELLOGG BROWN & ROOT SERVICES 7

at the Camp included a Marine combat logistics battalion, a

Naval construction regiment, a Marine communications bat-

talion, a Marine transportation company, and Iraqi army units.

Other than the Iraqi army units, the Camp housed approxi-

mately 5000 personnel, with approximately 1200 of them

being members of a Marine Corps regimental combat team.

The military units at the Camp were directly involved in com-

bat operations and came under fire at least once or twice a

month. Among their other duties, the Marines at the Camp

provided support for supply convoys. The day-to-day support

functions of the Camp were overseen by a group of Marine

personnel called the "Mayor’s Cell." During Taylor’s service

at the Camp, Major Randall commanded the Mayor’s Cell.

However, the Camp and its personnel depended on military

contractors to keep things running. KBR was one of the sev-

eral contractors providing support to the military operations at

the Camp.

On December 14, 2001, KBR was awarded the Contract to

provide maintenance and management support at military

bases in Iraq.8 The Contract specified that KBR was to pro-

vide support for the Multi National Force-Iraq, which serves

as "the overall headquarters" of all coalition forces in Iraq.

J.A. 371. As such, although the Contract was made with the

Army, KBR provided support for non-Army personnel as

well. Of relevance here, KBR was obliged to install, inspect,

operate, repair, and maintain the electrical generators at the

Camp. The Contract delineated a "Statement of Work" for

KBR and provided, inter alia, that

[KBR] shall be responsible for safety of employees

and base camp residents during all [KBR] operations

8

The Contract was initially awarded to an entity called "Kellogg Brown

& Root, Incorporated." Pursuant to a novation made on August 1, 2003,

the Contract was transferred to a subsidiary entity that is the defendant

here, "Kellogg Brown & Root Services, Incorporated," which we call

"KBR."

8 TAYLOR v. KELLOGG BROWN & ROOT SERVICES

conducted in accordance with this Statement of

Work and the Army and Occupational Safety and

Health Administration (OSHA) safety regulations

and guidance as it applies to the Iraq Theatre of

Operations.

Id. at 584-85.

The Camp employed two methods for supplying electric

power to its various facilities. The first of those methods,

termed "prime power," utilized a connection to the Camp’s

primary power plant, while the alternative method involved

connecting a particular user to an individual generator. Cer-

tain critical facilities of the Camp were authorized to use

redundant power sources, typically in the form of secondary

and backup generators. The use of such secondary or backup

power, however, had to be authorized by the Mayor’s Cell. A

facility might be denied an authorization of backup power due

to "limited resources" or "priority of resources." J.A. 403-04.

For example, the Camp’s "battle square" was powered by

multiple backup generators, while certain facilities at the

Camp had no backup power at all. The Tank Ramp was

among the latter group; it was powered solely by an individ-

ual generator and had not been authorized by the Mayor’s

Cell for secondary or backup power.

2.

In assessing KBR’s political question contention, the dis-

trict court explained that "the key inquiry is whether a court

will have to consider the wisdom of military operations and

decision-making, or whether it need only consider the private

contractor’s performance." Opinion 9 (internal quotation

marks omitted).9 The court also recognized that, in making its

9

Pursuant to the political question doctrine, the judiciary is deprived of

jurisdiction to assess decisions exclusively committed to a separate branch

of government. For example, most military decisions lie solely within the

purview of the executive branch. See Baker v. Carr, 369 U.S. 186, 217

(1962).

TAYLOR v. KELLOGG BROWN & ROOT SERVICES 9

Rule 12(b)(1) analysis, it was entitled to look beyond the alle-

gations of the Complaint and consider how Taylor’s negli-

gence claim would be litigated.

The Opinion concluded that Taylor’s negligence claim

gave rise to a nonjusticiable political question that the court

was not permitted to assess. Specifically, KBR had placed the

district court on notice that it would raise a contributory negli-

gence defense, requiring a judicial assessment of military

operations and decisions made in the Iraq combat theatre. As

emphasized by the court,

[KBR] has indicated that it will defend this action,

at least in part, by raising a defense of contributory

negligence. This defense will inevitably force the

Court to question the judgment not only of [Taylor]

himself, but also of the United States military.

Id. at 11. As the Opinion explained, a judicial assessment of

the contributory negligence defense would "require the Court

to decide whether ‘the Marines’ made a reasonable decision"

to install a wiring box at the Tank Ramp. Id. at 12. The court

rejected Taylor’s contention that KBR’s actions could be iso-

lated and the military’s orders treated as "external con-

straints," because doing so "would completely eliminate the

political question doctrine in contractor suits." Id. at 12. The

court drew legal support for its conclusion from the Eleventh

Circuit’s recent decision in Carmichael v. Kellogg, Brown, &

Root Services, Inc., 572 F.3d 1271, 1275 (11th Cir. 2009).

There, the court of appeals concluded that determining the

amount of "control" that the military exercised over a contrac-

tor was merely a game of semantics, since KBR (in that case)

"was operating at all times under the orders and determina-

tions made by the military." Carmichael, 572 F.3d at 1284.

In further explaining its political question ruling, the dis-

trict court emphasized that

10 TAYLOR v. KELLOGG BROWN & ROOT SERVICES

the military determined how power should be sup-

plied to the [Tank Ramp]. The military authorized

certain individuals to perform electric maintenance

work, and forbade others from doing so. Members of

the military — acting without proper authorization

— decided to install a backup generator.

Opinion 13. An assessment of the contributory negligence

defense, according to the district court, would therefore "re-

quire an evaluation of several command decisions," such as

"whether back-up power should have been supplied to the

Tank Ramp." Id. at 12. Because it was the military that (1)

decided how to supply electric power to the Tank Ramp, and

(2) authorized who could work on the Camp’s generators, the

Opinion concluded that it was "not possible to view this case

in a vacuum, nor is it possible to resolve this case without

questioning actual sensitive judgments made by the military."

Id. at 13. (internal quotation marks omitted). As a result, the

district court ruled that Taylor’s negligence claim was barred

because it presented a nonjusticiable political question.10 Dis-

missal under Rule 12(b)(1) was thus warranted, and a judg-

10

The district court also analyzed the FTCA’s combat activities excep-

tion and decided that the exception barred Taylor’s negligence claim. See

Opinion 13-20. The FTCA generally authorizes damage claims against the

United States for the tortious actions of its employees, in the same manner

and to the same extent that a private individual would be liable under the

law of the place where the tortious conduct occurred. See 28 U.S.C.

§ 2674. The "combat activities" exception of the FTCA precludes Govern-

ment liability "arising out of the combat activities of the military or naval

forces, or the Coast Guard, during a time of war." Id. § 2680(j). In ruling

on the combat activities exception, the district court adopted the D.C. Cir-

cuit’s reasoning in Saleh v. Titan Corps., which explained that, "[d]uring

wartime, where a private service contractor is integrated into combat

activities over which the military retains command authority, a tort claim

arising out of the contractor’s engagement in such activities shall be pre-

empted." 580 F.3d 1, 9 (D.C. Cir. 2009). The district court concluded that

KBR’s maintenance of the Tank Ramp qualified as combat activity

because, as the court observed, "tanks are not deployed to peddle popsi-

cles." Opinion 19.

TAYLOR v. KELLOGG BROWN & ROOT SERVICES 11

ment to that effect was entered in favor of KBR on April 16,

2010.11

Taylor filed a timely notice of appeal, and we possess juris-

diction pursuant to 28 U.S.C. § 1291.

II.

We review de novo a district court’s dismissal for lack of

subject matter jurisdiction under Federal Rule of Civil Proce-

dure 12(b)(1). See Pitt Cnty. v. Hotels.com, L.P., 553 F.3d

308, 311 (4th Cir. 2009).

III.

A.

In pursuing this appeal, Taylor contends that his negligence

claim is not barred by the political question doctrine — and

that the district court erroneously ruled to the contrary —

because an adjudication of the claim would not require any

assessment of the Army’s retention of KBR or the terms of

the Contract. KBR, in turn, maintains that the court correctly

ruled that Taylor’s negligence claim is barred under the politi-

cal question doctrine because our adjudication of the claim

would require a judicial assessment of military decisions

made in a combat theatre — that is, decisions with respect to

whether backup power was to be supplied to the Tank Ramp

and whether the Marines should have been authorized to

install a backup generator at the Tank Ramp on their own

accord.

11

On April 19, 2010, the district court entered an amended judgment of

dismissal correcting its initial judgment that had inadvertently designated

the Rule 12(b)(1) motion as being "denied."

12 TAYLOR v. KELLOGG BROWN & ROOT SERVICES

1.

The political question doctrine had its genesis in the

Supreme Court’s decision of Marbury v. Madison, where

Chief Justice Marshall explained that "[q]uestions, in their

nature political, of which are, by the constitution and laws,

submitted to the executive, can never be made in this court."

5 U.S. (1 Cranch) 137, 170 (1803). More recently, in Baker

v. Carr, the Court articulated a six-factor test for assessing

whether a particular claim presents a nonjusticiable political

question. See 369 U.S. 186, 217 (1962). Three of those factors

— the first, second, and fourth — are pertinent here:

• First, an assessment of whether there has been "a

textually demonstrable constitutional commit-

ment of the issue to a coordinate political depart-

ment";

• Second, whether there is "a lack of judicially dis-

coverable and manageable standards for resolv-

ing [the question]"; and

• Fourth, whether there is an apparent impossibility

of a court’s independent resolution of the ques-

tion "without expressing lack of the respect due

to coordinate branches of government."

Id.12 KBR contends that an adjudication of Taylor’s negli-

gence claim would implicate a judicial assessment that runs

afoul of these three Baker factors. Specifically, the district

court would be required to assess the military’s decision on

12

The remaining three Baker factors are: Third, whether there is an

apparent "impossibility of deciding [the question] without an initial policy

determination of a kind clearly for nonjudicial discretion"; fifth, whether

there is "an unusual need for unquestioning adherence to a political deci-

sion already made"; and, sixth, whether there is a "potentiality of embar-

rassment from multifarious pronouncements by various departments on

one question." 369 U.S. at 217.

TAYLOR v. KELLOGG BROWN & ROOT SERVICES 13

how to supply power to the Tank Ramp (first factor); there is

no manageable judicial standard for assessing whether the

Marines involved in the underlying incident had been trained

properly (second factor); and, finally, an adjudication of Tay-

lor’s claim would show a lack of respect to the executive

branch (fourth factor).

In evaluating whether Taylor’s negligence claim against

KBR presents a nonjusticiable political question, we must rec-

ognize that KBR is not a part of the military. Nonetheless, we

are obliged to carefully assess the relationship between the

military and KBR, and to "look beyond the complaint, [and]

consider[ ] how [Taylor] might prove [his] claim[ ] and how

KBR would defend." Lane v. Halliburton, 529 F.3d 548, 565

(5th Cir. 2008); see Carmichael v. Kellogg, Brown, & Root

Servs., Inc., 572 F.3d 1271, 1292 (11th Cir. 2009) (deeming

political question doctrine applicable because KBR would

defend on ground that military decisions caused accident).

2.

We begin our inquiry by identifying the applicable legal

principles concerning political questions and military opera-

tions. Our decision in Tiffany v. United States is helpful in this

respect. See 931 F.2d 271 (4th Cir. 1991). There, a private

pilot had utilized an unauthorized flight plan, and, as a result,

several military planes scrambled over North Carolina to

determine whether the private plane was hostile. During their

encounter, one of the military aircraft collided with the private

plane, causing it to crash. Because the Government defended

the estate’s FTCA claim by asserting that the decision to

scramble fighter planes was related to the national defense,

our Court was called on to decide whether the political ques-

tion doctrine applied. We concluded that the FTCA claim

presented a nonjusticiable issue, emphasizing that the plaintiff

could not "reshape the national response to threats of hostile

air attack through the mechanism of tort law." Id. at 278. As

14 TAYLOR v. KELLOGG BROWN & ROOT SERVICES

Judge Wilkinson cogently explained, however, our decision

did not stand for the proposition

that any time a branch of the military asserts a

national defense interest to justify its acts, the court

must avert its eyes. The military does not enjoy a

blanket exemption from the need to proceed in a

non-negligent manner. When conducting training

exercises, for example, or acting in a civilian arena,

national defense interests may be more remote and

the military faces different restrictions.

Id. at 280.

Because the military (and certainly a military contractor) is

not, as a matter of course, insulated from liability when it

asserts a "national defense interest," we must, to resolve this

appeal, gauge the degree to which national defense interests

may be implicated in a judicial assessment of Taylor’s negli-

gence claim. Insofar as Tiffany did not address the justicia-

bility of a negligence claim initiated by a serviceman against

a private contractor concerning events that occurred in a com-

bat theatre, we look to our sister circuits for some guidance.

3.

In assessing the applicability of the political question doc-

trine, the district court identified and relied on the 2009 Elev-

enth Circuit decision in Carmichael. There, a negligence

claim initiated by Carmichael’s wife against KBR for injuries

that her husband, an Army Sergeant, had suffered in Iraq was

held barred by the political question doctrine. See 572 F.3d at

1275. Carmichael had been injured when a truck driven by a

KBR employee wrecked while moving in a military convoy,

and it was alleged that KBR had negligently failed to safely

navigate a dangerous curve. The convoy had been travelling

through notoriously hostile territory and was heavily milita-

rized. Furthermore, the KBR truck driver was under the "ple-

TAYLOR v. KELLOGG BROWN & ROOT SERVICES 15

nary control" of the military, which had decided when the

convoy would take place, where it would travel, and how fast

it would move. Id. at 1276. The court concluded that the polit-

ical question doctrine therefore barred Carmichael’s claim.

Pursuant to Carmichael, if a military contractor operates

under the plenary control of the military, the contractor’s

decisions may be considered as de facto military decisions.

Taylor contends that we should evaluate the reasonableness

of KBR’s acts within the parameters of the military’s orders

— that is, deeming such orders to be "external constraints"

within which KBR’s allegedly negligent acts should be

assessed. By way of analogy, Carmichael’s wife alleged that

KBR employees — rather than the military — controlled the

truck in which Carmichael had been injured and, notwith-

standing military regulations, the KBR driver could have

avoided the accident by slowing down or coming to a stop as

he approached the curve where the accident occurred. Car-

michael, 572 F.3d at 1284. The Eleventh Circuit rejected her

contention, however, concluding that the political question

doctrine barred her negligence claim against KBR because its

driver was under military orders and the defense would inevi-

tably rely on such orders. Id. at 1284-85.

More specifically, the court of appeals concluded that Mrs.

Carmichael’s claim ran afoul of the first and second Baker

factors. On the first factor, the court recognized that an adju-

dication of her negligence claim would involve assessing

issues constitutionally committed to the executive branch,

"[b]ecause the circumstances under which the accident took

place were so thoroughly pervaded by military judgment and

decisions." Carmichael, 572 F.3d at 1282-83. Assessing the

second Baker factor, the court observed that there were no

judicially discoverable and manageable standards for resolv-

ing the dispute — that is, because the claim was for KBR’s

negligence, the court had no way of assessing reasonableness

in the context of military orders and regulations. Id.

16 TAYLOR v. KELLOGG BROWN & ROOT SERVICES

A similar tack to the application of the political question

doctrine was taken in the Fifth Circuit’s decision in Lane v.

Halliburton, 529 F.3d 548, 554 (5th Cir. 2008). There, the

plaintiffs were all non-military personnel. Specifically, civil-

ian truck drivers, as well as their spouses and dependents,

were pursuing claims against KBR for injuries sustained

while working for KBR in Iraq. Their complaints alleged,

inter alia, fraud and misrepresentation, and the litigation cen-

tered on KBR’s promise of a safe work environment. The dis-

trict court had dismissed the consolidated cases because they

raised nonjusticiable political questions, in that KBR was

operating under orders of the military. On appeal, the Fifth

Circuit reversed and remanded. In so ruling, the court of

appeals concluded that, although the military was involved in

KBR’s operations in Iraq, "the Plaintiffs have presented a

plausible set of facts as to the fraud and misrepresentation

claims that might allow causation to be proven under one tort

doctrine without questioning the Army’s role." Lane, 529

F.3d at 561-62. As such, at least on the fraud and misrepre-

sentation claims, jurisdiction was not necessarily barred by

the political question doctrine and additional discovery was

warranted.

In this case, the district court did not directly rely on the

Baker factors, but deemed the Carmichael decision to be per-

suasive and ruled that Taylor’s negligence claim was barred

by the political question doctrine, explaining that "both Plain-

tiff and Defendant were operating at all times under orders

and determinations made by the military." Opinion 13 (inter-

nal quotation marks omitted). The court reasoned that "[i]t is

simply not possible to view this case in a vacuum," emphasiz-

ing that KBR was under orders of the military on how electric

power would be supplied to the Tank Ramp and concerning

who could work on the generators. Id.

Although the district court may have correctly recognized

that Taylor’s negligence claim could not be viewed in isola-

tion; nonetheless, that KBR was acting under orders of the

TAYLOR v. KELLOGG BROWN & ROOT SERVICES 17

military does not, in and of itself, insulate the claim from judi-

cial review. In disposing of this appeal, we must also assess,

first, the extent to which KBR was under the military’s con-

trol, and, second, whether national defense interests were

closely intertwined with the military’s decisions governing

KBR’s conduct.

4.

Unlike the situation in Carmichael, where the KBR truck

driver was under the military’s plenary control, the Contract

specifies that "[t]he contractor shall be responsible for the

safety of employees and base camp residents during all con-

tractor operations." J.A. 584. Moreover, the Contract provides

that "the contractor shall have exclusive supervisory authority

and responsibility over employees." Id. at 592. In other words,

unlike in Carmichael — where the military had plenary con-

trol over both the convoy and KBR — in this case the military

was not exercising direct control.

Because of the manner that responsibility was delegated to

KBR, the district court may have been incorrect in concluding

that "treat[ing] the military’s decisions as external constraints

. . . would completely eliminate the political question doctrine

from contractor suits." Opinion 12. Indeed, with respect to

generator maintenance at the Camp, KBR was nearly insu-

lated from direct military control and was itself solely respon-

sible for the safety of all "camp residents during all contractor

operations." J.A. 584.

Nonetheless, the district court correctly concluded that a

decision on the merits of Taylor’s negligence claim would

require the judiciary to question "actual, sensitive judgments

made by the military." Opinion 11 (internal quotation marks

omitted). More specifically, an analysis of KBR’s contribu-

tory negligence defense would "invariably require the Court

to decide whether . . . the Marines made a reasonable deci-

sion" in seeking to install the wiring box to add another elec-

18 TAYLOR v. KELLOGG BROWN & ROOT SERVICES

tric generator at the Tank Ramp. Id. (internal quotation marks

omitted). In assessing the contributory negligence defense and

the reasonableness of Taylor’s conduct, the court would be

obliged to evaluate military decisions made by the Mayor’s

Cell, including "whether back-up power should have been

supplied to the Tank Ramp area." Id. As the application of our

Tiffany decision makes clear, such an assessment, especially

the issue of whether to provide a backup generator for the

Tank Ramp, is beyond the scope of judicial review.13 In these

circumstances, therefore, the political question doctrine

deprived the district court of jurisdiction to adjudicate the

merits of Taylor’s negligence claim.

B.

Finally, because we agree with the district court that the

political question doctrine applies here, the second appellate

issue — whether Taylor’s negligence claim is preempted by

the FTCA’s combat activities exception — is rendered moot.

And, as we recently explained, our "customary practice when

a case is rendered moot on appeal is to vacate the moot

aspects of the lower court’s judgment." Norfolk S. Ry. Co. v.

City of Alexandria, 608 F.3d 150, 161 (4th Cir. 2010) (citing

Alvarez v. Smith, 130 S. Ct. 576, 581 (2009)). Typically, how-

ever, such a vacatur is only warranted where — as here —

"mootness has occurred through happenstance, rather than

13

More specifically, as Tiffany explained, such an assessment would run

afoul of the second and fourth Baker factors. In Tiffany itself, these factors

were implicated because (1) "[j]udges have no discoverable and manage-

able standards for resolving whether necessities of national defense out-

weigh risks to civilian aircraft," and (2) "[n]or [could] we even undertake

independent resolution without expressing lack of the respect due coordi-

nate branches of government." Tiffany, 931 F.2d at 279 (internal quotation

marks and alteration omitted). Here, we have no discoverable and manage-

able standards for evaluating how electric power is supplied to a military

base in a combat theatre or who should be authorized to work on the gen-

erators supplying that power. Furthermore, any such judicial assessment

thereof would show a lack of respect for the executive branch.

TAYLOR v. KELLOGG BROWN & ROOT SERVICES 19

through the voluntary action of the losing party." Id. at 162

(internal quotation marks omitted). Otherwise, a party seeking

appellate review of an adverse ruling, but which is frustrated

in that regard by "the vagaries of circumstance, ought not in

fairness be forced to acquiesce in the judgment." Id. (internal

quotation marks omitted).

Because the political question doctrine deprives the federal

courts of jurisdiction to resolve Taylor’s negligence claim, a

ruling on the FTCA issue would be little more than an advi-

sory opinion on a constitutional question — something the

Ashwander doctrine obliges us to avoid. See Ashwander v.

Tenn. Valley Auth., 297 U.S. 288, 341-47 (1936) (Brandeis,

J., concurring) (explaining that courts should not "decide

questions of a constitutional nature unless absolutely neces-

sary"). More specifically, our potential resolution of the

FTCA issue implicates the Supremacy Clause of the Constitu-

tion. See U.S. Const. art VI, cl. 2 ("This Constitution, and the

Laws of the United States . . . shall be the supreme Law of

the Land . . ."); Koohi v. United States, 976 F.2d 1328, 1333

(9th Cir. 1992) (recognizing that FTCA combat activities

exception preempts state law tort claim). In such circum-

stances, we are obliged to vacate the FTCA ruling, which con-

stitutes the moot aspect of the district court’s judgment.

IV.

Pursuant to the foregoing, we affirm in part and vacate in

part.

AFFIRMED IN PART

AND VACATED IN PART

NIEMEYER, Circuit Judge, concurring:

For the reasons stated both in Judge King’s opinion and in

my opinion in Al Shimari v. CACI International, Inc., ___

F.3d ___, No. 09-1335 (4th Cir. Sept. 21, 2011), I believe the

20 TAYLOR v. KELLOGG BROWN & ROOT SERVICES

political question doctrine requires dismissal of this case. I

also believe that federal preemption, as articulated by Judge

Shedd’s opinion and by our decision in Al Shimari, supports

dismissal of this case. As a result, I concur in both Judge

King’s opinion and Judge Shedd’s opinion with respect to

federal preemption, thus providing alternative grounds for the

judgment.

SHEDD, Circuit Judge, concurring in the judgment:

Because, at this early stage, I do not believe deciding Peter

Taylor’s case will cause the Court to "inevitably be drawn

into a reconsideration of military decisions," Lane v. Halli-

burton Corp., 529 F.3d 548, 563 (5th Cir. 2008), I am not

convinced that the political question doctrine applies in this

case. See also McMahon v. Presidential Airways, Inc., 502

F.3d 1331, 1365 (11th Cir. 2007) (same). I concur in the judg-

ment, however, because I agree that the district court correctly

dismissed Taylor’s negligence claim.

For the reasons stated in Saleh v. Titan Corp., 580 F.3d 1

(D.C. Cir. 2009), and in Al Shimari v. CACI International,

No. 09-1335 (4th Cir. 2011) and Al-Quraishi v. L-3 Services,

Inc., No. 10-1891 (4th Cir. 2011) — and also as found by the

district court — I believe that Taylor’s claim is displaced by

the uniquely federal interests in this case represented by the

Federal Tort Claims Act’s combatant activities exception, 28

U.S.C. § 2680(j). Under this approach, "where a civilian con-

tractor is integrated into wartime combatant activities over

which the military broadly retains command authority, tort

claims arising out of the contractors’ engagement in such

activities are preempted." Al Shimari, slip op. at 11-12. "Com-

batant activities" include "activities both necessary to and in

direct connection with actual hostilities," Johnson v. United

States, 170 F.2d 767, 770 (9th Cir. 1948), a standard satisfied

here.