Kellogg Brown & Root Services, Inc. v. Harris

Can the family of a soldier who died when he was electrocuted while showering in a facility constructed by a military contractor sue the contractor for the soldier’s wrongful death?  Kellogg Brown & Root Services, Inc. v. Harris will address this question.  Cases like this are so  fascinating because they are really a gate-keeper issue, that is, they address whether a person can even access the court to present a claim.

The case deals with the Federal Tort Claims Act and began when a military staff sergeant was electrocuted while taking a shower due to an ungrounded wire.  The family sued the contractor for wrongful death that was allegedly to the negligent maintenance by the contractor, Kellogg, Brown & Root Services, Inc.

The merits of the case (whether KBR was negligent) were not decided, and the case was on appeal to determine whether the plaintiffs (the staff sergeant’s estate) (1) had brought a “justiciable” claim (here whether it was a “political question“–which courts will not hear) and (2) whether 28 U.S.C. § 2680(j)‘s exception to the FTCA for “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war” applied in this case.

The district court found that the case was nonjusticiable and, alternatively, that 28 U.S.C. § 2680(j) preempted the wrongful death claim under the FTCA.

Interestingly, as the Third Circuit observed, KBR argued that § 2680 preempted the plaintiffs’ claims rather than created sovereign immunity.  The Third Circuit noted that preemption (other than complete preemption) applies to the merits of the case whereas sovereign immunity applies to jurisdiction.  It then concluded KBR had used the incorrect procedure to dismiss, but that the plaintiffs had not challenged that, so it allowed the case to proceed.  § 2680 is often invoked for sovereign immunity.  While this may seem minor, this affects the court’s analysis as to one of subject matter jurisdiction (Rule 12(b)(1)) or one of failure to state a claim (Rule 12(b)(6)) and could impact how the court has to analyze, and ultimately decide, a case.

The Third Circuit noted that KBR’s political question challenge raised the question of whether one branch of government was intruding on another.  However, it held that a defense contractor does not have “independent constitutional authority” and claims against defense contractors rarely, if ever, implicate a political question.  Nonetheless, a suit against a contractor may be nonjusticiable “because military decisions that are textually committed to the executive lie just beneath the surface of the case.”  For example, wrongful conduct that is the direct result of an order from the military.

The Third Circuit held that in this case KBR’s actions involved a significant amount of discretion and did not necessarily fall into the category of an “unreviewable military decision.”  The Third Circuit held that the plaintiffs’ liability claims regarding negligent installation and maintenance of the electrical grounding did not pose a “political question” that required review of military decisions.

However, if the defenses of KBR present a political question, the case would be dismissed (for example, KBR’s argument that because the military anticipated electrocution and decided to house soldiers in unsafe barracks, it was a “military decision”).

After conducting a review of contributory negligence and comparative fault, the circuit court held that the choice of law (i.e. which state’s tort law applied) would affect the outcome, and it remanded the case for that decision.  It held: “[t]he plaintiffs’ claims are not preempted by the combatant-activities exception [§ 2680] , and it is possible that those claims are not foreclosed by the political-question doctrine.”  Deciding the latter would require which state law applied to determine whether the fact-finder would have to evaluate military decisions.

The Supreme Court has been asked to determine whether (1) statutory combatant activities exception under 28 U.S.C. § 2680(j) preempts the plaintiffs claims against a private defense contractor and/or (2) whether the political question doctrine prohibits the court from hearing those claims.