Amicus Curiae Brief — Midwest Air Traffic Control Service, Inc., Petitioner v. Jessica T. Badilla, et al.

No. 21-867

In The

MIDWEST AIR TRAFFIC CONTROL SERVICE, INC.,

Petitioner,

v.

JESSICA T. BADILLA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE THE CHAMBER OF

COMMERCE OF THE UNITED STATES OF

AMERICA, AND BRIEF OF AMICUS CURIAE IN

SUPPORT OF PETITIONER

Stephanie A. Maloney

Tyler S. Badgley

U.S. CHAMBER LITIGATION

CENTER

1615 H Street, NW

Washington, D.C. 20062

(202) 463-5337

Pratik A. Shah

Counsel of Record

AKIN GUMP STRAUSS

HAUER & FELD LLP

2001 K Street, NW

Washington, D.C. 20006

(202) 887-4000

pshah@akingump.com

Aileen M. McGrath

AKIN GUMP STRAUSS

HAUER & FELD LLP

580 California Street,

Suite 1500

San Francisco, CA 94104

Counsel for Amicus Curiae

i

MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE THE CHAMBER OF

COMMERCE OF THE UNITED STATES OF

AMERICA

This case presents an issue of considerable

importance, resolution of which will impact the publicprivate partnerships that support our Nation’s

military, diplomatic, humanitarian, and peacemaking

efforts abroad. The Chamber of Commerce of the

United States of America (“Chamber”) is particularly

well-suited to provide additional insight into the broad

implications of the decision below for businesses

participating in these important partnerships.

The Chamber timely notified counsel of record for

both parties that it intended to submit the attached

brief more than 10 days prior to filing. Counsel for

petitioner consented to the filing of this brief. Counsel

for respondent declined to consent to this filing

(without explanation).

Therefore, pursuant to

Supreme Court Rule 37.2, the Chamber respectfully

moves this Court for leave to file the accompanying

brief of amicus curiae in support of petitioner. No

counsel for any party authored this accompanying

brief in whole or in part and no entity or person, aside

from amicus curiae, its members, or its counsel, made

any monetary contribution intended to fund the

preparation or submission of the brief.

As the world’s largest business federation, the

Chamber is well-positioned to address the thorny

problems that arise when domestic state tort law is

applied to American businesses operating overseas,

including businesses working as contractors for the

ii

federal government. Those problems have multiplied

in recent years as courts have, to varying degrees,

allowed state-law challenges against contractors

operating overseas—including those supporting the

Armed Forces—to proceed in federal court. Applying

state tort law to overseas conduct imposes various

uncertainties and attendant costs on businesses

operating overseas, and thus diminishes the pool of

businesses willing to contract with the federal

government abroad. Ultimately the burden will fall on

American taxpayers (who will absorb the resulting

costs) and the developing world more generally (which

will be deprived of the benefits public-private

partnerships provide). The decision below—and the

others applying state tort law to claims against federal

contractors—exacerbates this dangerous trend by

making it more difficult for businesses operating

overseas to assess their risks from state-law tort suits.

The Chamber offers its understanding of the vast

scope of public-private partnerships involving the

federal government and business interests abroad, as

well as the nature and extent of the costs imposed

when state tort law is applied to this overseas conduct,

to help explain why the question presented here

warrants this Court’s review. See Pet. 22-26. Because

the proposed brief will aid this Court’s consideration

of the petition, the Chamber respectfully requests that

the Court grant leave to file the attached brief urging

the Court to grant the petition.

iii

Respectfully submitted.

Stephanie A. Maloney

Tyler S. Badgley

U.S. CHAMBER LITIGATION

CENTER

Pratik A. Shah

Counsel of Record

Aileen M. McGrath

AKIN GUMP STRAUSS

HAUER & FELD LLP

iv

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE............................. 1

INTRODUCTION

AND

SUMMARY

OF

ARGUMENT .......................................................... 2

ARGUMENT ................................................................ 5

I. THE FEDERAL GOVERNMENT RELIES

HEAVILY ON AMERICAN CONTRACTORS

AND BUSINESSES TO ADVANCE ITS

INTERESTS OVERSEAS. ..................................... 5

A. Military Combat Support ................................. 5

B. Fragile Nation Support And Post-Conflict

Reconstruction .................................................. 7

C. Development And Disaster Relief .................... 9

D. Diplomatic Security ........................................ 11

E. Intelligence Gathering, Counterterrorism

Training, And Narcotics Eradication ............. 12

II. EXTRATERRITORIAL APPLICATION OF

STATE TORT LAW IMPOSES SERIOUS

COSTS ON U.S. BUSINESSES AND

GOVERNMENT INTERESTS. ............................ 13

A. The Second Circuit’s Decision Further

Opens The Door To State Tort Suits Against

Government

Contractors

Operating

Overseas. ......................................................... 14

B. State Tort Liability Creates Enormous

Uncertainty For American Businesses

Operating Overseas. ....................................... 16

C. State Tort Liability Will Deter Some

American Contractors And Lead Others To

Demand Higher Fees. ..................................... 21

v

D. State Tort Liability Undermines Vital

Government Operations And Impinges On

Foreign Policy. ................................................ 24

CONCLUSION .......................................................... 26

vi

TABLE OF AUTHORITIES

CASES:

Abdullahi v. Pfizer, Inc.,

562 F.3d 163 (2d Cir. 2009)............................... 15

Al Shimari v. CACI Int’l, Inc.,

679 F.3d 205 (4th Cir. 2012) ..................... passim

American Ins. Ass’n v. Garamendi,

539 U.S. 396 (2003) ........................................... 26

Atlantic Marine Constr. Co. v. U.S. Dist.

Court for W. Dist. of Tex.,

571 U.S. 49 (2013) ............................................. 18

Bixby v. KBR, Inc.,

603 F. App’x 605 (9th Cir. 2015) ....................... 20

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) ........................................... 23

Cloyd v. KBR, Inc.,

536 F. Supp. 3d 113 (S.D. Tex. 2021) ........... 15, 9

--- F. Supp. 3d ---, 2021 WL 5494685

(S.D. Tex. 2021) ................................................. 19

Crosby v. National Foreign Trade Council,

530 U.S. 363 (2000) ........................................... 26

Doe v. Exxon Mobil Corp.,

654 F.3d 11 (D.C. Cir. 2011) ............................. 15

vii

Filarsky v. Delia,

566 U.S. 377 (2012) ............................... 21, 22, 24

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ........................................... 25

Harris v. Kellogg Brown & Root Servs., Inc.,

878 F. Supp. 2d 543 (W.D. Pa. 2012) ................ 25

724 F.3d 458 (3d Cir. 2013)......................... 18, 25

151 F. Supp. 3d 600 (W.D. Pa. 2015) ................ 18

Hencely v. Fluor Corp.,

--- F. Supp. 3d ---, 2021 WL 3568397

(D.S.C. 2021)...................................................... 15

In re KBR Inc., Burn Pit Litig.,

268 F. Supp. 3d 778 (D. Md. 2017) ............. 19, 25

893 F.3d 241 (4th Cir. 2018) ............................. 20

Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108 (2013) ........................................... 14

Loquasto v. Fluor Corp.,

512 F. Supp. 3d 728 (N.D. Tex. 2021)............... 16

Nestlé USA, Inc. v. Doe,

141 S. Ct. 1931 (2021) ................................. 14, 24

Norat v. Fluor Intercontinental, Inc.,

No. 6:16-cv-00603-BHH, 2018 WL

1382666 (D.S.C. Mar. 19, 2018) ........................ 16

viii

Presbyterian Church of Sudan v. Talisman

Energy, Inc.,

582 F.3d 244 (2d Cir. 2009)............................... 21

562 U.S. 946 (2010) ........................................... 21

Saleh v. Titan Corp.,

580 F.3d 1 (D.C. Cir. 2009) ................... 22, 23, 24

Stencel Aero Eng’g Corp. v. United States,

431 U.S. 666 (1977) ........................................... 25

Zschernig v. Miller,

389 U.S. 429 (1968) ........................................... 26

CONSTITUTION:

U.S. CONST.

art. I, § 8, cls. 1, 11-15 ....................................... 25

art. I, § 10 ........................................................ 25

art. II, § 2, cls. 1-2 ............................................. 25

Other Authorities:

Chandrasekaran, Rajiv & Scott Higham,

Access to Afghan Projects to Be Lost,

Wash. Post, Oct. 27, 2013 ................................... 9

Counternarcotics Contracts in Latin

America: Hearing Before the Ad Hoc

Subcomm. On Contracting Oversight of

the S. Comm. on Homeland Security and

Governmental Affairs, 111th Cong.

(2010) ................................................................. 13

ix

Crawford, Jamie, For Contractors Who Stay,

It “Is Not Going To Be Easy”; Thousands

Left in Iraq Will Navigate Complex

Scenario, Chi. Trib., Oct. 23, 2011...................... 9

Detsch, Jack, Report: Departure of Private

Contractors Was a Turning Point in

Afghan Military’s Collapse, Foreign

Policy (Aug. 16, 2021)........................................ 19

Florey, Katherine, State Courts, State

Territory, State Power: Reflections on the

Extraterritoriality Principle in Choice of

Law and Legislation, 84 Notre Dame L.

Rev. 1057 (2009) .......................................... 17, 20

Florey, Katherine, State Law, U.S. Power,

Foreign Disputes: Understanding the

Extraterritorial Effects of State Law in

the Wake of Morrison v. National

Australia Bank, 92 B.U. L. Rev. 535

(2012) ................................................................. 15

Goldsmith, Jack L. & Alan O. Sykes, Lex

Loci Delictus and Global Economic

Welfare: Spinozzi v. ITT Sheraton Corp.,

120 Harv. L. Rev. 1137 (2007) .......................... 20

Gordon, Michael R., Civilians to Take U.S.

Lead After Military Leaves Iraq, N.Y.

Times, Aug. 19, 2010 ........................................... 9

x

Kendall, Brent, Contractor’s Torture

Settlement a Milestone; Payment of $5.28

Million to Resolve Abuse Claims at Abu

Ghraib in Iraq Underscores Legal Risks

for Firms in War Zones, Wall St. J., Jan.

10, 2013.............................................................. 17

Kobrin, Stephen J., Oil and Politics:

Talisman Energy and Sudan, 36 N.Y.U.

J. Int’l L. & Pol. 425 (2004) ............................... 21

Learning from Iraq: A Final Report from the

Special Inspector General for Iraq

Reconstruction: Hearing Before the

Subcomm. On the Middle East and

North Africa of the H. Foreign Affairs

Comm., 113th Cong. (2013) .............................. 10

Meyer, Jeffrey A., Extraterritorial Common

Law: Does the Common Law Apply

Abroad? 102 Geo. L.J. 301 (2014) ..................... 15

Morgenstern, Emily M., Cong. Rsch. Serv.

IF10261, U.S. Agency for International

Development: An Overview (Aug. 14,

2020) .................................................................. 10

OPIC, Annual Report on Development

Impact (Oct. 2018) ............................................ 11

Peters, Heidi M., Cong. Rsch. Serv. IF10600,

Defense Primer: Department of Defense

Contractors (Feb. 3, 2021) ................................... 6

xi

Quinn, Andrew, Security Contractors Filling

Big Void; State Department Doubling the

Ranks to Protect Civilians, Chi. Trib.,

Aug. 22, 2010 ....................................................... 9

Schwartz, Moshe & Jennifer Church, Cong.

Rsch. Serv. R43074, Department of

Defense’s Use of Contractors to Support

Military Operations: Background,

Analysis, and Issues for Congress (2013) ....... 6, 7

Sheridan, Mary Beth & Dan Zak, In Iraq,

It’s Crunch Time for the State

Department, Wash. Post, Oct. 9, 2011 ................ 9

Sykes, Alan O., Corporate Liability for

Extraterritorial Torts Under the Alien

Tort Statute and Beyond: An Economic

Analysis, 100 Geo. L.J. 2161 (2012) ........... 19, 23

Tarnoff, Curt, Cong. Rsch. Serv. R44117,

U.S. Agency for International

Development (USAID): Background,

Operations, and Issues (2015) ........................... 10

Tiersky, Alex & Susan B. Epstein, Cong.

Rsch. Serv. R42834, Securing U.S.

Diplomatic Facilities and Personnel

Abroad: Background and Policy Issues

(2014) ................................................................. 12

xii

U.S. Dep’t of Commerce, The U.S. Litigation

Environment and Foreign Direct

Investment, Supporting U.S.

Competitiveness by Reducing Legal Costs

and Uncertainty (2008) ..................................... 22

U.S. Dep’t of Defense, Contractor Support of

U.S. Operations in the USCENTCOM

Area of Responsibility (Apr. 2021) ...................... 8

U.S. Dep’t of Defense, Quadrennial Defense

Review Report (Feb. 6, 2006) .............................. 7

U.S. Dep’t of State, United States Strategy to

Prevent Conflict and Promote Stability

(2020) ............................................................... 7, 8

U.S. Gov’t Accountability Off., GAO-03-946,

Foreign Assistance: Strategic Workforce

Planning Can Help USAID Address

Current and Future Challenges (2003) .............. 9

USAID, Private-Sector Engagement Policy ........... 11

USAID’s COVID-19 Response ................................ 10

Whitlock, Craig, Contractors Run U.S.

Spying Missions in Africa, Wash. Post,

June 14, 2012 .................................................... 12

Whitlock, Craig, U.S. Trains African

Soldiers for Somali Mission, Wash. Post,

May 13, 2012 ..................................................... 12

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States

of America (“Chamber”) respectfully submits this brief

as amicus curiae in support of the petition.

The Chamber is the world’s largest business

federation.

It represents approximately 300,000

direct members and indirectly represents the interests

of more than three million companies and professional

organizations of every size, in every industry sector,

and from every region of the country. An important

function of the Chamber is to represent its members’

interests in matters before Congress, the Executive

Branch, and the courts, including this Court. To that

end, the Chamber regularly files amicus curiae briefs

in cases that raise issues of concern to the nation’s

business community, such as the foreign application of

domestic law. See, e.g., Nestlé USA, Inc. v. Doe, No.

19-416; Kellogg Brown & Root Servs., Inc. v. Harris,

No. 13-817; Kiobel v. Royal Dutch Petroleum Co., No.

10-1491.

The Chamber has a direct and substantial

interest in the issues presented in this case and in the

appropriate application of state tort law to overseas

business conduct more broadly. The accident in this

case was profoundly tragic, and the Chamber takes no

position on the factual issues. The Chamber addresses

only whether it is appropriate for courts to apply

1 Pursuant to Supreme Court Rule 37.6, amicus curiae

states that no counsel for any party authored this brief in whole

or in part and no entity or person, aside from amicus curiae, its

members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

(1)

2

domestic state tort law to the operations of federal

contractors working outside the United States.

Applying state tort law to overseas operations poses

thorny problems in the military context and other

circumstances where important federal interests are

also implicated.

The issue has become increasingly important in

recent years, as courts have allowed state-law

challenges against contractors operating overseas to

proceed in federal court notwithstanding the Federal

Tort Claims Act’s (“FTCA”) combatant-activities

exception. The Second Circuit’s ruling here is part of

this pernicious trend, which will continue unabated

absent this Court’s intervention. Claims in these

cases invariably implicate issues of U.S. military and

foreign policy in conflict, post-conflict, and

development areas throughout the world. This brief

describes the vast scope of public-private partnerships

involving the federal government and business

interests abroad, as well as the threats those

relationships face from the overseas application of

state tort law.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The federal government has long relied heavily

on private contractors to carry out military and

civilian operations overseas. For instance, contractors

have provided critical support to the Armed Forces for

construction, transport, and other tasks historically

assigned to service members. Contractors also have

played a key role in efforts such as post-war

reconstruction, economic development, disaster relief,

3

diplomatic security, intelligence operations, and

counterterrorism initiatives.

Plaintiffs wishing to sue American companies

operating overseas have turned increasingly to statelaw claims in the wake of this Court’s decisions

limiting the application of federal law to overseas

conduct. Although plaintiffs have long paired Alien

Tort Statute (“ATS”) claims together with state-law

claims, the Court has curtailed the application of the

ATS to injuries occurring overseas. At the same time,

federal courts of appeals have opened the courthouse

door to state-law claims against federal government

contractors operating overseas by distorting the

preemption standard under the FTCA’s combatantactivities exception. Each circuit to address the issue

has articulated a different test for analyzing FTCA

preemption in this context.

See Pet. 14-19.

Nevertheless, each standard is “both imprecise and too

narrow,” id. at 20 (quoting U.S. Br. 14, Kellogg Brown

& Root Servs., Inc. v. Harris, No. 13-817), and has

improperly allowed many suits challenging overseas

activity to go forward, see Pet. 15, 17-18.

The Second Circuit’s decision below opens that

door even further, and imprudently encourages the

pursuit of state-law tort claims for the overseas

conduct of federal contractors. Those claims have

proliferated in recent years, as the disarray in the

circuits has persisted without this Court’s

intervention.

The result poses a significant threat to the federal

government’s critical ability to partner with private

contractors. Federal courts are saddled with the

4

burden of deciding which of fifty different state-law

regimes governs in a given case and then applying that

law to overseas conduct. That choice-of-law issue

creates enormous uncertainty for American

businesses seeking to bid on overseas contracts

because they cannot intelligently assess the nature or

extent of potential liability. And the scope of that

liability, and any related discovery, can be substantial.

The specter of massive liability and sensitive discovery

(often concerning events occurring in remote areas

overseas) places enormous settlement pressure on

these contractors.

That pressure and uncertainty inevitably will

continue to raise the cost of contracting with the

federal government abroad and likely deter many

businesses (particularly smaller companies) from

entering into such contracts at all. As a result, the

federal government faces a reduced pool of candidates

and higher rates to cover any remaining contractors’

increased insurance premiums and potential liability

costs.

In addition to limiting American business

opportunities and ultimately costing American

taxpayers, application of state law to overseas conduct

risks undue and unwarranted interference with

critical government projects and impingement on the

Nation’s foreign affairs prerogatives. Plaintiffs can be

expected to file state tort lawsuits against not only

businesses partnering with the U.S. military, but also

companies

working

to

promote

diplomatic,

humanitarian,

peacemaking,

and

economic

development opportunities overseas. Such lawsuits

risk frustrating the federal government’s interest in

5

providing aid and support abroad, particularly to

developing nations.

Federal contractors and businesses operating

abroad further the Nation’s interests in the world’s

most fragile and high-risk regions. Those interests are

at their apex when (as in this case) those companies

partner with the federal government in armed conflict,

peacemaking, and diplomatic efforts. State tort law is

an ill fit for disputes that arise in those circumstances.

These concerns demand the Court’s prompt attention.

ARGUMENT

I.

THE FEDERAL GOVERNMENT RELIES

HEAVILY ON AMERICAN CONTRACTORS

AND BUSINESSES TO ADVANCE ITS

INTERESTS OVERSEAS.

To appreciate the breadth and magnitude of the

consequences flowing from application of state tort law

to overseas conduct, it is helpful first to survey the

many challenging contexts in which American

contractors and businesses partner to further

American

governmental

interests.

Those

partnerships arise in a number of critical areas,

ranging from battlefield combat support and

diplomatic security to peacemaking, post-conflict

reconstruction, and economic development efforts.

A.

Military Combat Support

Throughout its history, the U.S. Department of

Defense (“DOD”) has depended on civilian contractors

to support overseas military operations. That reliance

increased sharply in the wake of the Cold War, as the

cessation of the draft combined with defense budget

6

cuts resulted in a substantial reduction in the size of

the U.S. Armed Forces, leading the U.S. military to

turn to private contractors. The result has been that

contractors now perform many combat duties

previously assigned to service members, including

constructing and maintaining facilities, transporting

supplies and personnel, providing life support to

service members on the battlefield, and executing

numerous other tasks in active war zones. Using

contractors provides DOD with many benefits,

including: “freeing up uniformed personnel to focus on

military-specific activities; providing supplemental

expertise in specialized fields, such as linguistics or

weapon systems maintenance; and providing surge

capabilit[ies] to quickly deliver critical support

functions.”2

The recent conflicts in Afghanistan and Iraq, and

the global war on terror, illustrate the central role that

contractors have long played in supporting U.S. troops

in areas of armed conflict. Contractors made up 50

percent or more of the total DOD presence in

Afghanistan and Iraq.3 For instance, reports showed

that over 100,000 DOD contractor personnel (in

addition to over 65,000 U.S. troops) were present in

2 See Heidi M. Peters, Cong. Rsch. Serv. IF10600, Defense

Primer: Department of Defense Contractors 1 (Feb. 3, 2021)

(“Defense Primer”); Moshe Schwartz & Jennifer Church, Cong.

Rsch. Serv. R43074, Department of Defense’s Use of Contractors

to Support Military Operations: Background, Analysis, and Issues

for Congress 1 (2013) (“DOD’s Use of Contractors to Support

Military Operations”).

3 Defense Primer, supra note 2 at 1.

7

Afghanistan as of March 2013, and DOD expended

over $160 billion for contractual services performed in

Iraq and Afghanistan between 2007 and 2012.4

There is no reason to expect DOD’s use of

contractors to abate in future armed conflicts. Defense

officials and analysts believe that the U.S. military

cannot function effectively on the battlefield without

support from private contractors. 5

DOD has

recognized that private contractors are functionally

integrated into—and an essential component of—the

total military force.6

B.

Fragile Nation Support

Conflict Reconstruction

And

Post-

Active military operations are only one

component of our Nation’s foreign policy mission. As

part of its efforts to promote freedom and democracy

around the globe, the federal government works to

“strengthen fragile states where state weakness or

failure would magnify threats to the American

homeland and empower reform-minded governments,

people, and civil society.” 7 Over the past several

decades, the United States has helped partner

countries—including those recovering from or at risk

of conflict—to become more self-reliant and

4 DOD’s Use of Contractors to Support Military Operations,

supra note 2 at 1-2.

5 Id.

6 See U.S. Dep’t of Defense, Quadrennial Defense Review

Report 75 (Feb. 6, 2006).

7 U.S. Dep’t of State, United States Strategy to Prevent

Conflict and Promote Stability 1, 4, 7, 14 (2020).

8

democratic.

U.S. Department of State (“State

Department”) personnel step in to help such countries

“build durable mechanisms to resolve conflicts,

undertake difficult reforms where needed, enhance

social cohesion, build critical institutions, *** and

mobilize domestic resources that can enable lasting

peace, stability, and ultimately prosperity.” 8 To

achieve those objectives, the State Department relies

heavily on civilian contractors and other forms of

public-private partnerships.9

The post-conflict reconstruction efforts in

Afghanistan and Iraq illustrate how these

partnerships operate in practice. Even as active

combat operations diminished, military contractors

continued to play a significant role focusing on

reconstruction and rebuilding in those regions. As

recently as the second quarter of FY2021, over 21,000

contractor personnel remained in Afghanistan, Iraq,

and Syria, performing a range of functions including

security,

IT

and

communications

support,

construction, social services, and medical care.10 The

State Department has overseen tens of thousands of

private contractors performing billions of dollars of

work—including

constructing

and

restoring

infrastructure, developing new justice systems, and

8 Id. at 7 (internal quotation marks omitted).

9 Id. at 14.

U.S. Dep’t of Defense, Contractor Support of U.S.

Operations in the USCENTCOM Area of Responsibility 1 (Apr.

2021).

10

9

protecting U.S. diplomatic officials.11 As many as 80

percent of State Department personnel performing

these on-the-ground functions in Afghanistan and Iraq

have been private contractors.12

C.

Development And Disaster Relief

“Humanitarian and economic development

assistance is an integral part of U.S. global security

strategy.” 13 The U.S. Agency for International

Development (“USAID”), which operates under the

authority of the State Department, “is the lead U.S.

Agency for administering humanitarian and economic

assistance to about 160 countries.” 14 USAID is

responsible for billions of dollars of relief and

reconstruction efforts in response to natural and manmade disasters. For instance, USAID has been a

leader in the global fight against the COVID-19

pandemic, and has directed more than $9 billion in

11 See generally Michael R. Gordon, Civilians to Take U.S.

Lead After Military Leaves Iraq, N.Y. Times, Aug. 19, 2010, at A1;

Jamie Crawford, For Contractors Who Stay, It “Is Not Going To

Be Easy”; Thousands Left in Iraq Will Navigate Complex

Scenario, Chi. Trib., Oct. 23, 2011, at 27; Andrew Quinn, Security

Contractors Filling Big Void; State Department Doubling the

Ranks to Protect Civilians, Chi. Trib., Aug. 22, 2010, at 23; Rajiv

Chandrasekaran & Scott Higham, Access to Afghan Projects to Be

Lost, Wash. Post, Oct. 27, 2013, at A01.

12 Mary Beth Sheridan & Dan Zak, In Iraq, It’s Crunch

Time for the State Department, Wash. Post, Oct. 9, 2011, at A12.

13 U.S. Gov’t Accountability Off., GAO-03-946, Foreign

Assistance: Strategic Workforce Planning Can Help USAID

Address Current and Future Challenges 1 (2003).

14 Id. at 4; see also id. at 2-3, 6-11, 21.

10

pandemic-related assistance to

countries.15

more

than 120

Since its inception in 1962, USAID’s direct-hire

staff has decreased dramatically while the number of

countries with USAID programs has more than

doubled.16 As a result, USAID increasingly has had to

rely on private contractors, who perform about 80

percent of USAID’s overseas projects.17

USAID partners not only with federal contractors

but also with other private companies to implement

the agency’s mission overseas. USAID proactively

solicits private-sector involvement in its disaster relief

and development efforts through a program called the

Global Development Alliance. Through that program,

USAID has engaged in over 2,300 private sector

alliances, leveraging more than $43 billion in public

and private funds to support countries in achieving

USAID’s COVID-19 Response, https://www.usaid.gov/

coronavirus (last visited Jan. 6, 2022).

16 See Curt Tarnoff, Cong. Rsch. Serv. R44117, U.S. Agency

for

International

Development

(USAID):

Background,

Operations, and Issues 1, 7 (2015); see also Emily M.

Morgenstern, Cong. Rsch. Serv. IF10261, U.S. Agency for

International Development: An Overview 2 (Aug. 14, 2020).

17 See Learning from Iraq: A Final Report from the Special

Inspector General for Iraq Reconstruction: Hearing Before the

Subcomm. On the Middle East and North Africa of the H. Foreign

Affairs Comm., 113th Cong. 25-26, 43 (2013).

15

11

“sustained

outcomes.”18

development

and

humanitarian

In much the same way, the Overseas Private

Investment Corporation (“OPIC”), the federal

government’s international development finance

institution, offers loans and other forms of financial

assistance to private U.S. companies to encourage

them to engage in development efforts abroad (e.g.,

helping Ukraine construct a nuclear storage facility,

or supporting financial institutions in India and Costa

Rica to improve women’s access to capital). 19

Operating under the policy guidance of the Secretary

of State, OPIC administers a portfolio that exceeds $10

billion, with projects in dozens of developing and postconflict nations.20

D.

Diplomatic Security

The United States maintains approximately 285

diplomatic facilities, including embassies and

consulates, in both friendly and high-threat

environments worldwide. The State Department

Bureau for Diplomatic Security (“Diplomatic Security

Bureau”) has primary responsibility for safeguarding

those facilities and the American diplomatic personnel

18 USAID, Private-Sector Engagement Policy 5, available at

https://www.usaid.gov/sites/default/files/documents/1865/usaid_

psepolicy_final.pdf (last updated Mar. 16, 2021).

19 OPIC, Annual Report on Development Impact 13, 15

(Oct. 2018).

20 Id. at 11.

12

deployed there (along with their accompanying family

members).21

The Diplomatic Security Bureau’s workload has

continued to expand, in part due to the increasing

frequency of attacks on overseas posts.22 Although the

Bureau has doubled the size of its direct-hire

workforce, it still requires substantial contractor

support

to

meet

its

diplomatic

security

responsibilities. Approximately 90 percent of the

Bureau’s 34,000 employees are private contractors.23

E.

Intelligence Gathering,

Counterterrorism Training, And

Narcotics Eradication

Private contractors assist the United States in

pursuing its interests abroad in additional ways. In

Africa, for example, the U.S. military has outsourced

air reconnaissance operations to contractors. In past

missions, these contractors have supplied aircraft and

surveillance gear, as well as pilots and personnel, to

obtain electronic intelligence concerning terrorist

organizations.

Contractors have also trained

Ugandan recruits to fight terrorists in Somalia, and

have engaged in counternarcotics operations in South

America.24

21 See Alex Tiersky & Susan B. Epstein, Cong. Rsch. Serv.

R42834, Securing U.S. Diplomatic Facilities and Personnel

Abroad: Background and Policy Issues 1, 3-4, 7 (2014).

22 See id. at 1, 6, 13-15.

23 Id. at 4-5.

24 See Craig Whitlock, Contractors Run U.S. Spying

Missions in Africa, Wash. Post, June 14, 2012; Craig Whitlock,

13

*****

In short, American contractors and businesses

further U.S. national security interests, including

military, reconstruction, development, diplomacy, and

other foreign policy efforts, in broad and significant

ways. Private contractors have given the federal

government extraordinary flexibility, and have been

instrumental in bridging the gap between our Nation’s

expanding global efforts and the capacities of the

Armed Forces and federal civilian workforce.

II.

EXTRATERRITORIAL APPLICATION OF

STATE TORT LAW IMPOSES SERIOUS

COSTS ON U.S. BUSINESSES AND

GOVERNMENT INTERESTS.

The Second Circuit’s decision contributes to the

disarray and uncertainty regarding whether, when,

and where plaintiffs may bring state tort claims

against American businesses operating overseas. Pet.

19-21. Under the various imprecise and fact-intensive

standards the courts of appeals have adopted, these

businesses cannot predict what state law will apply to

their overseas conduct, whether and where they will

be subjected to burdensome discovery, and if they will

ultimately face significant monetary judgments. This

uncertainty makes it more difficult for important

public-private partnerships to form, and ultimately

American taxpayers bear the brunt of the resulting

U.S. Trains African Soldiers for Somali Mission, Wash. Post,

May 13, 2012, at A01; Counternarcotics Contracts in Latin

America: Hearing Before the Ad Hoc Subcomm. On Contracting

Oversight of the S. Comm. on Homeland Security and

Governmental Affairs, 111th Cong. 9, 64, 95-96, 99 (2010).

14

costs. Absent this Court’s intervention, the threat of

state-tort lawsuits against federal contractors—a real

threat, as the number of recent cases illustrates—will

continue to impair the Nation’s military, security, and

foreign policy interests.

A.

The Second Circuit’s Decision Further

Opens The Door To State Tort Suits

Against

Government

Contractors

Operating Overseas.

By deepening the circuit conflict regarding the

scope of FTCA preemption and further muddling the

applicable standard (Pet. 14-19), the Second Circuit’s

decision will open the door to a greater number of

state-law tort suits against American businesses

operating overseas.

State-law suits are increasingly attractive

vehicles for plaintiffs interested in suing American

businesses for their overseas conduct. This Court has

recently, and repeatedly, held that federal laws (like

the ATS) ordinarily do not apply in cases involving

overseas conduct. See Kiobel v. Royal Dutch Petroleum

Co., 569 U.S. 108, 124 (2013). Just last Term, the

Court confirmed that the ATS does not apply even

when overseas activity is connected to domestic

“operational decisions.” Nestlé USA, Inc. v. Doe, 141

S. Ct. 1931, 1937 (2021).

But as this Court has held such federal-law suits

targeting overseas conduct barred, the Second Circuit

(and other courts) have gradually expanded plaintiffs’

ability to bring state-law claims against American

businesses, including those operating abroad, despite

the preemptive language of the FTCA. Pet. 14-17.

15

Commentators predicted that plaintiffs would turn to

“state-court suits with foreign elements” to challenge

overseas activity. Katherine Florey, State Law, U.S.

Power, Foreign Disputes:

Understanding the

Extraterritorial Effects of State Law in the Wake of

Morrison v. National Australia Bank, 92 B.U. L. Rev.

535, 549, 550 (2012) (observing that plaintiffs are

likely to find state common-law actions more

“worthwhile” in light of federal extraterritoriality

restrictions and predicting an “unprecedented

number” of such suits); see Jeffrey A. Meyer,

Extraterritorial Common Law: Does the Common Law

Apply Abroad? 102 Geo. L.J. 301, 305-306 (2014)

(“[w]ith U.S. courts now presumptively barred from

applying *** federal tort statutes *** to conduct in

foreign countries, the focus in transnational tort cases

will soon turn to state common law tort claims”)

(footnote omitted).

Those predictions have come true. Pet. 14-19.

For over a decade, plaintiffs have alleged state-law

claims alongside federal-law claims for the same

conduct. See, e.g., Doe v. Exxon Mobil Corp., 654 F.3d

11, 15 (D.C. Cir. 2011); Abdullahi v. Pfizer, Inc., 562

F.3d 163, 172 (2d Cir. 2009). In the last few years

alone, district courts have considered a burgeoning

number of cases raising tort claims against federal

contractors for injuries arising out of sensitive

military operations. See, e.g., Cloyd v. KBR, Inc., 536

F. Supp. 3d 113, 117 (S.D. Tex. 2021) (suit arising out

of injuries from Iranian ballistic missile attack at a

U.S. Army base); Hencely v. Fluor Corp., --- F. Supp.

3d ---, 2021 WL 3568397, at *1 (D.S.C. 2021) (lawsuit

arising out of “an attack by a foreign enemy—a

16

Taliban operative—on a U.S. Military” base in

Afghanistan); Loquasto v. Fluor Corp., 512 F. Supp. 3d

728, 731 (N.D. Tex. 2021) (“personal-injury case

arising out of a suicide bombing *** at a United States

Military base in Afghanistan”); Norat v. Fluor

Intercontinental, Inc., No. 6:16-cv-00603-BHH, 2018

WL 1382666, at *1 (D.S.C. Mar. 19, 2018) (case arising

out of a motor vehicle accident at a U.S. military

airfield in Afghanistan).

As these cases illustrate, the winding down of

active military operations in Afghanistan and Iraq has

not translated to a decrease in cases challenging

federal contractors’ activities there. And such suits

will likely only continue to grow with the aid of

decisions (like the Second Circuit’s) making it easier

for plaintiffs to sue and more difficult for defendants

to invoke the combatant-activities exception. See Pet.

23-24.

B.

State Tort Liability Creates Enormous

Uncertainty For American Businesses

Operating Overseas.

The growing number of state-law tort suits

creates distinctive problems for American businesses

that work for or in tandem with federal agencies

(especially the U.S. military) abroad.

These

businesses face several uncertainties stemming from

state-law tort suits that combine to produce powerful

settlement pressure.

The prospect of enormous

liability, following suit in an unexpected forum, based

on state tort requirements that may be unknown until

years into the litigation, after unusually expensive

and burdensome discovery, will compel many

17

defendants to settle even meritless suits. This is not

an abstract concern: Commentators have attributed

war-zone tort-dispute settlements to the “significantly

muddled” state of the law. See Brent Kendall,

Contractor’s Torture Settlement a Milestone; Payment

of $5.28 Million to Resolve Abuse Claims at Abu

Ghraib in Iraq Underscores Legal Risks for Firms in

War Zones, Wall St. J., Jan. 10, 2013. The settlement

pressure is exacerbated by the gray areas the Second

Circuit’s fact-specific preemption analysis creates

(Pet. App. 33a), which make it more difficult for

companies to assess their litigation risk.

First, the prospect of state-law tort suits creates

uncertainty for businesses, including federal

contractors, seeking to ensure that their overseas

conduct conforms to law. Permitting “extraterritorial

application of different state tort regimes *** allows

for unlimited variation in the standard of care that is

applied to” these vital “public-private partnership[s]”

abroad. Al Shimari v. CACI Int’l, Inc., 679 F.3d 205,

238, 240 (4th Cir. 2012) (Wilkinson, J., dissenting).

And the standard of care is just one variable.

Businesses must also take into account, for instance,

the cognizability of claims for aiding and abetting and

conspiracy and the availability of punitive damages.

See id. at 229.

A business’s inability to predict ex ante which

state’s tort law will govern the conduct of its

employees “lead[s] to inconsistent standards being

applied and uncertainty on the part of actors who wish

to conform their conduct to the law.” Katherine

Florey, State Courts, State Territory, State Power:

Reflections on the Extraterritoriality Principle in

18

Choice of Law and Legislation, 84 Notre Dame L. Rev.

1057, 1064 (2009) (“Reflections”). Such inconsistency

and uncertainty affects the day-to-day operations of

American businesses working in partnership (or

considering partnership) with U.S. agencies abroad.

The Third Circuit’s decision in Harris v. Kellogg

Brown & Root Services, Inc., 724 F.3d 458 (3d Cir.

2013) well illustrates this problem. There, “[t]he

District Court ha[d] not yet determined if” the

defendant’s conduct would be subject to the law of its

principal place of business (Texas), the law of the

decedent’s former residence (Tennessee), or even the

law of the decedent’s estate administrators’ residence

(Pennsylvania). Id. at 469 n.10. As the court of

appeals recognized, the district court’s choice-of-law

decision would determine the standard of care and

scope of damages, and perhaps even whether the

claims could proceed at all. Id. at 478. But the choiceof-law question was not resolved until many years into

the litigation. Harris v. Kellogg, Brown & Root Servs.,

Inc., 151 F. Supp. 3d 600, 603-604 (W.D. Pa. 2015).

Instead of being able to make informed decisions at the

outset, businesses are placed in the untenable position

of facing unknown legal consequences for past

conduct, with no certainty as to the applicable law.

Second, businesses operating abroad face

uncertain—and potentially extraordinary—litigation

costs if haled into federal court on state-law tort

claims. Foreign tort cases are costly in part because

they are pressed half a world away from the locus of

the injury and from the relevant documents,

witnesses, and evidence. Cf. Atlantic Marine Constr.

Co. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49,

19

62-63 (2013) (access to proof, premises, witnesses, and

cost bear on appropriateness of forum).

Those

expenses are even higher in many suits against federal

contractors, as the countries where they work tend to

have “undeveloped legal system[s] that do[] not, or

cannot, cooperate with discovery[.]” Alan O. Sykes,

Corporate Liability for Extraterritorial Torts Under

the Alien Tort Statute and Beyond: An Economic

Analysis, 100 Geo. L.J. 2161, 2190 (2012). And

discovery is doubly burdensome in cases, like this one,

where documents and evidence pertain to battlefield

incidents and sensitive military decisionmaking, see

Pet. App. 3a-5a, and may be located in post-conflict

regions (like Afghanistan) where contractors are no

longer present, see Jack Detsch, Report: Departure of

Private Contractors Was a Turning Point in Afghan

Military’s Collapse, Foreign Policy (Aug. 16, 2021).

The fact-intensive approach exemplified by the

Second Circuit’s decision here compounds the costs,

turning on evidence regarding, inter alia, the U.S.

military’s specific involvement in the particular event

at issue. See Pet. App. 35a-37a. Costly discovery into

that relationship is all but certain, even into claims

that are eventually determined to be preempted.

Compare Cloyd, 536 F. Supp. 3d at 127 (denying

motion to dismiss lawsuit as preempted under FTCA

combatant-activities

exception

and

ordering

discovery), with Cloyd v. KBR, Inc., --- F. Supp. 3d ---,

2021 WL 5494685, at *6-*10 (S.D. Tex. 2021) (later

granting summary judgment on grounds of FTCA

preemption following discovery). Even supposedly

“limited” discovery into these threshold preemption

questions has proven to be “massive” in practice. In re

20

KBR Inc., Burn Pit Litig., 268 F. Supp. 3d 778, 787788 (D. Md. 2017), aff’d in part, vacated in part and

remanded by In re KBR, Inc., 893 F.3d 241 (4th Cir.

2018) (describing “limited” jurisdictional discovery,

which included “over 5.8 million pages of documents,

including more than 3 million pages of emails and

other electronic data” and “thirty-four depositions of

various witnesses *** including military personnel in

both the operational and contracting commands”).

Under that approach—which many circuits have

sanctioned, e.g., Pet. 13-20—the mere filing of a

lawsuit threatens a federal contractor with extensive

(and expensive) discovery.

Third, businesses must account for potential,

possibly astronomical, liability. Substantive tort law

and procedural rules in U.S. courts “produce much

larger recoveries” than could be obtained in foreign

courts. Jack L. Goldsmith & Alan O. Sykes, Lex Loci

Delictus and Global Economic Welfare: Spinozzi v. ITT

Sheraton Corp., 120 Harv. L. Rev. 1137, 1137 (2007).

Awards in cases against war-zone contractors

illustrate this reality. See Bixby v. KBR, Inc., 603 F.

App’x 605, 606 (9th Cir. 2015) (vacating $80 million

damages award in case against military contractor).

Projecting those potential costs can be difficult,

particularly when businesses have to consider

potential liability arising from “the tort regimes of all

fifty states.” Al Shimari, 679 F.3d at 234 (Wilkinson,

J., dissenting). Businesses must also consider the

prospect that “different jurisdictions [could] issue

inconsistent judgments,” leading to conflicting or

multiple liability. Florey, Reflections, 84 Notre Dame

L. Rev. at 1064.

21

C.

State Tort Liability Will Deter Some

American Contractors And Lead Others

To Demand Higher Fees.

Suits challenging overseas conduct deter

corporate investment abroad, thereby harming not

only businesses but also the countries where they

operate. See generally Amicus Curiae Br. of the

Chamber of Commerce of the United States of

America, Kiobel v. Royal Dutch Petroleum Co., No. 101491 (2013). For all the reasons discussed, American

contractors—particularly smaller businesses with

fewer resources to absorb the various layers of

uncertainty—may well hesitate to enter into the vital

partnerships that sustain U.S. interests abroad. See

Filarsky v. Delia, 566 U.S. 377, 390-391 (2012)

(recognizing that “private individuals [who] work in

close coordination with public employees[] and face

threatened legal action for the same conduct” will

“think twice before accepting a government

assignment”). Just as a domestic tort suit 25 helped

encourage Talisman Energy to stop doing business in

Sudan, see Stephen J. Kobrin, Oil and Politics:

Talisman Energy and Sudan, 36 N.Y.U. J. Int’l L. &

Pol. 425, 426 (2004), it would hardly be surprising if

federal “contractors *** prove reluctant to expose their

employees to litigation-prone combat situations,” post25 Plaintiffs effectively sought “to impose embargoes or

international sanctions through civil actions in United States

courts.” Presbyterian Church of Sudan v. Talisman Energy, Inc.,

582 F.3d 244, 261 (2d Cir. 2009) (plaintiffs’ ATS allegations

“serve[d] essentially as proxies for their contention that

[defendant business] should not have made any investment in the

Sudan”), cert. denied, 562 U.S. 946 (2010).

22

conflict zones, disaster relief efforts, and the like.

Saleh v. Titan Corp., 580 F.3d 1, 8 (D.C. Cir. 2009); see

Al Shimari, 679 F.3d at 238-239 (Wilkinson, J.,

dissenting) (faced with “extraterritorial application of

different state tort regimes,” “[c]ontractors can be

forgiven for not wanting to trust their employees to the

vagaries and caprice of individual verdicts and

trials[]”).

Given the government’s regular and “particular

need for specialized knowledge or expertise,” it must

often “look outside its permanent work force to secure

the services of private individuals.” Filarsky, 566 U.S.

at 390-391; see Al Shimari, 679 F.3d at 240-241

(Wilkinson, J., dissenting) (“Few, if any, governmental

tasks are undertaken today without some form of

public-private partnership.”). Limiting the pool of

available contractors will reduce the government’s

options and may eliminate companies best able to

assist the government.

Expansive state tort liability may also deter

multinational companies working with the United

States abroad from establishing a domestic business

presence in the United States or otherwise investing

here. That would dampen a “key driver of the economy

and *** an important source of innovation, exports,

and jobs.”

U.S. Dep’t of Commerce, The U.S.

Litigation

Environment

and

Foreign

Direct

Investment, Supporting U.S. Competitiveness by

Reducing Legal Costs and Uncertainty 2 (2008).

At the same time, increasing the cost to U.S.

companies will give foreign firms a competitive

advantage and eliminate prospective jobs for

23

Americans. Because foreign corporations “are beyond

the reach of U.S. courts both as a legal and practical

matter,” they “may have little to fear from ***

litigation *** under state tort law[.]” Sykes, Corporate

Liability, 100 Geo. L.J. at 2193. Enhanced liability

under U.S. law thus effectively imposes a state-tort

“tax” on domestic businesses that “reduce[s] the

competitiveness

of

U.S.

firms

and

other

multinationals subject to suit in the United States.”

Id. at 2194.

Permitting extraterritorial state tort liability also

means that the U.S. government will pay more to work

with the smaller pool of contractors that remains. The

risk of state tort lawsuits creates a significant cost

that American businesses must absorb. See pp. 16-20,

supra. Those businesses, in turn, “predictably raise

their prices to cover, or to insure against, contingent

liability” for their work as federal contractors. See

Boyle v. United Technologies Corp., 487 U.S. 500, 511512 (1988). The costs of “state tort suits against

contractors” will “ultimately be passed through,

substantially if not totally, to the United States itself.”

Id. (noting that state laws encouraging this result

present a “significant conflict” with federal policy).

Those higher costs “chill both the government’s ability

and willingness to contract by raising the price of

partnering with private industry[.]” Al Shimari, 679

F.3d at 243 (Wilkinson, J., dissenting). Ultimately,

the costs for “imposing tort liability on government

contractors” are borne by “the American taxpayer.”

Saleh, 580 F.3d at 8.

24

D.

State Tort Liability Undermines Vital

Government Operations And Impinges

On Foreign Policy.

As this Court has observed, suits challenging

overseas conduct raise significant “foreign policy

concerns.” Nestlé USA, 141 S. Ct. at 1939. The threat

of state tort liability against U.S. companies and

contractors working with the federal government

abroad has noneconomic costs as well. Insulating

private persons doing the public’s work from tort

liability helps “[e]nsur[e] that those who serve the

government do so ‘with the decisiveness and the

judgment required by the public good,’” and protects

against “‘unwarranted timidity’ on the part of those

engaged in the public’s business.” Filarsky, 566 U.S.

at 390 (citations omitted). Removing that layer of

protection by imposing extraterritorial “tort law may

*** lead to excessive risk-averseness on the part of

potential defendants,” Al Shimari, 679 F.3d at 226

(Wilkinson, J., dissenting), and will “surely hamper

military flexibility and cost-effectiveness,” Saleh, 580

F.3d at 8. That concern is especially pressing where

U.S. military personnel or other federal employees

may be immune from state tort liability, requiring

private actors to tread lightly or “be left holding the

bag[.]” Filarsky, 566 U.S. at 391; see id. (discussing

implications when private actors “fac[e] full liability

for actions taken in conjunction with government

employees who enjoy immunity”).

Moreover, given the close interaction between

public and private personnel today, even a routine

foreign tort case requires the collection of evidence and

testimony from military and government personnel.

25

Depositions of military officials and contracting

personnel are disturbingly common in these cases.

See, e.g., Harris v. Kellogg, Brown & Root Servs. Inc.,

878 F. Supp. 2d 543, 557-560 & 567 n.16 (W.D. Pa.

2012), rev’d by Harris, 724 F.3d 458 (3d Cir. 2013); see

also In re KBR, Inc., Burn Pit Litig., 268 F. Supp. 3d

at 792-802 (describing evidentiary hearing testimony

from U.S. Army commanding generals and senior

DOD officials). Such “broad-ranging discovery and the

deposing of numerous persons *** can be particularly

disruptive of effective government.”

Harlow v.

Fitzgerald, 457 U.S. 800, 816-817 (1982). That is

especially true in the military context, where a trial is

liable to “involve second-guessing military orders, and

would often require members of the Armed Services to

testify in court as to each other’s decisions and

actions.” Stencel Aero Eng’g Corp. v. United States,

431 U.S. 666, 673 (1977).

Yet such judicial

“interference” with the conduct of important

government business “is precisely what we invite by

ascribing to the fifty states the unexpressed wish that

their tort law govern the conduct of military [and other

governmental] operations abroad.” Al Shimari, 679

F.3d at 232 (Wilkinson, J., dissenting).

In the end, the largest cost for the federal

government may come in the form of interference with

its foreign policy prerogatives. Our Constitution

expressly entrusts the political branches of the

national government with the foreign affairs power,

see U.S. CONST. art. I, § 8, cls. 1, 11-15; art. II, § 2, cls.

1-2, and thereby deprives the States of the same, id.

art. I, § 10. Therefore, when a state’s law encroaches

upon the “effective exercise of the Nation’s foreign

26

policy,” it “must give way.” Zschernig v. Miller, 389

U.S. 429, 440 (1968).

Congress and the Executive Branch set

standards for how workers under federal contracts

should conduct themselves in foreign nations, and for

how they are held responsible for the harms they cause

doing the government’s work. Allowing fifty different

states to regulate the way that contractors operate on

far-flung battlefields and in embassies, on overseas

reconstruction projects, and during international

humanitarian missions will alter that carefully struck

balance.

The ensuing lack of uniform federal

standards may “compromise the very capacity of the

President to speak for the Nation with one voice in

dealing with other governments” and nations. Crosby

v. National Foreign Trade Council, 530 U.S. 363, 381

(2000). Such state tort intrusion “undercuts the

President’s diplomatic discretion and the choice he has

made exercising it.”

American Ins. Ass’n v.

Garamendi, 539 U.S. 396, 423-424 (2003).

For that reason, as Judge Wilkinson has

observed, “state tort claims have no passport that

allows their travel in foreign battlefields[.]” Al

Shimari, 679 F.3d at 227. The time has come for this

Court to consider whether the steep and significant

costs to both U.S. companies and the federal

government justify the application of state law to

federal contractors operating overseas.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted.

27

Stephanie A. Maloney

Tyler S. Badgley

U.S. CHAMBER LITIGATION

CENTER

January 10, 2022

Pratik A. Shah

Counsel of Record

Aileen M. McGrath

AKIN GUMP STRAUSS

HAUER & FELD LLP