Lane v. Halliburton

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 28, 2008

No. 06-20874 Charles R. Fulbruge III

Clerk

REGINALD CECIL LANE, an individual, by and through Linda Marlene

Lane, as the duly appointed Conservator/Guardian of Reginald Cecil Lane;

LINDA MARLENE LANE, an individual

Plaintiffs - Appellants

v.

HALLIBURTON, a Corporation; KELLOGG BROWN AND ROOT

HOLDINGS LLC; KELLOGG BROWN & ROOT INC, a Corporation and

Wholly Owned Subsidiary of Halliburton and Kellogg Brown and Root

Holdings LLC; SERVICE EMPLOYEES INTERNATIONAL INC, a Foreign

Corporation and Wholly Owned Subsidiary of Halliburton and Kellogg Brown

and Root International Inc; DII INDUSTRIES LLC, a Wholly Owned

Subsidiary of Halliburton Energy Services Inc, a Corporation;

HALLIBURTON ENERGY SERVICES INC, a Corporation; BROWN &

ROOT SERVICES, a Division of Kellogg Brown and Root, Inc, a Corporation;

KELLOGG BROWN & ROOT SERVICES INC, a Corporation and Wholly

Owned Subsidiary of Kellogg Brown and Root Inc; KELLOGG BROWN AND

ROOT INTERNATIONAL INC, a Corporation and a Wholly Owned

Subsidiary of Kellogg Brown and Root Inc, a Corporation; STRATEGIC

ECOMM INC; DOE DEFENDANTS 1 through 10

Defendants-Appellees

Consolidated with

No. 06-20905

No. 06-20874

KEVIN SMITH-IDOL, Individually

Plaintiff - Appellant

v.

HALLIBURTON, a Corporation; KELLOGG BROWN & ROOT INC, a

Corporation and Wholly Owned Subsidiary of Haliburton; SERVICE

EMPLOYEES INTERNATIONAL INC, a Foreign Corporation and Wholly

Owned Subsidiary of Halliburton; KELLOGG BROWN & ROOT SERVICES

INC, a Subsidiary of Kellogg Brown & Root; DII INDUSTRIES LLC, the

Parent Company of Kellogg Brown & Root; KELLOGG BROWN AND ROOT

INTERNATIONAL INC, the Parent Company of Service Employees

International Inc

Defendants - Appellees

Consolidated with

No. 06-20915

INGRID FISHER, individually and as successor in interest to decedent

Steven Fisher; KRISTEN FISHER, individually and as successor in interest

to decedent Steven Fisher; STEVEN FISHER, JR, a minor, individually and

as successors in interest to decedent Steven Fisher by and through next

friend Ingrid Fisher; KATHLEEN FISHER, a minor individually and as

successors in interest to decedent, Steven Fisher, by and through next friend

Ingrid Fisher; MARJORIE BELL-SMITH, individually and as successor in

interest to decedent Timothy Bell; CHA SADIE TUNSTALL, a minor,

individually and as successor in interest to decedent Timothy Bell by and

through her next friend Jacqueline Tunstall; ANDREW JACKSON

BRADLEY, individually and as successor in interest to decedent William

Bradley; HOLLIE HULETT, individually and as successor in interest to

decedent Steven HULETT; ALEXANDRIA SLINGERLAND, individually and

as successor in interest to decedent Steven HULETT; JACK SLINGERLAND,

individually and as successor in interest to decedent Steven HULETT; LOIS

PARKER, individually and as successor in interest to decedent Jeffrey

Parker; MICHAEL BREZOVAY; NELSON HOWELL; BETSY MONTEGUE,

individually and as successor in interest to decedent Jack Montegue;

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No. 06-20874

JACQUELYNE MONTEGUE, a minor inividually and as successor in

interest to decedent Jack Montegue, by and through her next friend, Betsy

Montegue; DONNA HOWELL; JACKIE LESTER; NAOMI LESTER;

WILLIAM J PETERSON; EDWARD SANCHEZ, JR; DANA SANCHEZ;

CALVIN KEITH STANLEY; RAYMOND T STANNARD; RICKY L

TOLLISON; DANNY R WOOD; LISA HULETT, individually and as successor

in interest to decedent Steven Hulett; APRIL JOHNSON, individually and as

successor in interest to decedent Tony Johnson; JAMES BLACKWOOD;

JOANN BLACKWOOD; NICHOLAS T CAFFEY; a minor, individually and as

successor in interest to decedent Timothy Bell, by and through his next friend

Karen Caffey; TIMOTHY E CAFFEY, Individually and as successor in

interest to decedent Timothy Bell

Plaintiffs - Appellants

v.

HALLIBURTON, a Corporation; KELLOGG BROWN & ROOT INC, a

Corporation and Wholly Owned Subsidiary of Halliburton and Kellogg Brown

& Root Holdings LLC; SERVICE EMPLOYEES INTERNATIONAL INC, a

Foreign Corporation and Wholly Owned Subsidiary of Halliburton and

Kellogg Brown & Root International Inc; KELLOGG BROWN & ROOT

SERVICES INC, a Corporation and a Wholly Owned Subsidiary of Kellogg

Brown & Root Inc; DII INDUSTRIES LLC, a Wholly Owned Subsidiary of

Halliburton Energy Services Inc, a Corporation; KELLOGG BROWN AND

ROOT INTERNATIONAL INC, a Corporation and a Wholly Owned

Subsidiary of Kellogg Brown & Root Inc, a Corporation

Defendants - Appellees

Appeals from the United States District Court

for the Southern District of Texas

Before KING, DeMOSS, and SOUTHWICK, Circuit Judges.

SOUTHWICK, Circuit Judge:

This appeal consolidates three cases brought by civilian truck drivers, or

their spouses and dependents (collectively “Plaintiffs”), against Halliburton,

Kellogg Brown & Root, Inc., and various subsidiaries (collectively “KBR”), for

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No. 06-20874

injuries sustained while working for KBR in Iraq. The district court dismissed

all of the Plaintiffs’ claims with prejudice, holding that their cases were

nonjusticiable under the political question doctrine. On appeal, the Plaintiffs

argue that KBR has not shown that resolving their tort claims will require the

district court to answer a political question. We agree to the extent of concluding

that the case needs further factual development before it can be known whether

that doctrine is actually an impediment. We therefore reverse and remand.

I. FACTS AND PROCEEDINGS

A. Factual Background

Following the terrorist attacks of September 11, 2001, the United States

led a military invasion of Afghanistan and, later, Iraq. In order to support its

military mission, the United States Army awarded KBR a contract under the

authority of its Logistics Civil Augmentation Program (“LOGCAP”). Pursuant

to the LOGCAP contract, KBR provided logistical support services to the

military forces operating in Iraq.

Under LOGCAP, the Army is authorized to employ “civilian contractors

to perform selected services in wartime to augment Army forces.” U.S. Army

Reg. 700-137, at 1-1 (Dec. 16, 1985). LOGCAP contracts allow the Army to

“achieve the maximum combat potential . . . by capitalizing on the civilian sector

. . . .” Id. at 2-1(a). The record contains ample evidence that the military finds

the use of civilian contractors in support roles to be an essential component of

a successful war-time mission. Army Regulations provide that contractors

employed pursuant to LOGCAP are not under the direct supervision of the

military. U.S. Army Reg. 700-137, at 3-2(d). However, the regulations also

establish that the military must assess the risk of any mission and determine

whether contractor support is suitable in certain situations and locations. Id.

at 2-4(b), 3-1(a). This assessment must consider “the safety of contractor

personnel.” Id. at 3-1(a).

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No. 06-20874

The Army Field Manual makes clear that the military is responsible for

providing adequate force protection and a safe workplace for contractors and

their employees who are performing support services overseas. FM 3-100.21, at

6-4 to 6-6; see also Army Reg. 715-9, at 1-5(k)(2)-(3) (Oct. 29, 1999). The

provisions of the LOGCAP contract and the relevant implementing Task Orders

make the responsibility of the military explicit to provide security-related

intelligence gathering and force protection for KBR convoys in Iraq.

To fulfill its obligations under the LOGCAP contract, KBR recruited

civilian truck drivers in the United States to work in Iraq. Plaintiffs assert that

KBR’s recruitment materials misrepresented the risks that prospective

employees would face in Iraq. Plaintiffs allege that KBR portrayed the work

that the Plaintiffs would be performing as rebuilding activity and told recruits

that they would not be sent to work in a “war zone or combat area.” To support

their claims, Plaintiffs point to information such as a web site that assured

applicants that “[f]ull 24 hour a day U.S. military protection will be in place to

insure safety. With new heightened security you’ll be 100% safe.” In addition,

KBR circulated a memorandum to its employees asserting that while their work

would be performed in a “hostile environment . . . [t]his does not mean your

safety will be compromised.” The Plaintiffs allege that these and other

misrepresentations by KBR regarding the nature of the work and the level of

safety the Plaintiffs could expect in Iraq induced Plaintiffs to enter into and

remain in the employment of KBR.

Plaintiffs allege that KBR’s promises of a safe work environment were

proven false in April 2004. On April 8, 2004, Plaintiff Kevin Smith-Idol was

transporting fuel when his convoy came under attack by Iraqi insurgents.

Smith-Idol was injured as a result of the insurgent attack.1 The next day,

1

Smith-Idol v. Halliburton, et al., No. 06-20905 (5th Cir. filed Nov. 21, 2006).

5

No. 06-20874

additional fuel convoys were deployed; attacks on these convoys resulted in the

injury and death of more KBR truck drivers.2 Plaintiffs allege that KBR

authorized these convoys even though it was aware that the routes they would

travel were subject to a very high risk of insurgent attack.

The Plaintiffs also allege that KBR misrepresented its ability to halt work

if conditions in Iraq posed a threat to employee safety. The KBR memorandum

discussed above also assured employees that “[e]ach of you has . . . authority to

stop any activity which you believe to be unsafe.” However, the Plaintiffs allege

that KBR failed to halt its convoys even though it knew conditions were unsafe

in April 2004 or failed to inform its employees that conditions were unsafe,

preventing them from opting not to participate in the convoys.

According to the Plaintiffs, KBR bears responsibility for their injuries

under various theories of state and federal law. Their state law claims break

down into two general categories. The first are fraud based claims including

fraud and deceit, fraud in the inducement, intentional concealment of material

facts, intentional misrepresentation, and civil conspiracy to commit fraud. The

essence of these claims is that KBR utilized intentionally misleading and false

advertisements and recruiting materials to induce Plaintiffs to accept

employment with KBR and relocate to Iraq. As a result of their reliance on these

statements, Plaintiffs allege that they suffered damages.

The second set of state law claims are not based on fraud. The Plaintiffs

in each of the three cases allege that KBR’s actions constituted intentional

infliction of emotional distress under Texas law. In addition, the Lane Plaintiffs

assert claims for negligence and gross negligence. Some of the Fisher Plaintiffs

assert wrongful death and survivorship causes of action under Texas law.

2

The two remaining consolidated cases involve drivers (or their representatives) who

were involved in the April 9 convoys. Lane v. Halliburton, et al., No. 06-20874 (5th Cir. filed

Nov. 13, 2006) (Lane and his wife); Fisher, et al. v. Halliburton, et al., No. 06-20915 (5th Cir.

filed Nov. 27, 2006).

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No. 06-20874

In addition to their state law claims, Plaintiff Smith-Idol and the Fisher

Plaintiffs allege federal civil rights violations under 42 U.S.C. § 1983 and

violations, along with conspiracy to commit violations, of the Racketeer

Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c)-(d). The Lane

Plaintiffs do not allege violations of federal law.

B. Disposition by the District Court

The district court dismissed Fisher v. Halliburton first, holding that the

Plaintiffs’ claims raised nonjusticiable political questions.3 Under the district

court’s analysis, the Fisher Plaintiffs’ claims were “inextricable” from three of

the six political question formulations identified in Baker v. Carr, 369 U.S. 186,

217 (1962). Fisher v. Halliburton, 454 F. Supp. 2d 637, 639-45 (S.D. Tex. 2006).

First, the claims against KBR involved a textual constitutional commitment to

a coordinate political branch of government because resolution of those claims

would require the court to review the Executive’s conduct of military matters in

Iraq. Id. at 640-41. Next, the court stated that it was aware of no judicial

standards by which it could review the Army’s decisions regarding war-time

intelligence gathering, troop deployment, and convoy protection. Id. at 641-44.

Finally, the court suggested that a decision in the case would necessarily involve

a judicial determination as to whether it was appropriate for the military to

3

KBR argued alternatively that it was immune from suit under various theories of

official immunity and that the suit was barred by the Defense Base Act, 42 U.S.C. §§ 1651-

1654. The district court relied solely on the political question doctrine in dismissing the suit,

stating that KBR’s alternative defenses were moot due to the district court’s lack of subject

matter jurisdiction. Fisher, 454 F. Supp. 2d at 639 n.14. KBR has also raised those defenses

on appeal. However, we consider only whether the political question doctrine presents a

jurisdictional bar to the district court’s adjudication of the Plaintiffs’ claims. We express no

opinion on the merits of KBR’s alternative defenses to liability. Furthermore, we do not mean

to indicate that the district court is bound to continue its efforts to extricate the Plaintiffs’

claims from the military’s decisions indefinitely. If any of KBR’s alternative arguments “weigh

heavily in favor of dismissal,” the district court might determine whether there is a “less

burdensome course” of disposing of the Plaintiffs’ cases without reaching their merits. See

Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 127 S. Ct. 1184, 1194 (2007).

7

No. 06-20874

dispatch convoys in April 2004, and, in a broader sense, whether it was wise for

the Executive to use civilian contractors in a war zone. Id. at 644. The decision

would invoke the third Baker formulation because it would involve policy

determinations that were better suited for nonjudicial discretion. Id.

The district court’s order did not separately analyze the Fisher Plaintiffs’

various claims. Although it set forth the various claims, the order undertook a

general view of the case presented and concluded that it “[could not] try a case

on a battlefield during war-time without an impermissible intrusion into powers

expressly granted to the Executive by the Constitution.” Id. at 641. The district

court subsequently dismissed the two other cases that have been consolidated

for this appeal. The orders in both of those cases provide a brief factual and

procedural background unique to the respective plaintiffs, but grant KBR’s

motion to dismiss for the reasons enumerated in the Fisher Order. See Smith-

Idol v. Halliburton, No. 4:06-cv-01168, 2006 WL 2927685 (S.D. Tex. Oct. 11,

2006); Lane v. Halliburton, No. 4:06-cv-01971, 2006 WL 2796249, (S.D. Tex.

Sept. 26, 2006). Like the Fisher Order, these orders do not separate the

Plaintiffs’ various causes of action for analysis.

In the district court’s view, the most important facts in these three cases

were derived from the language of KBR’s LOGCAP contract and the relevant

Army regulations. These documents, governing KBR’s actions in every case and

overriding the individual facts of any particular case, “show overwhelmingly that

the Army was an integral part of any decision to deploy and protect convoys.”

Fisher, 454 F. Supp. 2d at 643.

II. DISCUSSION

A. Standard of Review

In each of these cases, the district court granted KBR’s motion to dismiss

for lack of subject matter jurisdiction under Federal Rule of Civil Procedure

12(b)(1). We review de novo the district court’s dismissal under Rule 12(b)(1),

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No. 06-20874

just as we would a dismissal under Rule 12(b)(6). Bombardier Aerospace

Employee Welfare Benefits Plan v. Ferrer, Poirot and Wansbrough, 354 F.3d 348,

351 (5th Cir. 2003). In reviewing the dismissal order, we take the well-pled

factual allegations of the complaint as true and view them in the light most

favorable to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205

(5th Cir. 2007).

Under Rule 12(b)(6), a claim should not be dismissed unless the court

determines that it is beyond doubt that the plaintiff cannot prove a plausible set

of facts that support the claim and would justify relief. Bell Atlantic Corp. v.

Twombly, 127 S. Ct. 1955, 1965-66 (2007). This analysis is generally confined

to a review of the complaint and its proper attachments. Fin. Acquisition

Partners v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006). However, under Rule

12(b)(1), the court may find a plausible set of facts by considering any of the

following: “(1) the complaint alone; (2) the complaint supplemented by the

undisputed facts evidenced in the record; or (3) the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts.” Barrera-

Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996).

In these appeals, we must determine by viewing the allegations in the

most favorable light, whether the Plaintiffs can prove any plausible set of facts

that would permit recovery against KBR without compelling the court to answer

a nonjusticiable political question. Specifically, would resolving the Plaintiffs’

tort-based legal claims invariably require analyzing the Executive’s war-time

decision-making, or do KBR’s actions and motives form the sole issues?

B. Political Question Doctrine – General Principles

“Questions, in their nature political, or which are, by the constitution and

laws, submitted to the executive, can never be made in this court.” Marbury v.

Madison, 5 U.S. 137, 170 (1803). This “political question” doctrine reflects the

principle that, under our Constitution, there are some questions that cannot be

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answered by the judicial branch. Out of due respect for our coordinate branches

and recognizing that a court is incompetent to make final resolution of certain

matters, these political questions are deemed “nonjusticiable.” See Baker, 369

U.S. at 198. A declination of jurisdiction under the doctrine presupposes that

another branch of government is both capable of and better suited for resolving

the “political” question. See Vieth v. Jubelirer, 541 U.S. 267, 277 (2004); Japan

Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 229-30 (1986).

Political questions are labeled “nonjusticiable” because there is an

undeniable difference between finding no federal jurisdiction at the outset of a

case and declaring that a particular matter is inappropriate for judicial

resolution only after some consideration of the merits. Baker, 369 U.S. at 198.

In the instance of nonjusticiability, consideration of the cause is not

wholly and immediately foreclosed; rather, the Court’s inquiry

necessarily proceeds to the point of deciding whether the duty

asserted can be judicially identified and its breach judicially

determined, and whether protection for the right asserted can be

judicially molded.

Id. The Baker analysis is not satisfied by “semantic cataloguing” of a particular

matter as one implicating “foreign policy” or “national security.” Instead, Baker

demands a “discriminating inquiry into the precise facts and posture of the

particular case” before a court may withhold its own constitutional power to

resolve cases and controversies. Id. at 216.

To aid courts in the “discriminating inquiry,” the Supreme Court identified

“formulations” that may help determine whether a particular case raises a

political question, which we enumerate though the Supreme Court did not:

(1) “a textually demonstrable constitutional commitment of the issue to

a coordinate political department;”

(2) “a lack of judicially discoverable and manageable standards for

resolving it;”

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No. 06-20874

(3) “the impossibility of deciding without an initial policy determination

of a kind clearly for nonjudicial discretion;”

(4) “the impossibility of a court’s undertaking independent resolution

without expressing lack of the respect due coordinate branches of

government;”

(5) “an unusual need for unquestioning adherence to a political decision

already made;”

(6) “or the potentiality of embarrassment from multifarious

pronouncements by various departments on one question.”

369 U.S. at 217. “[T]he inextricable presence of one or more of these factors will

render the case nonjusticiable under the Article III ‘case or controversy’

requirement . . . .” Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of

Petroleum, 577 F.2d 1196, 1203 (5th Cir. 1978).

At the outset, we acknowledge that the Plaintiffs’ claims are set against

the backdrop of United States military action in Iraq. Thus, these cases are at

the very least in sight of an arena in which the political question doctrine has

served one of its most important and traditional functions – precluding judicial

review of decisions made by the Executive during wartime. At one time, the

Supreme Court appeared to have categorically removed disputes implicating “the

conduct of foreign relations” from judicial purview. See Oetjen v. Cent. Leather

Co., 246 U.S. 297, 302 (1918). Later, the Court declared that “it is not the

function of the Judiciary to entertain private litigation – even by a citizen –

which challenges the legality, the wisdom, or the propriety of the Commander-

in-Chief in sending our armed forces abroad or to any particular region.”

Johnson v. Eisentrager, 339 U.S. 763, 789 (1950). And in Gilligan v. Morgan, in

the course of declaring nonjusticiable a challenge to readiness decisions made

and orders given by the Ohio National Guard, the Court made the following

observation:

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No. 06-20874

It would be difficult to think of a clearer example of the type of

governmental action that was intended by the Constitution to be left

to the political branches . . . . Moreover, it is difficult to conceive of

an area of governmental activity in which the courts have less

competence. The complex subtle, and professional decisions as to

the composition, training, equipping, and control of a military force

are essentially professional military judgments, subject always to

civilian control of the Legislative and Executive Branches. The

ultimate responsibility for these decisions is appropriately vested in

branches of the government which are periodically subject to

electoral accountability.

413 U.S. 1, 10 (1973). This court has followed the command that matters

implicating foreign relations and military affairs are generally beyond the

authority or competency of a court’s adjudicative powers. E.g., Farmer v. Mabus,

940 F.2d 921, 923 (5th Cir. 1991); Occidental, 577 F.2d at 1203.

On the other hand, not all questions “touching foreign relations” are

nonjusticiable. Baker, 369 U.S. at 211; see Can v. United States, 14 F.3d 160,

163 (2d Cir. 1994) (“The political question doctrine must be cautiously invoked

. . . .”). Indeed, the Court warned that “it is error to suppose that every case or

controversy which touches foreign relations lies beyond judicial cognizance.” Id.

Before declaring cases such as these to be nonjusticiable, a court must undertake

“a discriminating analysis of the particular question posed, in terms of the

history of its management by the political branches, of its susceptibility to

judicial handling in the light of its nature and posture in the specific case, and

of the possible consequences of judicial action.” Id. at 211-12; see Dickson v.

Ford, 521 F.2d 234, 235-36 (5th Cir. 1975).

With these principles in mind, we turn to the district court’s application

of the Baker formulations to these particular cases.

C. Application of the Baker Formulations

The district court concluded that the Plaintiffs’ cases met “not one, but

three of the formulations described in Baker v. Carr.” Fisher, 454 F. Supp. 2d

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No. 06-20874

at 644. As we discuss the Baker factors, we are mindful that the purpose of the

political question doctrine is to bar claims that have the potential to undermine

the separation-of-powers design of our federal government. Although the Baker

formulations provide useful analytical guideposts in our analysis, “[w]hether an

issue presents a nonjusticiable political question cannot be determined by a

precise formula.” Saldano v. O’Connell, 322 F.3d 365, 368 (5th Cir. 2003). We

are asked to declare that the very design of our federal government compels the

Plaintiffs to seek redress from the political branches for KBR’s alleged

fraudulent and negligent acts. This requires a “delicate exercise in

constitutional interpretation,” an exercise that is not satisfied by simplistically

plugging facts into factors. See Baker, 369 U.S. at 211.

1. Textual commitment

The district court first found that the issues raised by the Plaintiffs’ claims

implicated a “textually demonstrable constitutional commitment” to the

Executive Branch, namely, that war and foreign policy decisions are for the

Executive. Fisher, 454 F. Supp. 2d at 640-41. Of course, the Constitution

commits to Congress the power to raise and support an army and navy, and to

the Executive the responsibilities of commanding those armed forces. U.S.

Const. art. I, § 1, cls. 12-14; art. II, § 2. The “decisions whether and under what

circumstances to employ military force are constitutionally reserved for [these

two] branches.” Tiffany v. United States, 931 F.2d 271, 277 (4th Cir. 1991). The

“strategy and tactics employed on the battlefield are clearly not subject to

judicial review.” Id.

We disagree with the district court’s “textual commitment” analysis

because at this stage we cannot find that all plausible sets of facts that could be

proven would implicate particular authority committed by the Constitution to

Congress or the Executive. Examples of cases that implicate a textual

commitment of constitutional authority to the Executive Branch include a

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No. 06-20874

challenge to the President’s decision to deploy troops in a foreign land,

Eisentrager, 339 U.S. at 789, or mine the harbors of another country in the

course of a war against that country, DaCosta v. Laird, 471 F.2d 1146, 1153-57

(2d Cir. 1973); so too has such a textual commitment been involved when a suit

seeks judicial oversight of training procedures employed by the National Guard,

Gilligan, 413 U.S. at 5-10, requests an injunction of all nuclear testing, Pauling

v. McNamara, 331 F.2d 796 (D.C. Cir. 1963), or requires the resolution of a

territorial dispute between foreign sovereigns, Occidental, 577 F.2d at 1202-03.

These are matters that the President is constitutionally privileged to address.

In addition, as these cases suggest, the first Baker formulation is primarily

concerned with direct challenges to actions taken by a coordinate branch of the

federal government. See McMahon v. Presidential Airways, Inc., 502 F.3d 1331,

1359 (11th Cir. 2007). KBR is not part of a coordinate branch of the federal

government. Therefore, to invoke the “textual commitment” factor, KBR faces

a “double burden.” Id. “First, [KBR] must demonstrate that the claims against

it will require reexamination of a decision by the military. Then, it must

demonstrate that the military decision at issue is . . . insulated from judicial

review.” Id. at 1359-60 (emphasis in original; citation omitted).

Contrary to the situations regarding matters of war, there is no textual

commitment to the coordinate branches of the authority to adjudicate the merits

of the Plaintiffs’ claims against KBR for breach of its duties. In fact, when faced

with an “ordinary tort suit,” the textual commitment factor actually weighs in

favor of resolution by the judiciary. See Klinghoffer v. S.N.C. Achille Lauro, 937

F.2d 44, 49-50 (2d Cir. 1991). It is an extraordinary occasion, indeed, when the

political branches delve into matters of tort-based compensation. See, e.g.,

September 11th Victim Compensation Fund of 2001, Pub. L. No. 107-42, §§ 401-

409, 115 Stat. 230, 237-41 (2001). Viewing the facts in a light most favorable to

the Plaintiffs, their claims challenge actions taken and omissions made only by

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KBR. That company’s conduct can be examined by a federal court without

violating the Constitution’s separation of powers.

2. Lack of Judicially Manageable Standards

A political question looms menacingly when a claim suffers from “a lack

of judicially discoverable and manageable standards for resolving it.” Baker, 369

U.S. at 217. “One of the most obvious limitations imposed by [Article III, § 1, of

the Constitution] is that judicial action must be governed by standard, by rule.”

Vieth, 541 U.S. at 278 (plurality opinion). This is arguably the most critical

factor in the political question analysis in the present litigation because at least

some of the allegations would draw a court into a consideration of what

constituted adequate force protection for the convoys.4

This factor relates most directly to our later analysis of the elements that

the Plaintiffs must prove in order to prevail on their state tort claims.

Consequently, our analysis under Baker is incomplete, as it is not until the final

section of the opinion – where we review in some depth what the Plaintiffs must

prove to prevail – that all considerations will be reviewed. What is the cart, and

which is the horse, may be disputed, but we seek to get the proper analytical

alignment before we are finished.

The district court found that the actions of KBR and the Army regarding

the decision-making and control of the Plaintiffs’ convoys were so intertwined

that to question KBR’s decisions is necessarily to question the Army’s decisions.

Fisher, 454 F. Supp. 2d at 642. In the district court’s view, in order for the

4

We recognize that the first and second Baker factors overlap in the circumstances

presented by these cases, where military judgments are potentially subject to review. The

Plaintiffs’ claims, which do not directly challenge any government actor or Executive action,

are far-enough removed from the type of textual commitment envisioned by Baker and its

progeny to shift our primary analysis to the second factor. However, we do not suggest that

the first factor is wholly irrelevant. On remand, the district court may well find that it

continues to be an important consideration in these cases. Again, we are mindful that the

claims need not fit neatly under a particular factor. The inextricableness of any factor will

reveal the existence of a political question. Occidental, 577 F.2d at 1203.

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Plaintiffs to prevail, the court would have to determine whether the Army gave

sufficient information to KBR about the route the convoys were to take, whether

the force protection provisions were sufficient, and whether the military

personnel assigned to protect the convoys performed properly.

KBR argues that the judiciary will find no manageable standards for

assessing the reasonableness of the Army’s professional military judgments.

The Plaintiffs stress that Army judgments are not the issue. Instead, it is

argued that the fraud and negligence claims, leveled only against KBR, are

uniquely suited for judicial resolution. American courts have resolved such

matters between private litigants since before the adoption of the Constitution.

See THE FEDERALIST NO. 80 (Alexander Hamilton). KBR does not deny that the

judiciary possesses the expertise and has available the required standards to

resolve ordinary fraud and negligence claims, but suggests that the unique

factual setting of Plaintiffs’ injuries renders these claims extraordinary.

KBR’s argument and the district court’s opinion rely on the fact that the

relevant LOGCAP contracts and implementing Task Orders place the

responsibility for force protection squarely on the Army. Warding off attacks

capable of inflicting injury on these civilian truck drivers was a military duty,

not a duty owed by KBR to its employees. KBR’s argument in effect is that no

matter how unsafe the roads of Iraq might be, KBR’s assurances to potential

employees could be made under the assumption that the military would provide

sufficient force protection for any convoy mission.5 A court, KBR posits, can

neither ignore the Army’s role in these cases nor judge whether the Army

adequately performed that role.

5

At oral argument, counsel for KBR suggested that only if KBR could determine that

the military had breached the LOGCAP contract could it then refuse to direct its civilian

employees to participate in a convoy. The only example of a demonstrable breach that counsel

could provide was the military’s failure to “show up at the gate” at the appointed departure

time; that is, a failure to provide any force protection at all.

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No. 06-20874

Evaluating this assertion by KBR requires us to understand just what the

Plaintiffs must prove to prevail. We defer a detailed discussion of that until

later when we review the elements of Texas tort law. The central issue will be

causation. If we must examine the Army’s contribution to causation, “political

question” will loom large. However, 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. That

would occur if KBR made assurances to prospective employees that were

premised on others, such as the Army, performing in a way that was unrealistic

to expect or even impossible. As this court noted long ago, “[i]f the misconduct

is of a character which, according to the usual experience of mankind, is

calculated to afford an opportunity for the intervention of some subsequent

cause, the subsequent mischief may be held to be a result of such misconduct.”

The Mariner, 17 F.2d 253, 254 (5th Cir. 1927). The Plaintiffs allege that they

accepted employment in a war zone because KBR guaranteed that they would

not be dispatched to perform work if conditions were unsafe. If KBR tortiously

guaranteed safety when it knew there was no such safety, it may be liable for

resulting injuries despite that the immediate causes were determined attackers

that could not be thwarted by the best efforts of American defenders. These are

the risks to which KBR allegedly promised not to expose the Plaintiffs. We will

later discuss the tort standards for judging causation in such cases.

We now review how such claims as we just defined them might violate the

second Baker factor. The factor is a recognition that “courts are fundamentally

underequipped to formulate national policies or develop standards for matters

not legal in nature.” Japan Whaling, 478 U.S. at 230 (quoting United States ex

rel. Joseph v. Cannon, 642 F.2d 1373, 1379 (D.C. Cir. 1981)).

In Japan Whaling, the Supreme Court faced a challenge to the Secretary

of State’s refusal to certify that Japan’s whaling practices were out of compliance

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No. 06-20874

with an international treaty; this certification was allegedly mandated by certain

congressional legislation. Id. at 224-28. The Court acknowledged “the premier

role which both Congress and the Executive play in [the field of foreign

relations],” but resolved the challenge nonetheless because a decision in the case

“call[ed] for applying no more than the traditional rules of statutory

construction, and then applying this analysis to the particular set of facts

presented below.” Id. at 230. The ready availability of legal standards and the

traditional role of the judiciary in interpreting statutes compelled the court to

resolve the matter even while it recognized that its “decision may have

significant political overtones.” Id.

By contrast, the court in Cannon could find no judicial standards by which

to resolve a claim that a Senator’s aide was illegally paid his federal salary while

engaging in campaign activity. 642 F.2d at 1375-76. Describing the suit as a

“challenge to the interworkings of a Senator and his staff member,” the court

noted the utter absence of statutory, administrative or case law – on which

courts rely on to resolve legal disputes – covering this particular matter. Id. at

1379-80. In fact, the Senate itself had failed to reach a consensus on the issue

confronting the court. Id. at 1380. Under these circumstances, the court refused

to resolve the dispute because doing so would “require the judiciary to develop

rules of behavior for the Legislative Branch.” Id. at 1385; see also Tiffany, 931

F.2d at 278-79 (refusing to craft “prudent intercept” standard for judging

whether North American Air Defense Command’s order to intercept potentially

hostile aircraft was legally sufficient).

The cases before us are closer to Japan Whaling than Cannon or Tiffany.

They primarily raise legal questions that may be resolved by the application of

traditional tort standards that we discuss below. We are not asked to develop

a “prudent force protection” standard and then impose that standard directly on

the Army. See Tiffany, 931 F.2d at 278-79. While the resolution of Plaintiffs’

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No. 06-20874

claims may require a court to adjust traditional tort standards to account for the

“less than hospitable environment” in which KBR operated, the court will

arguably have no need to develop any standards at all. Cf. McMahon, 502 F.2d

at 1363-64. The standards for judging at least the assertions of civilian

employers that cause injury to their employees are readily available.

3. Nonjudicial policy determination

The district court also determined that a resolution of the Plaintiffs’ claims

would necessarily entail a judicial pronouncement as to the wisdom of the

military’s use of civilian contractors in a war zone. Id. at 644.6 As such, the

court would be compelled to make a policy determination that is reserved to the

discretion of the political branches, implicating the third Baker factor. Id. If

that is part of the Plaintiffs’ claims, then the political question doctrine does

prevent resolution. For example, the Eleventh Circuit refused to entertain tort

suits by Turkish sailors against the United States Navy for injuries sustained

during a multi-national military training exercise because, inter alia, resolution

of the suits would require the court to “render a policy determination regarding

the necessity of simulating actual battle conditions.” Aktepe v. United States,

105 F.3d 1400, 1404 (11th Cir. 1997). The judiciary cannot announce policy

positions on military readiness for which it is neither equipped nor, more

importantly, constitutionally empowered to speak.

6

In its brief as amicus curiae in support of KBR, the National Defense Industrial

Association stresses the importance of the combat support services that civilian contractors

have long provided to the United States Armed Forces. It suggests that a decision that KBR

may be liable for the Plaintiffs’ injuries may deter civilian contractors from entering military-

related contracts in the future. We agree that the employment of civilian contractors has

proved vital to the military’s maximizing its force projection. Though we make no final

determinations today, if some liability ultimately is imposed, it likely would be for torts largely

committed in this country during the hiring process, with damages arising in a war zone. The

impact of such a result on a civilian company’s willingness to contract with the military is not

a factor that we may use to deny Plaintiffs a forum in federal court. See Japan Whaling, 478

U.S. at 230 (“[W]e cannot shirk this responsibility [to resolve justiciable cases] merely because

our decision may have significant political overtones.”).

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No. 06-20874

To recover, the Plaintiffs may not need a court to evaluate the Executive’s

longstanding policy of employing civilian contractors in combat-support roles.

KBR’s intended defense has not been shown as legitimately implicating this

broad, policy-based decision. All parties accept that the Executive acted within

his discretionary authority to employ KBR to support the military mission in

Iraq. The court will be asked to judge KBR’s policies and actions, not those of

the military or Executive Branch.

In sum, our analysis of the Baker factors convinces us that the district

court will not inevitably be drawn into a reconsideration of military decisions or

be forced to announce its opposition to an Executive or Congressional policy.

Instead, as we discuss below, the application of traditional tort standards may

permit the district court to navigate through this politically significant case

without confronting a political question.

We turn now to the tort elements and attempt a “discriminating inquiry

into the precise facts and posture” of these cases against KBR.

D. The Plaintiffs’ Claims

We find it useful at the beginning of this final section of analysis to

identify with some precision the elements Plaintiffs must prove in order to

prevail on their tort claims. Ultimately, we focus our attention on causation

because it is under this element that the confluence of the Plaintiffs’ proof and

KBR’s defense presents the greatest potential for inextricableness.7

1. Claims and Elements

7

On appeal, the Plaintiffs have focused their efforts on demonstrating that the fraud

claims and “traditional personal injury claims” are justiciable. Therefore, we do not attempt

to set forth the elements necessary to establish the alleged violations of federal law under 42

U.S.C. § 1983 and 18 U.S.C. § 1962(c)-(d). Still, we do not deem these claims to be waived.

The district court dismissed all claims based on a lack of jurisdiction; the court did not consider

the merits of any particular claim. In light of our decision today, all of the Plaintiffs’ claims

remain viable unless and until a “discriminating inquiry” reveals that they are, in fact,

nonjusticiable under the political question doctrine.

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No. 06-20874

Plaintiffs’ fraud-based claims arise under Texas law. To recover for fraud

in Texas, the Plaintiffs must prove: “(1) that a material representation was

made; (2) the representation was false; (3) when the representation was made,

the speaker knew it was false or made it recklessly without any knowledge of its

truth and as a positive assertion; (4) the speaker made the representation with

the intent that the other party should act upon it; (5) the party acted in reliance

on the representation, and (6) the party thereby suffered injury.” In re

FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001); see also Stone v. Lawyers

Title Ins. Corp., 554 S.W.2d 183, 185 (Tex. 1977). These elements are applicable

to claims of both fraud in the inducement and intentional misrepresentation.

See Haase v. Glazner, 62 S.W.3d 795, 798-99 (Tex. 2001); RenCare, Ltd. v. United

Med. Res., Inc., 180 S.W.3d 160, 166 (Tex. App. 2005).

The Plaintiffs’ claim of intentional or fraudulent concealment is also

grounded in common law fraud. To prevail on a fraudulent concealment claim,

the Plaintiffs must prove the elements of fraud that we have noted above, and

that “the particular circumstances impose a duty on the party to speak and he

deliberately remains silent.” In re Seigel, 198 S.W.3d 21, 29 (Tex. App. 2006).

In order to prove their final fraud-based claim of civil conspiracy, the Plaintiffs

must show that two or more persons combined “to accomplish an unlawful

purpose or to accomplish a lawful purpose by unlawful means.” Eagle Props.,

Ltd. v. KPMG Peat Marwick, 912 S.W.2d 825, 828 (Tex. App. 1995). “The

elements of a civil conspiracy are: (1) two or more persons; (2) an end to be

accomplished; (3) meeting of the minds on the end or course of action; (4) one or

more overt, unlawful acts; and (5) proximately resulting in injury.” Id.

With regard to their remaining claims, all Plaintiffs allege that KBR

intentionally inflicted emotional distress. In order to prevail on these claims

under Texas law, the Plaintiffs must show that the defendant: (1) intentionally

or recklessly (2) engaged in conduct that was “extreme and outrageous” (3)

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No. 06-20874

thereby causing the plaintiff to suffer emotional distress (4) and that distress

was severe. Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606,

613 (5th Cir. 1999). The Lane Plaintiffs also allege that KBR committed

negligent and grossly negligent acts. “Under Texas law, the elements of a

negligence claim are (1) a legal duty on the part of the defendant; (2) breach of

that duty; and (3) damages proximately resulting from that breach.” Sport

Supply Group, Inc. v. Columbia Cas. Co., 335 F.3d 453, 466 (5th Cir. 2003).

Gross negligence is a heightened form of negligence which requires proof of “an

extreme degree of risk” and a “conscious indifference” by the negligent actor. See

Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998).

2. Element of Causation

With the parameters of the political question doctrine and the nature and

elements of the Plaintiffs’ tort claims in mind, we focus on the element that is

the most critical element for political question analysis – causation. The parties

in their briefs appear to agree that this element presents the greatest potential

for implicating the political question bar. This element is critical because we

must “analyze appellant’s claim as it would be tried, to determine whether a

political question will emerge.” Occidental, 577 F.2d at 1202. We must look

beyond the complaint, considering how the Plaintiffs might prove their claims

and how KBR would defend. Nonetheless, a court must satisfy itself that

political question will certainly and inextricably present itself. Id.

We recognize that the district court was not presented with a focused

argument regarding the significance of the causation element. Much more was

presented below. For example, in the suit brought by Fisher’s survivors, KBR

initially moved to dismiss on the grounds that the Defense Base Act, 42 U.S.C.

§§ 1651-1654, and the Federal Tort Claims Act barred the Plaintiffs suit. Later

KBR renewed its motion to dismiss, arguing that it was immune from suit under

the doctrines of official immunity, derivative sovereign immunity, impact-on-the-

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No. 06-20874

federal-treasury immunity under Land v. Dollar, 330 U.S. 731 (1947), and the

Defense Production Act of 1950, 50 App. U.S.C. § 2061 et seq. KBR also re-urged

its Defense Base Act defense and argued for the first time that the Plaintiffs’

claims were nonjusticiable under the political question doctrine. However, only

in a third motion – a reply to the Plaintiffs’ opposition to KBR’s motion to

dismiss – did KBR begin to focus its argument on the difficulty of proving

causation without second-guessing military actions and decisions. The Plaintiffs

responded (in a six-page surreply) by arguing that only KBR’s actions needed to

be examined in order to determine direct and proximate cause. These motions

were filed only three weeks prior to the district court’s final order dismissing the

Plaintiffs’ claims under the political question doctrine.

Only after the district court’s final judgment has the broader array of

defenses been laid aside, permitting the parties to sharpen their appellate

arguments regarding the importance of the causation element in any political

question analysis of these claims. We regret that the district court did not

benefit in the first instance from these arguments, but we cannot ignore their

import on appeal. Invocation of the political question doctrine implicates the

district court’s jurisdiction. We are “duty-bound to examine the basis of subject

matter jurisdiction sua sponte, even on appeal.” Union Planters Bank Nat’l

Ass’n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004) (reversed on jurisdictional

challenge not raised until appellate reply brief). Our analysis has the benefit of

arguments not presented to the district judge, which because of the nature of the

issue does not invoke considerations of waiver that often would apply. We are

only seeking to determine, based on all that we may consider, whether there is

a plausible set of facts that supports the claim and would justify relief.

Twombly, 127 S.Ct. at 1965-66.

KBR argues that no determination as to causation can be made without

examining whether the Army fulfilled its contractual duty to provide force

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No. 06-20874

protection for the KBR convoys. Assuming that Plaintiffs could establish all

other elements of their claims, they must still demonstrate that the acts or

omissions of KBR – as opposed to those of the Army or Iraqi insurgents –

proximately caused their injuries. KBR has made clear that, were a trial to be

held, its defense would involve the alleged inadequacy of the Army’s intelligence

gathering, route selection and defensive response to the attacks that actually

occurred. In other words, KBR would make the case that Plaintiffs’ injuries

were not caused by KBR’s actions or inactions, but by the insurgents’ attack and

the Army’s failure to provide adequate protection of the convoy.

The Plaintiffs counter KBR’s argument by pointing to a familiar theory of

tort law that permits recovery even though another actor or cause intervenes to

be the direct cause of injury. See RESTATEMENT (SECOND) OF TORTS §§ 448-449

(1965); PROSSER AND KEETON ON THE LAW OF TORTS § 44, at 303-06 (W. Page

Keeton et. al., eds., 5th ed. 1987). According to the Restatement, “[i]f the

likelihood that a third person may act in a particular manner is the hazard or

one of the hazards which makes the actor negligent, such an act whether

innocent, negligent, intentionally tortious, or criminal does not prevent the actor

from being liable for harm caused thereby.” REST. (2D) TORTS § 449. Texas

courts have applied this theory of liability in previous cases. See Nixon v. Mr.

Prop. Mgmt., 690 S.W.2d 546, 549 (Tex. 1985); Kimbriel Produce Co. v. Mayo,

180 S.W.2d 504, 507 (Tex. Civ. App. 1944); see also Engle v. Dinehart, No. 99-

10087, 2000 WL 554942, **11-12 (5th Cir. April 19, 2000) (unpublished) (noting

that Texas courts have adopted the causation theory embodied in Sections 448

and 449 of the Restatement); cf. Sheridan v. United States, 487 U.S. 392, 398

(1988) (interpreting Federal Tort Claims Act) (“[I]n at least some situations the

fact that an injury was directly caused by an assault or battery will not preclude

liability against the Government for negligently allowing the assault to occur.”).

The comments to Section 449 elaborate on this theory of causation:

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The happening of the very event the likelihood of which makes the

actor’s conduct negligent and so subjects the actor to liability cannot

relieve him from liability. The duty to refrain from the act

committed or to do the act omitted is imposed to protect the other

from this very danger. To deny recovery because the other’s

exposure to the very risk from which it was the purpose of the duty

to protect him resulted in harm to him, would be to deprive the

other of all protection and to make the duty a nullity.

REST. (2D) TORTS § 449, cmt. b.8 Although couched in terms of negligence, this

theory of causation is applicable to intentional torts as well. Id. at § 870, cmt. l.

Applying the Restatement approach to the events leading to the Plaintiffs’

injuries and bearing in mind our standard for reviewing a Rule 12(b)(1)

dismissal, we cannot say that all plausible sets of facts that would permit the

recovery from KBR would also raise a political question. The Plaintiffs and KBR

were not strangers in Iraq, possessing no duties to each other. The Plaintiffs

were in Iraq as employees of KBR and, more particularly the Plaintiffs allege,

because KBR had drawn them there with explicit representations of safety.

Assuming, as we must, that Plaintiffs’ allegations are true, KBR might be seen

as making representations as to safety knowing it likely that the Government

could not provide the assured risk-free environment. Causation would exist if

KBR’s misrepresentations were a cause in fact of the Plaintiffs’ ultimate injuries.

See Nixon, 690 S.W.2d at 549 (“Cause in fact denotes that the negligent act or

omission was a substantial factor in bringing about the injury and without which

no harm would have been incurred.”).

Under this theory of causation, the district court may be able to resolve the

Plaintiffs’ fraud and negligence claims under Texas tort law without second-

guessing the acts and decisions of the Army. The court would be asked to

determine whether KBR made assurances to the Plaintiffs about conditions in

8

The Reporter’s Notes to Section 449 cite Jesse French Piano & Organ Co. v. Phelps,

105 S.W. 225 (Tex. Civ. App. 1907), as authority for the last two sentences of Comment b.

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No. 06-20874

Iraq which KBR knew or should have known were untrue. This determination

may very well require a review of the information KBR received from the Army,

understanding also when it was received. The question would be what KBR did

after receiving the information, not how ably the military gathered or

interpreted it. The Plaintiffs do not allege that the Army guaranteed their

safety; they allege KBR did. Therefore, the court may not have to inquire into

the adequacy of the Army’s intelligence and planning to determine whether,

based on the information it possessed, KBR made misrepresentations or

breached a duty to its employees.

For example, the Plaintiffs might prove that, based on the intelligence

provided to KBR by the military and collected by KBR’s own employees, that

KBR knew or should have known at the time that it was recruiting the Plaintiffs

to work for KBR in Iraq that the situation was likely to be so hostile that KBR

could not reasonably believe that its employees would be “100% safe.” Similarly,

later in Iraq when the April 2004 convoys were about to roll out, KBR might be

shown to have known of the likelihood of danger and that KBR had assumed a

duty to its employees not to proceed in such circumstances. The evidence may

instead reveal that, based on the information available to KBR, it did not make

any fraudulent misrepresentations or that it did not have any duty to the

Plaintiffs that was breached. Under either scenario, the cases might be triable

without raising a political question because the court could assess KBR’s liability

by simply being aware of the information the military provided to KBR, not

second-guessing that information.

Proving KBR’s negligent breach of a duty in Iraq not to allow a convoy to

proceed if conditions were too dangerous will involve rather different evidence

than would proof of misrepresentations made during hiring or later about safety.

Though the causation analysis applies to both issues, at some point the political

question analysis between the two will likely diverge. The Plaintiffs’ negligence

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No. 06-20874

allegations move precariously close to implicating the political question doctrine,

and further factual development very well may demonstrate that the claims are

barred. However, like the fraud claims, we cannot say at this point that

negligence claims necessarily implicate the political question doctrine.

Distinguishable from political question concerns is the fact that a trial

might require the use of classified information. As the district court in this case

has already demonstrated, federal courts are capable of evaluating sensitive or

privileged information in camera and providing other needed protections.

3. Cases relied on by the District Court

In reaching its conclusion that Plaintiffs’ claims were barred by the

political question doctrine, the district court relied on two other district court

opinions that barred tort suits against private contractors operating in a war

zone. See Smith v. Halliburton, No. 4:06-cv-00462, 2006 WL 2521326 (S.D. Tex.

Aug. 30, 2006) (unpublished); Whitaker v. Kellogg Brown & Root, 444 F. Supp.

2d 1277 (M.D. Ga. 2006).9 Among the distinctions we find significant, in Smith

the injuries occurred inside a military base in Iraq after a suicide bomber

penetrated security checkpoints operated solely by the military. Smith, 2006

WL 2521326, at **4-6. Whitaker involved a claim by an American soldier

against private contractors whom he was ordered to escort in Iraq. 444 F. Supp.

2d at 1279, 1281 n.4.10 There are other recent precedents that find tort claims

against civilian contractors performing support services in a war zone do not

necessarily raise nonjusticiable political questions. See McMahon, 502 F.3d at

1357-65; Carmichael v. Kellogg, Brown & Root Servs., 450 F. Supp. 2d 1373,

9

These decisions were not appealed.

10

Of course, the political branches have long-provided “simple, certain and uniform

compensation” for members of the armed forces who suffer service-related injuries. See United

States v. Johnson, 481 U.S. 681, 688-90 (1987) (citing the Veterans’ Benefits Act, codified as

amended at 38 U.S.C. § 301 et. seq).

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No. 06-20874

1374-76 (N.D. Ga. 2006); Potts v. Dyncorp Int’l, LLC, 465 F. Supp. 2d 1245, 1248-

54 (M.D. Ala. 2006); cf. Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 15-16 (D.D.C.

2005) (“An action for damages arising from the acts of private contractors and

not seeking injunctive relief does not involve the courts in ‘overseeing the

conduct of foreign policy or the use and disposition of military power.’”) (quoting

Luftig v. McNamara, 373 F.2d 664, 666 (D.C. Cir. 1967)).

In summary, different cases involving different claims require their own

discriminating inquiry under Baker.

III. CONCLUSION

We recognize the difficulty presented by cases that arise at least in part

in a war zone. There are constitutional as well as practical considerations that

may prevent judicial resolution. It appears, though, that these tort-based claims

of civilian employees against their civilian employers can be separated from the

political questions that loom so large in the background.

The district court already has exhibited a willingness to make a

discriminating inquiry into the facts and applicable legal standards. This court

on appeal has had the advantage not available below of the parties’ sharpened

focus on the legal requirements of the torts on which these claims are based.

That focus has revealed that it may be possible to resolve the claims without

needing to make a constitutionally impermissible review of wartime decision-

making. It is conceivable that further development of the facts on remand will

again send this case toward the political question barrier. Permitting this

matter to proceed now does not preclude the possibility that the district court

will again need to decide whether a political question inextricably arises in this

suit. The litigation is not yet there, if it ever will be.

REVERSED and REMANDED for proceedings consistent with this

opinion.

28