Amicus Curiae Brief — Midwest Air Traffic Control Service, Inc., Petitioner v. Jessica T. Badilla, et al.
Supreme Court briefJan 10, 2022
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No. 21-867
IN THE
Supreme Court of the United States
————
MIDWEST AIR TRAFFIC CONTROL SERVICE, INC.,
v.
Petitioner,
JESSICA T. BADILLA, et al.,
Respondents.
————
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
————
MOTION FOR LEAVE TO FILE AND BRIEF OF
PROFESSIONAL SERVICES COUNCIL AS
AMICI CURIAE IN SUPPORT OF PETITIONER
————
JENNIFER S. ZUCKER
Counsel of Record
CHRISTOPHER M. O’BRIEN
GREENBERG TRAURIG, LLP
2101 L Street, N.W.
Suite 1000
Washington, DC 20037
(202) 331-3114
zuckerjs@gtlaw.com
Counsel for Amicus Curiae
January 10, 2022
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
IN THE
Supreme Court of the United States
————
No. 21-867
————
MIDWEST AIR TRAFFIC CONTROL SERVICE, INC.,
v.
Petitioner,
JESSICA T. BADILLA, et al.,
Respondents.
————
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
PROFESSIONAL SERVICES COUNCIL AS
AMICI CURIAE IN SUPPORT OF PETITIONER
————
Professional Services Council (“PSC”) respectfully
moves under Supreme Court Rule 37.2(b) for leave to
file a brief as amicus curiae in support of Petitioner
Midwest Air Traffic Control Service, Inc. (“Midwest”).
All parties were timely notified of PSC’s intent to
file this amicus brief. Petitioner consents to its filing.
Respondents Jessica T. Badilla, Ingrid S. Bulos, Consorcia
A. Castillo, Josephine R Elbanbuena, Michelle S.
Medina, Nela A. Padura, Acea M. Mosey, Erie County
Public Administrator, do not consent to the filing of
this brief. PSC thus files this motion seeking leave to
file the attached brief.
PSC is the national trade association for the government professional and technology services industry.
PSC’s more than 400 member companies represent
small, medium, and large businesses that support the
U.S. military and Department of Defense, Department
of Homeland Security, and other federal departments
and agencies in foreign war zones and other high-risk
environments.
PSC has a strong interest in the proper interpretation of the Federal Tort Claims Act’s combatantactivities exception because its members face the same
issues raised in this appeal when working with the
U.S. military. PSC’s members serve and have served
as an essential component of the United States’ strategic plan in Iraq and Afghanistan, respectively. PSC
therefore seeks leave to file the attached brief to highlight why the failure of the court below to recognize
the combatant-activities exception to the Federal Tort
Claims Act, while simultaneously articulating a novel
test to determine the scope of preemption and thereby
deepening the conflict between circuits on this issue,
creates significant implications for the Nation’s military
effectiveness. PSC’s proposed amicus brief explains
this result from its unique perspective and addresses
how state tort liability implicates the policies
underlying the Federal Tort Claims Act’s combatantactivities exception. The proposed amicus brief does
not repeat the Defendants-Appellants’ arguments.
For the foregoing reasons, PSC respectfully requests
that it be permitted to file the attached brief as amicus
curiae.
Respectfully submitted,
JENNIFER S. ZUCKER
Counsel of Record
CHRISTOPHER M. O’BRIEN
GREENBERG TRAURIG, LLP
2101 L Street, N.W.
Suite 1000
Washington, DC 20037
(202) 331-3114
zuckerjs@gtlaw.com
Counsel for Amicus Curiae
January 10, 2022
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................
ii
INTEREST OF AMICI CURIAE ........................
1
SUMMARY OF THE ARGUMENT ....................
2
ARGUMENT ........................................................
5
WHETHER
PRIVATE
CONTRACTORS
CAN BE SUED FOR PERFORMING
TRADITIONAL
MILITARY
SUPPORT
FUNCTIONS ON FOREIGN BATTLEFIELDS
IS A QUESTION OF EXCEPTIONAL
IMPORTANCE..................................................
5
I.
Private Contractors Perform Traditional
Military Support Functions on the
Modern Battlefield ....................................
5
Exposing Battlefield Support Contractors To The Risk Of Tort Liability
Undermines The Military’s Ability to
Conduct Warfare .......................................
11
A. The Risk Of Tort Liability Will Deter
Battlefield Support Contractors From
Assisting The U.S. Military In Future
Conflicts ...............................................
12
B. The Risk Of Tort Liability Will
Increase Costs And Restrict The
Military’s Wartime Flexibility ............
15
C. The Risk Of Tort Liability Will
Undermine The Military’s Chain Of
Command On The Battlefield .............
18
CONCLUSION ....................................................
22
II.
(i)
ii
TABLE OF AUTHORITIES
CASES
Page(s)
Aiello v. Kellogg, Brown
& Root Servs., Inc.,
751 F. Supp. 2d 698 (S.D.N.Y. 2011)........
10
Al Shimari v. CACI, Int’l, Inc.,
679 F.3d 205 (4th Cir. 2012) ... 12, 14, 20, 21, 22
Al Shimari v. CACI Premier Tech., Inc.,
775 Fed. App’x 758 (4th Cir. 2019)...........
21
Atl. Marine Const. Co. v. U.S. Dist. Court
for W. Dist. of Tex.,
134 S. Ct. 568 (2013) .................................
13
Badilla v. Nat'l Air Cargo Inc.,
433 F. Supp. 3d 428 (W.D.N.Y. 2020),
vacated and remanded sub nom. Badilla
v. Midwest Air Traffic Control Serv., Inc.,
8 F.4th 105 (2d Cir. 2021) ............... 7, 11, 13, 20
Bishop v. Fla. Specialty Paint Co.,
389 So. 2d 999 (Fla. 1980) ............................
13
Bixby v. KBR, Inc.,
No. 3:09-CV-632-PK, 2013 WL 1789792
(D. Or. Apr. 26, 2013), vacated, 603 Fed.
App’x 605 (9th Cir. 2015) ..........................
14
Boyle v. United Techs. Corp.,
487 U.S. 500 (1988) ............................. 11, 15, 19
Burke v. Ford,
389 U.S. 320 (1967) ...................................
15
iii
TABLE OF AUTHORITIES—Continued
Page(s)
Bynum v. FMC Corp.,
770 F.2d 556 (5th Cir. 1985) .....................
14
Carley v. Wheeled Coach,
991 F.2d 1117 (3d Cir. 1993) ....................
19
Carmichael v. Kellogg, Brown & Root
Servs., Inc.,
572 F.3d 1271 (11th Cir. 2009) ........... 10, 13, 19
Chappell v. Wallace,
462 U.S. 296 (1983) ...................................
18
Dreher v. Budget Rent-A-Car Sys., Inc.,
634 S.E.2d 324 (Va. 2006) ........................
13
Feres v. United States,
340 U.S. 135 (1950) ...................................
11
Filarsky v. Delia,
132 S. Ct. 1657 (2012) ......................... 16, 18, 20
Goldman v. Weinberger,
475 U.S. 503 (1986) ...................................
18
Harris v. Kellogg Brown & Root Services,
Inc., 724 F.3d 458 (3d Cir. 2013) ..............
13
Johnson v. Eisentrager,
339 U.S. 763 (1950) ...................................
22
Johnson v. United States,
170 F.2d 767 (9th Cir. 1948) .....................
12
Kommavongsa v. Haskell,
67 P.3d 1068 (Wash. 2003) ..........................
14
Koohi v. United States,
976 F.2d 1328 (9th Cir. 1992) ...................
12
iv
TABLE OF AUTHORITIES—Continued
Page(s)
Lane v. Halliburton,
529 F.3d 548 (5th Cir. 2008) .....................
8
McMahon v. Presidential Airways, Inc.,
502 F.3d 1331 (11th Cir. 2007) .................
18
Saleh v. Titan Corp,
580 F.3d 1 (D.C. Cir. 2009) ......................passim
Stencel Aero Eng’g Corp. v. United States,
431 U.S. 666 (1977) ...................................
21
Taylor v. Kellogg Brown
& Root Servs., Inc.,
658 F.3d 402 (4th Cir. 2011) .....................
10
Tiffany v. United States,
931 F.2d 271 (4th Cir. 1991) .....................
18
Tozer v. LTV Corp.,
792 F.2d 403 (4th Cir. 1986) .....................
16
United States v. Stanley,
483 U.S. 669 (1987) ...................................
21
Wyatt v. Cole,
504 U.S. 158 (1992) ...................................
16
STATUTES
18 U.S.C. § 774 .............................................
18
28 U.S.C. § 2680(j) ........................................
11
v
TABLE OF AUTHORITIES—Continued
COURT FILINGS
Page(s)
Br. for United States as Amicus Curiae, Al
Shimari v. CACI Int’l, Inc., No. 09-1335,
2012 WL 123570 (4th Cir. Jan. 14, 2012) 19, 21
Br. for United States as Amicus Curiae,
Carmichael v. Kellogg, Brown & Root
Servs., Inc., No. 09-683, 2010 WL
2214879 (U.S. May 28, 2010) ...................
21
OTHER AUTHORITIES
Charles Cantu, The Government Contractor
Defense: Breaking the Boyle Barrier, 62
Alb. L. Rev. 403 (1998) .............................
11
Comm’n on Wartime Contracting in Iraq &
Afg., At What Risk? Correcting OverReliance on Contractors in Contingency
Operations, Second Interim Report to
Congress (Feb. 24, 2011)...........................
6, 8
Comm'n on Wartime Contracting in Iraq &
Afg., Transforming Wartime Contracting:
Control-ling Costs, Reducing Risks, Final
Report to Congress (Aug. 31, 2011) .......... 9, 10
Heidi M. Peters, Cong. Research Serv.,
R44116,
Department
of
Defense
Contractor and Troop Levels in
Afghanistan and Iraq: 2007-2020 (2021) . 9, 10
Karen Parish, Dempsey: Military Costs Must
Shrink, American Foreign Press Servs.
(Mar. 6, 2012) ............................................
7
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Michèle A. Flournoy, How to Transform the
Pentagon for a Competitive Era, Foreign
Affairs (May/June 2021), https://www.
foreignaffairs.com/articles/united-states/
2021-04-20/flournoy-americas-militaryrisks-losing-its-edge .................................. 16-17
Mosh Schwartz & Jennifer Church, Cong.
Research Serv., R43074, Department of
Defense’s Use of Contractors to Support
Military Operations: Background,
Analysis, and Issues for Congress (2013) ...passim
Office of the Under Sec’y of Def. for
Acquisition, Tech., and Logistics, Report
of the Defense Science Board Task Force
on Contractor Logistics in Support of
Contingency Operations (2014) ...... 5, 16, 17, 19
Office of the Under Sec’y of Def. for
Acquisition, Tech., and Logistics, Report
of the Defense Science Board Task Force
on Improvements to Services
Contracting (2011) ....................................... 6, 8, 17
Steven L. Schooner, Desderata: Objective
for a System of Government Contract
Law, 11 Pub. Procurement L. Rev. 103
(2002) .........................................................
15
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Steven L. Schooner & Collin D. Swan, Dead
Contractors: The Un-Examined Effect of
Surrogates on the Public’s Casualty
Sensitivity, 6 J. Nat’l Sec. L. & Pol’y 11
(2012) ......................................................... 6, 10
Testimony of U.S. Army General John
Nicholson, Commander, NATO Resolute
Support Mission and United States
Forces–Afghanistan, Hearing to Receive
Testimony
on
the
Situation
in
Afghanistan Before the S. Comm. On
Armed Services, 115th Cong. 65 (2017) ...
7
U.S. Air Force, Careers, https://www.air
force.com/careers/detail/air-traffic-control
(last visited Jan. 6, 2022) ...........................
6
U.S. Dep’t of Defense, Quadrennial Defense
Review Report (Feb. 6, 2006) ....................
7
U.S. Dep’t of Defense, Summary of the 2018
National Defense Strategy of the United
States of America (2018) ........................... 7, 15, 17
U.S. Gov’t Accountability Office, GAO-07145 Military Operations: High Level DOD
Action Needed to Address LongStanding
Problems with Management and Oversight
of Contractors Supporting Deployed Forces
(2006) .........................................................
9
INTEREST OF AMICI CURIAE1
Amicus Curiae Professional Services Council (“PSC”)
is a non-partisan and non-profit national trade association for the government professional and technology
services industry. PSC’s more than 400 member companies represent small, medium, and large businesses
that support the U.S. military and Department of
Defense, Department of Homeland Security, and other
federal departments and agencies in foreign war zones
and other high-risk environments. PSC’s members
provide a wide range of professional and technology
services, including information technology, engineering,
logistics, facilities management, operations and maintenance, consulting, international development, and
scientific, social, and environmental services. Together,
the association’s members employ hundreds of thousands of Americans in all 50 states. These contractors
have a strong interest in being able to continue to
support military operations without interference from
mass tort litigation.
The ability of PSC member companies to continue
supporting the U.S. military is profoundly affected by
the risks associated with operating in a wartime
environment. Subjecting operational support contractors to the burdens of state tort suits arising from
1
Pursuant to Supreme Court Rule 37.6, counsel for amicus
curiae states that no counsel for a party authored this brief in
whole or in part, and no person other than amicus and their
counsel made any monetary contribution intended to fund the
preparation or submission of this brief. Petitioner’s counsel has
consented to the filing of this brief, but Respondents’ counsel has
withheld consent. Consequently, amicus has filed a motion for
leave to file this brief. Counsel of record provided the required
notice to the parties at least ten days before the filing deadline
for this brief.
2
performance of their war-related contractual services
will exponentially compound these risks and may very
well deter or prevent contractor participation in future
endeavors with the U.S. military. PSC therefore has a
vital interest in ensuring the proper resolution of the
issues before this Court and is uniquely qualified to
provide an industry perspective on the consequences
of applying state tort law to contractors’ actions in
support of U.S. military operations on the battlefield.
SUMMARY OF THE ARGUMENT
Throughout history, contractors have provided the
United States with increased capacity, capabilities,
and skills not otherwise available within the military
structure. Since the Vietnam era, and particularly
over the decade plus of combat operations in Iraq
and Afghanistan, the U.S. military’s integration of
contract support has been unprecedented in both
scope and scale. Battlefield contracting support—as
distinguished from routine, non-contingency support—
runs the gamut from armed private security guards
and base camp services to highly skilled intelligence
analysts, linguists, and trainers. The previous wars in
Iraq and Afghanistan represent the first sustained
military operations in which support contractors
have comprised more than half of the total U.S. force
in theater. Due to the increasingly complex global
security environment, contractors are now essential to
the readiness and effectiveness of the U.S. military.
This is the reality of the modern battlefield.
Yet, taking on these functions has dramatically
increased contractors’ legal exposure. Although the
United States is immune from lawsuits arising out of
the military’s combatant activities, there is a circuit
split as to whether private contractors can be held
liable under state law for performing military support
3
functions on foreign battlefields. In this case, the
Second Circuit allowed a lawsuit against Petitioner
Midwest Air Traffic Control Services, Inc. (“Midwest”)
to proceed to trial in New York federal court even
though Midwest was performing air traffic control
services as a subcontractor for the U.S. military in
Afghanistan.
The Court should grant the Petition because whether
these types of lawsuits should proceed is a question
of exceptional importance. Contractors are integral
to the national defense strategy and there must be
consistent standards for all U.S. forces. Exposing
contractors to the risk of tort liability will undermine
the military’s ability to conduct warfare and reduce
the availability of critical resources.
First, the risk of tort liability will deter operational
support contractors from providing their expertise to
the U.S. military in new conflicts. War is incompatible
with tort law because it is intentionally violent and
inherently unpredictable. The caution that tort law
requires is untenable in an environment where risk
taking is the norm. Contractors simply cannot adhere
to a standard of reasonable care while at the same
time supporting American soldiers in this hostile
environment. Even if they could, contractors cannot
possibly know which state’s standard of care applies at
the time they must act. The inability to avoid tort
liability—due to the nature of warfare and the ex post
choice-of-law maze—discounts the benefits of partnering with the military. Because the risks of crippling
tort liability are so great, many contractors will take a
pass the next time the military calls for their help on
a foreign battlefield.
Second, the risk of tort liability will raise costs and
restrict the military’s wartime flexibility. The cost of
4
battlefield support will inevitably rise if fewer contractors compete for government contracts. Contractors
will also raise their prices to account for the risks of
unknown tort liability, meaning the United States will
indirectly bear the costs of actual and potential civil
judgments. But more importantly, the government’s
ability to perform its traditional support functions will
be limited as fewer contractors are willing to venture
to foreign battlefields to partner with the U.S. military.
Third, the risk of tort liability will undermine the
chain of command on the battlefield. Private contractors will question battlefield commanders if military
orders increase the risk of civil liability or go beyond
the scope of their contracts. Hesitation and timidity
will flourish in an environment where lives depend on
reflexive obedience to military directives. Further, if
the lawsuits proceed, service personnel, including
military commanders, will be called off the battlefield
and into courtrooms around the nation to testify as to
whether the military or the contractor is to blame for
a plaintiff’s injury. The inevitable finger-pointing that
follows will undermine the trust between the military
and its contractors. In short, exposing battlefield
support contractors to the risk of tort liability has the
same effect as if the lawsuit were brought against the
military itself.
5
ARGUMENT
WHETHER PRIVATE CONTRACTORS CAN
BE SUED FOR PERFORMING TRADITIONAL
MILITARY SUPPORT FUNCTIONS ON FOREIGN
BATTLEFIELDS IS A QUESTION OF EXCEPTIONAL IMPORTANCE
The Petition presents an exceptionally important
question that should be decided now. The U.S. military
relies on private contractors to perform traditional
military support functions on the battlefield and to
maintain combat readiness. Exposing these battlefield
support contractors to the risks of tort liability will
undermine the military’s strategic position and ability
to conduct warfare. The Court should grant the
Petition and reverse the judgment below.
I. Private Contractors Perform Traditional
Military Support Functions on the Modern
Battlefield
The U.S. military has long relied on private contractors to perform critical services. Office of the Under
Sec’y of Def. for Acquisition, Tech., and Logistics,
Report of the Defense Science Board Task Force on
Contractor Logistics in Support of Contingency
Operations 10 (2014) (“Defense Science Board Report
on Contractor Logistics in Support of Contingency
Operations”). Over the last couple of decades, contractors in Iraq and Afghanistan have been “responsible
for such critical tasks as providing armed security to
convoys and installations, providing life support to
forward deployed warfighters, conducting intelligence
analysis, and training local security forces.” Mosh
Schwartz & Jennifer Church, Cong. Research Serv.,
R43074, Department of Defense’s Use of Contractors to
Support Military Operations: Background, Analysis,
6
and Issues for Congress 3 (2013) (“Schwartz & Church”).
They also “wash clothes and serve meals, maintain
equipment and translate local languages, erect buildings and dig wells, and support many other important
activities.” Comm’n on Wartime Contracting in Iraq &
Afg., At What Risk? Correcting Over-Reliance on Contractors in Contingency Operations, Second Interim
Report to Congress, at 7 (Feb. 24, 2011) (“Second
Report to Congress”).
These are functions that the military previously
reserved for itself. See Steven L. Schooner & Collin D.
Swan, Dead Contractors: The Un-Examined Effect of
Surrogates on the Public’s Casualty Sensitivity, 6 J.
Nat’l Sec. L. & Pol’y 11, 14 (2012) (“Schooner &
Swan”). But “with a smaller, all-volunteer force, many
of these services are now contracted out.” Office of
the Under Sec’y of Def. for Acquisition, Tech., and
Logistics, Report of the Defense Science Board Task
Force on Improvements to Services Contracting 31
(2011) (“Defense Science Board Improvements to Services
Contracting”). Today, “[a]lmost every defense function
* * * is carried out in part by contracted services,
including support for congressional directives,” id. at
1, because there has been a “systemic change” toward
relying on contractors to accomplish traditional
military functions, id. at 31. This case is a clear
example of that policy. Although the U.S. Air Force
enlists Airmen to serve as air traffic controllers, the
military made a decision to outsource these services in
this instance. See U.S. Air Force, Careers, https://www.
airforce.com/careers/detail/air-traffic-control (last visited
Jan. 6, 2022) (“The lives of those in the air heavily
depend on Airmen on the ground. Responsible for
managing the flow of aircraft through all aspects
of their flight, [U.S. Air Force] Air Traffic Control
7
specialists ensure the safety and efficiency of air
traffic on the ground and in the air.”).
The U.S. military now views private contractors as
functionally integrated into—and an essential component of—the total military force. See U.S. Dep’t of
Defense, Quadrennial Defense Review Report 75 (Feb.
6, 2006); Schwartz & Church 2; see also U.S. Dep’t of
Defense, Summary of the 2018 National Defense
Strategy of the United States of America 7 (2018)
(“2018 National Defense Strategy”) (“Recruiting, developing, and retaining a high-quality military and civilian workforce is essential for warfighting success.”).
The Chairman of the Joint Chiefs of Staff has stated
that “[c]ontractors are part of the total military forces.”
Karen Parish, Dempsey: Military Costs Must Shrink,
American Foreign Press Servs. (Mar. 6, 2012) (emphasis added). In fact, “we are in a situation where we
have to substitute contractors for service members to
do functions that normally service members would
do.” Hearing to Receive Testimony on the Situation
in Afghanistan Before the S. Comm. On Armed
Services, 115th Cong. 65 (2017) (testimony of U.S.
Army General John Nicholson, Commander, NATO
Resolute Support Mission and United States Forces–
Afghanistan) (“Situation in Afghanistan”). As a result
of this integration in this case, contractor personnel
were authorized to wear military clothing and carry
weapons, required to reside on a military base, and
“subject to the jurisdiction of the Uniform Code of
Military Justice,” Brief for Petitioner at 5, Midwest Air
Traffic Control Serv., Inc. v. Badilla, (No. 21-867),
while performing in a location “regularly attacked” by
insurgents and reporting to United States Air Force
officers. Badilla, 8 F.4th at 112.
8
In light of “the critical role of contractors in military
operations,” Schwartz & Church 11, the military
has found “the use of civilian contractors in support
roles to be an essential component of a successful wartime mission,” Lane v. Halliburton, 529 F.3d 548,
554 (5th Cir. 2008). Private contractors have become
“an operational necessity,” see Defense Science Board
Improvements to Services Contracting, Memo., because
“the military is unable to effectively execute many
operations, particularly those that are large-scale and
long-term in nature, without extensive operational
contract support,” Schwartz & Church 2.
The reason for the military’s reliance on battlefield
support contractors is simple. “[C]ontractors can be
force multipliers, affording access to an adaptable mix
of unique skill sets that would otherwise be unaffordable or unavailable within a solely military and
government civilian force.” Defense Science Board
Improvements to Services Contracting 23. “Contractors
can provide significant operational benefits to DOD”
by “freeing up uniformed personnel to conduct combat
operations; providing expertise in specialized fields,
* * * ; [] providing a surge capability, [and] quickly
delivering critical support capabilities tailored to
specific military needs.” Schwartz & Church at 3. They
also can be “hired when a particular need arises and
released when their services are no longer needed.” Id.
And they are less expensive than “maintaining a
permanent in-house capability.” Id. These are few of
many reasons why “analysts and defense officials
believe that contractors will continue to play a central
role in military operations.” Id. at 1; Second Report
to Congress 9 (noting that “the United States will
continue to use contractors to carry out many of its
contingency-related requirements”).
9
Due to these tremendous benefits, the number of
contractors on the battlefield has reached “unprecedented levels.” See Second Report to Congress 16. Over
7,000 different companies have sent civilian contractors to Afghanistan and Iraq. See Comm'n on Wartime
Contracting in Iraq & Afg., Transforming Wartime
Contracting: Controlling Costs, Reducing Risks, Final
Report to Congress, at 198 (Aug. 31, 2011) (“Final
Report to Congress”). The Army alone reported that
“almost 60,000 contactor employees [were] support[ing]
ongoing military operations in Southwest Asia” in
2006, compared to less than 10,000 contractor employees supporting U.S. military operations during the
1991 Persian Gulf War. U.S. Gov’t Accountability
Office, GAO-07-145 Military Operations: High Level
DOD Action Needed to Address LongStanding Problems
with Management and Oversight of Contractors Supporting Deployed Forces 1 (2006).
During the most recent conflicts in Iraq and
Afghanistan, contractors frequently exceeded the number
of U.S. military forces in-country. Heidi M. Peters,
Cong. Research Serv., R44116, Department of Defense
Contractor and Troop Levels in Afghanistan and
Iraq: 2007-2020 1 (2021) (“Peters”). For example, in
September 2008, 163,446 private contractors were operating in Iraq alongside 146,800 U.S. military soldiers.
Schwartz & Church at 25. During the same period,
68,252 private contractors were operating alongside
33,500 U.S. military troops in Afghanistan. Id. at 24.
By March 2012, the number of contractors in Afghanistan
ballooned to 117,227, compared to 88,200 troops. Peters
7. Between 2015 and 2020, the number of contractors
10
in Afghanistan fluctuated between 22,562 and 30,455.
Id. 7–8.2
Because they blanket the battlefield, private contractors have bled and died alongside American
soldiers at staggering rates. See Schooner & Swan 26
(“In addition to outsourcing jobs that were previously
performed by soldiers, the government is outsourcing
the physical risks of injury and death associated with
those jobs[.]”). By 2011 more than 2,600 contractors
had been killed in Iraq and Afghanistan, id. at 29,
representing nearly 30 percent of all U.S. fatalities in
those conflicts, id. The U.S. Commission on Wartime
Contracting has expressed concern that “[t]he extensive use of contractors obscures the full human cost of
war” because “significant contractor deaths and injuries
largely remain[] uncounted and unpublicized by the
U.S. government and the media.” See Final Report to
Congress 16–17.
As private contractors have agreed to take on more
of the military’s support functions, their exposure to
civil liability under state tort law has also increased.
Contractors have been sued for performing traditional
military support functions as varied as driving convoys of Army soldiers on the battlefield, Carmichael v.
Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271
(11th Cir. 2009), performing electrical maintenance in
a war zone, Taylor v. Kellogg Brown & Root Servs.,
Inc., 658 F.3d 402 (4th Cir. 2011), running military
prisons, Saleh v. Titan Corp, 580 F.3d 1 (D.C. Cir.
2009), maintaining latrines at a forward operating
base, Aiello v. Kellogg, Brown & Root Servs., Inc., 751
2
The Department of Defense ceased reporting the number of
U.S. military troops deployed in Afghanistan, Iraq, and Syria in
2017. See Peters 3.
11
F. Supp. 2d 698 (S.D.N.Y. 2011), waste disposal and
waste treatment services, In re KBR, Inc., Burn Pit
Litigation (4th Cir. 2014), cert. denied, 574 U.S. 1120
(2015), and now, providing air traffic control at a
pivotal U.S. military hub, Badilla v. Nat'l Air Cargo
Inc., 433 F. Supp. 3d 428, 433 (W.D.N.Y. 2020),
vacated and remanded sub nom. Badilla v. Midwest
Air Traffic Control Serv., Inc., 8 F.4th 105 (2d Cir.
2021). While the U.S. military is immune from such
lawsuits, see 28 U.S.C. § 2680(j); Feres v. United
States, 340 U.S. 135 (1950), several courts, including
the Second Circuit, have allowed private contractors
to be sued under state law for performing military
support functions.
II. Exposing Battlefield Support Contractors
To The Risk Of Tort Liability Undermines
The Military’s Ability to Conduct Warfare
The proliferation of services contracts has expanded over the past decade and extends well beyond
manufacturing products. Service contracts inherently
encompass discretionary functions that do not fit within
the Boyle standard. Charles Cantu, The Government
Contractor Defense: Breaking the Boyle Barrier, 62
Alb. L. Rev. 403 (1998) (The Boyle standard, known
as the government contractor defense, shields those
successfully invoking it from liability for injuries
caused by defective products they manufactured in
accordance with the specifications and after warning
the government of the dangers of its design.). Exposing
contractors to the risk of tort liability will cripple the
military’s war-fighting capabilities. First, the risk of
liability will deter private contractors from assisting
the military in future wars. Second, it will increase
prices for contractor support and will limit the military’s flexibility to conduct warfare as it will have to
12
train and divert troops to perform support functions.
Third, it will undermine the military’s authority on
the battlefield.
A. The Risk Of Tort Liability Will Deter
Battlefield Support Contractors From
Assisting The U.S. Military In Future
Conflicts.
The fear of crippling tort liability is a major
deterrent for private contractors because risks cannot
possibly be avoided on the battlefield. “[T]ort law is
based in part on the theory that the prospect of liability makes the actor more careful.” Koohi v. United
States, 976 F.2d 1328, 1334 (9th Cir. 1992). But “[t]he
very purposes of tort law are in conflict with the pursuit of warfare.” Saleh, 580 F.3d at 7; see also Koohi,
976 F.2d at 1335. “[A]ll of the traditional rationales
for tort law—deterrence of risk-taking behavior,
compensation of victims, and punishment of
tortfeasors—are singularly out of place in combat
situations, where risk-taking is the rule.” Saleh, 580
F.3d at 7 (emphasis added); Johnson v. United States,
170 F.2d 767, 769 (9th Cir. 1948) (remarking that
combatant activities “by their very nature should be
free from the hindrance of a possible damage suit”).
“[C]aution that may be well-advised in a civilian
context may not translate neatly to a military setting,”
just as “[r]isks considered unacceptable in civilian life
are sometimes necessary on a battlefield.” Al Shimari
v. CACI, Int’l, Inc., 679 F.3d 205, 226 (4th Cir. 2012)
(Wilkinson, J., dissenting).
Seemingly normal tasks take on a dramatically
different character in an environment typified by
“overwhelming and pervasive violence which each side
intentionally inflicts on the other.” Koohi, 976 F.2d at
1335. For example, the simple act of driving down a
13
road in Iraq or Afghanistan is fraught with peril. See,
e.g., Carmichael, 572 F.3d at 1289 (“We do not face
the question of whether the defendants drove a fuel
truck unsafely, say, on Interstate I-95 between Miami,
Florida and Savannah, Georgia.”). The same is true of
operating an essential air traffic control facility regularly attacked by insurgents. See Badilla, 8 F.4th at 112.
Even if battlefield support contractors could conform
their conduct to a standard of reasonable care, the
precise standard is unknown at the time the contractor must act. Each of the fifty States has developed its
own tort law regime. Courts that allow battlefield
support contractors to be sued must apply the forum
state’s choice-of-law principles to determine which jurisdiction’s substantive law applies to a contractor’s conduct
on a foreign battlefield. Harris v. Kellogg Brown &
Root Services, Inc., 724 F.3d 458, 467 (3d Cir. 2013).
Deciding which law applies to battlefield conduct
occurs after the injury and depends on factors wholly
unrelated to the contractor’s conduct. Atl. Marine
Const. Co. v. U.S. Dist. Court for W. Dist. of Tex., 134
S. Ct. 568, 582 (2013) (“A federal court sitting in
diversity ordinarily must follow the choice-of-law rules
of the State in which it sits.”). Adding to the uncertainty, choice-of-law regimes vary greatly among the
States. Compare Dreher v. Budget Rent-A-Car Sys.,
Inc., 634 S.E.2d 324, 326–27 (Va. 2006) (the traditional
lex loci deliciti test), with Bishop v. Fla. Specialty Paint
Co., 389 So. 2d 999, 1001 (Fla. 1980) (the Restatement’s
“most significant relationship” test). Each is an idiosyncratic formula to determine which substantive law
applies.
This random, ex post selection of the standard of
care would make it impossible for battlefield support
contractors to conform their conduct ex ante. When a
14
court permits “extraterritorial application of different
state tort regimes * * * [it] allows for unlimited variation in the standard of care that is applied to critical
combatant activities.” Al Shimari, 679 F.3d at 238
(Wilkinson, J., dissenting) (emphasis added). This
leads to inconsistent and unpredictable outcomes. In
Al Shimari, for example, the Fourth Circuit “clear[ed]
the way for one federal court, sitting in Maryland, to
apply Iraqi tort law to the alleged conduct * * * of a
Virginia-headquartered contractor * * * , and for
another federal court, sitting in Virginia, to apply Virginia
tort law to a similarly situated contractor for alleged
conduct also occurring in an Iraqi war zone.” Id. at 227.
These are not trivial concerns. In Bixby v. KBR, Inc.,
the district court’s choice of Oregon law allowed a jury
to award the Oregon-based plaintiffs $75 million in
punitive damages in addition to $6 million in compensatory damages. Bixby v. KBR, Inc., No. 3:09-CV-632PK, 2013 WL 1789792, at *29, *31 (D. Or. Apr. 26,
2013), vacated, 603 Fed. App’x 605 (9th Cir. 2015). But
if the plaintiffs had been from Washington instead of
Oregon, then the $75 million punitive damages would
not have been possible. See Kommavongsa v. Haskell,
67 P.3d 1068, 1075 (Wash. 2003) (en banc) (“Washington
does not permit punitive damages in personal injury
cases.”). Although Bixby was later vacated for lack of
personal jurisdiction over the defendant, Bixby v. KBR,
Inc., 603 F. App’x 605, 606 (9th Cir. 2015), it illustrates
how the luck of ex post choice-of-law rules can increase
the contractor's liability more than tenfold.
The arbitrary risks of such staggering liability, and
the uncertainty of which substantive law applies, will
“discourage [military contractors] from bidding on
essential military projects.” Bynum v. FMC Corp., 770
F.2d 556, 566 (5th Cir. 1985); see also Saleh, 580 F.3d
15
at 9 (noting that liability will “discourage[] contractors
from participating in [planning and execution] where
their expertise would help to better the product”). If
fewer contractors are willing to assist the U.S. military
in future conflicts, the military’s ability to conduct
warfare will be significantly degraded.
B. The Risk Of Tort Liability Will Increase
Costs And Restrict The Military’s Wartime Flexibility.
Exposing battlefield support contractors to tort liability will inevitably increase costs for the U.S. military.
“[T]he government receives its best value in terms of
price, quality, and contract terms and conditions”
when it makes “effective use of competition.” Steven
L. Schooner, Desderata: Objective for a System of
Government Contract Law, 11 Pub. Procurement L.
Rev. 103, 104 (2002). The government has “a responsibility to gain full value from every taxpayer dollar
spent on defense.” 2018 National Defense Strategy 10.
But with fewer bidders willing to compete for contracts
to perform traditional military functions on the battlefield, the prices of those contracts will invariably rise.
See Burke v. Ford, 389 U.S. 320, 322 (1967) (“When
competition is reduced, prices increase.”).
Moreover, the contractor that wins a battlefield
support contract will inevitably “raise its price” to
account for the increased risk of civil liability. Boyle v.
United Techs. Corp., 487 U.S. 500, 507 (1988). “The
financial burden of judgments against the contractors
[will] ultimately be passed through, substantially if
not totally, to the United States itself[.]” Id. at 511–12;
see also Saleh, 580 F.3d at 8 (“Of course, the costs of
imposing tort liability on government contractors is
passed through to the American taxpayer.”). “Such
pass-through costs * * * defeat the purpose of the
16
immunity for military accidents conferred upon the
government itself.” Tozer v. LTV Corp., 792 F.2d 403,
408 (4th Cir. 1986).
With fewer contractors willing to perform traditional military support functions on the battlefield,
the “government’s ability to perform its traditional
functions” will also be limited. Filarsky v. Delia, 132
S. Ct. 1657, 1665 (2012) (quoting Wyatt v. Cole, 504
U.S. 158, 167 (1992)). The assurance of immunity from
suit and/or liability preserves the government’s ability
to perform its traditional functions by “ensuring that
talented candidates are not deterred from public
service.” Id. But the government must attract both
talented individuals willing to wear the uniform and
talented contractors to support those wearing the
uniform. id. at 1665–66 (“[I]t is often when there is a
particular need for specialized knowledge or expertise
that the government must look outside its permanent
work force to secure the services of private individuals.”). “Contractors are able to access a worldwide
labor force with skill sets and experience not available
in deployable military or civilian personnel, and also
may be able to provide a labor force willing to work
certain jobs at a far lower cost than members of the allvolunteer military.” Contractor Logistics in Support of
Contingency Operations 24. Because contractors “do
not depend on the government for their livelihood,
they have the freedom to select other work—work that
will not expose them to liability for government
actions.” Filarsky, 132 S. Ct. at 1666.
Fewer contractors willing to accept the risk of tort
liability will cause the military to lose the flexibility
that it enjoyed in Iraq and Afghanistan. There is
already a growing concern among Defense officials,
experts and academia that the U.S. military is losing
17
its technological edge in critical areas such as “artificial intelligence (AI), autonomy, unmanned systems,
and high-powered computing.” Michèle A. Flournoy,
How to Transform the Pentagon for a Competitive Era,
Foreign Affairs (May/June 2021), https://www.foreign
affairs.com/articles/united-states/2021-04-20/flournoyamericas-military-risks-losing-its-edge. Cutting-edge
commercial companies with healthy balance sheets
will be disincentivized to work with the Government if
they risk liability for simply performing in accordance
with the terms of their contract. The unknown exposure
will make them less likely to enter the government
marketplace. Consequently, the military will lose the
ability to enlist contractors “when specific expertise
is needed for a rapid response to an unexpected
adversary capability.” See Defense Science Board
Improvements to Services Contracting 11. Without
contractor support and innovation for key capabilities,
such as responding to cyberattacks; electronic warfare
and signal jamming, to name a few, “military commanders would be unable to field and sustain a force
for any period of time longer than roughly 14 days.”
Contractor Logistics in Support of Contingency
Operations 23.
The benefits from “engaging the services of companies that work in both commercial and government
sectors” to learn and “apply successful business practices, technologies, and skills” will also be lost. Id. A
key component of the military’s force modernization
plan to “foster a culture of experimentation and calculated risk-taking” involves leveraging commercial sector
expertise. 2018 National Defense Strategy 7–8. Given
the volunteer military’s reduced force structure and
increased reliance on contractors, permitting these
“suits will surely hamper military flexibility and costeffectiveness, as contractors may prove reluctant to
18
expose their employees to litigation-prone combat
situations.” Saleh, 580 F.3d at 8; see also Tiffany v.
United States, 931 F.2d 271, 276 (4th Cir. 1991)
(explaining that the “cumulative force of liability
‘[will] seriously handicap efficient government operations’” (citation omitted)).
C. The Risk Of Tort Liability Will Undermine The Military’s Chain Of Command
On The Battlefield.
Battlefields require unquestioned discipline to ensure
swift action in dynamic situations. See Chappell v.
Wallace, 462 U.S. 296, 300 (1983) (“[N]o military
organization can function without strict discipline and
regulation that would be unacceptable in a civilian
setting.”). Indeed, “to accomplish its mission the military
must foster instinctive obedience, unity, commitment,
and espirit de corps.” Goldman v. Weinberger, 475 U.S.
503, 507 (1986), superseded on statutory grounds by 18
U.S.C. § 774. Because contractors are integrated into
the total military force, the need for contractors to
obey battlefield commanders is paramount.
But with the fear of state tort liability hanging
over their heads, battlefield support contractors may
hesitate to obey—or may even openly question—military
commanders when lives are on the line. While immunity “free[s] military commanders from the doubts and
uncertainty inherent in potential subjection to civil
suit,” Saleh, 580 F.3d at 7, “those working alongside
them could be left holding the bag—facing full liability
for actions taken in conjunction with” the military,
Filarsky, 132 S. Ct. at 1666. The fear of such liability
incentivizes contractors to question orders that increase
their legal exposure. See McMahon v. Presidential
Airways, Inc., 502 F.3d 1331, 1348 (11th Cir. 2007)
(noting that imposing liability on wartime activities
19
will “impair essential military discipline”). This creates
a situation where contractors may have to think twice
about whether to perform as contractually required or
seek specific authorization for everything they do,
thereby inhibiting operations. Contractors will ask for
lengthier site investigations, additional resources, and
more time to complete assigned tasks carefully. They
may warn of an order’s danger and suggest safer
alternatives so they can reduce their legal exposure
and point to the military as the proximate cause of any
later injury. They certainly will avoid scenarios such
as those in Carmichael, where a fatigued convoy driver
worked long hours, even though the battlefield may
demand that kind of flexibility. See 572 F.3d at 1285.
Contractors may also spurn military commands that
create new obligations not contemplated in their
contracts. A contractor’s legal exposure can hinge on
the very nuanced question of whether it was acting
within the scope of the government contract. See
Carley v. Wheeled Coach, 991 F.2d 1117, 1120 (3d Cir.
1993); Boyle, 487 U.S. at 515; Br. for United States as
Amicus Curiae, Al Shimari v. CACI Int’l, Inc., No. 091335, 2012 WL 123570, at *17-18 (4th Cir. Jan. 14,
2012). This was commonplace in the most recent
conflicts, where contractors were routinely “placed in
an unenviable position to meet the demands of the
commander * * * in a rapidly changing and nonpermissive environment,” and undertook “extraordinary
efforts to fulfill requests that were not in the original
tasking—yet were crucial to the war effort.” Contractor
Logistics in Support of Contingency Operations 18.
If being asked to perform non-contracted in-scope
services increases the risk of liability, support contractors will have incentives to refuse to adapt to the
military’s changing needs in hostile situations until
they have time to evaluate the liability exposure of
20
new tasks. See Al Shimari, 679 F.3d at 229 (Wilkinson,
J., dissenting) (imposing liability implies that “the
contractors should have paused to consider their potential liability * * * before agreeing to supply the military
needed personnel under the government contract”).
This is compounded when contractors are utilized to
fill a particular need, such as night-time air traffic
control. Badilla, 8 F.4th at 112. Further subjecting
contractors to the Uniform Code of Military Justice
creates an inflexible environment where every action
must be carefully assessed.
This is exactly what the Court feared in Filarsky.
There, the Court extended immunity from tort liability
to contractors performing traditional governmental
functions to “avoid ‘unwarranted timidity’ in performance of public duties.” 132 S. Ct. at 1665. The Court
noted that guarding against “unwarranted timidity” is
“the most important special government immunityproducing concern.” Id. (citation omitted). And it is of
“vital importance regardless whether the individual
sued as a state actor works full-time or on some other
basis” for the government. Id. Courts that have extended
tort liability to battlefield support contractors will
cause them to be exceedingly timid in performing
traditional military functions on the battlefield.
Moreover, lawsuits against support contractors
will inevitably drag American soldiers from foreign
battlefields into domestic courtrooms. Another goal
of immunity is “preventing the harmful distractions
* * * that can accompany damages suits.” Filarsky,
132 S. Ct. at 1665. But lawsuits against contractors
will “often affect any public employees with whom
[contractors] work by embroiling those employees in
litigation.” Id. at 1666. American soldiers will inevitably be “haled into lengthy and distracting court or
21
deposition proceedings * * * where, as here, contract
employees are so inextricably embedded in the military structure.” Saleh, 580 F.3d at 8. These lawsuits
will “interfer[e] with and detract from the war effort”
because they will “burden[] the military and its personnel with onerous and intrusive discovery requests.”
Br. for United States as Amicus Curiae, Carmichael v.
Kellogg, Brown & Root Servs., Inc., No. 09-683, 2010
WL 2214879, at *13 (U.S. May 28, 2010); see also Br.
for United States as Amicus Curiae, Al Shimari v.
CACI Int’l, Inc., No. 09-1335, 2012 WL 123570, at *5
(4th Cir. Jan. 14, 2012) (“Courts should be properly
sensitive to the concern that unfettered discovery
proceedings could affect military readiness.”). The
government’s interests are threatened by the prospect
of “compelled depositions and trial testimony by
military officers concerning the details of their military
commands.” United States v. Stanley, 483 U.S. 669,
682–83 (1987); see also Al Shimari v. CACI Premier
Tech., Inc., 775 Fed. App’x 758, 760–61 (4th Cir. 2019)
(Quattlebaum, J., concurring) (“This proceeding has
allowed discovery into sensitive military judgments
and wartime activities.”).
More troubling is that these lawsuits could pit
contractors and the military against each other. The
litigation would require “members of the Armed Services
and their contractors to testify in court as to each
other’s decisions and actions.” Al Shimari, 679 F.3d at
245 (Wilkinson, J., dissenting) (citation and internal
quotation marks omitted). Trials will “involve secondguessing military orders” in an attempt to determine
“the degree of fault, if any, on the part of the Government’s agents.” Stencel Aero Eng’g Corp. v. United
States, 431 U.S. 666, 673 (1977). This will inevitably
“devolve into an exercise in finger-pointing between
22
the defendant contractor and the military.” Saleh, 580
F.3d at 8.
The long-term effect of such finger pointing will be
to “undermin[e] the private-public cooperation and
discipline necessary for the execution of military
operations.” Al Shimari, 679 F.3d at 245 (Wilkinson,
J., dissenting). Instead of working toward a common
goal, contractors will be forced to treat service members as potential adversaries in a civil suit. They will
be weary to trust soldiers whom they may need to
cross-examine later, further undermining military command. It is “difficult to devise more effective fettering
of a [modern] field commander” than to allow these
lawsuits to proceed. Johnson v. Eisentrager, 339 U.S.
763, 779 (1950).
CONCLUSION
For the forgoing reasons, and for those set forth in
the Petition, the Court should grant the petition for a
writ of certiorari.
Respectfully submitted,
JENNIFER S. ZUCKER
Counsel of Record
CHRISTOPHER M. O’BRIEN
GREENBERG TRAURIG, LLP
2101 L Street, N.W.
Suite 1000
Washington, DC 20037
(202) 331-3114
zuckerjs@gtlaw.com
Counsel for Amicus Curiae
January 10, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.