holding the direct control factor did not implicate the political question doctrine because the explicit terms of the LOGCAP Statement of Work made KBR responsible for the physical safety of workers and servicemembers that might come into contact with the hazards presented by its electrical work
How later courts described this case
- holding the direct control factor did not implicate the political question doctrine because the explicit terms of the LOGCAP Statement of Work made KBR responsible for the physical safety of workers and servicemembers that might come into contact with the hazards presented by its electrical work
- concluding that contributory negligence defense would “invariably require the Court to decide whether the Marines made a reasonable decision,” and therefore raised a political question (internal quotation marks and ellipsis omitted)
- holding that a nonjusticiable issue is introduced when contributory negligence is based on the plaintiffs disregard of an earlier military decision
- affirming ruling that negligence claim was nonjusticiable under the political question doctrine and vacating as moot accompanying ruling that claim was preempted by the FTCA combatant activities exception
Written by the judges who cited it.
The opinion
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. Halliburton Corp., 529 F.3d 548, 563 (5th Cir.2008), I am not convinced that the political question doctrine applies in this ease. See also McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1365 (11th Cir.2007) (same). I concur in the judgment, 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, 658 F.3d 413 (4th Cir.2011) and Al-Quraishi v. L-3 Services, Inc., 657 F.3d 201 (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 contractor 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, 658 F.3d at 420 . “Combatant 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.