Peter Taylor, a U.S. Marine, appeals the dismissal of his negligence claim against Kellogg Brown, Root Services, Inc. (KBR) following his electrocution on July 27, 2007, at Marine Camp Fallujah, Iraq. Taylor alleges that KBR's negligence caused his injuries while he was attempting to fix a malfunctioning generator at the Tank Ramp, the only facility for tank maintenance at the Camp. KBR moved for dismissal, claiming lack of subject matter jurisdiction, citing the political question doctrine and the "combat activities" exception under the Federal Tort Claims Act (FTCA). The district court agreed with KBR, leading to the dismissal of Taylor's claim. The appellate court affirmed this dismissal, stating that adjudicating Taylor's claim would involve a political question outside the jurisdiction of federal courts.
On November 23, 2009, KBR filed a Rule 12(b)(1) motion to dismiss Taylor's negligence claim, arguing lack of subject matter jurisdiction on two grounds: (1) the claim involved non-justiciable political questions related to military operations during the Iraq War, and (2) it was preempted by the FTCA's "combat activities" exception under 28 U.S.C. § 2680(j). KBR submitted nine exhibits, including declarations from military personnel and various documents outlining its responsibilities and safety regulations. Taylor's Complaint alleged that KBR, having been informed of Taylor's work on a wiring box and agreeing not to activate the generator, assumed a duty not to turn it on, knowing it could cause serious injury. In response to KBR’s motion, Taylor filed a memorandum on December 4, 2009, arguing that the political question doctrine was inapplicable since the claim was against a private corporation and maintained that military orders acted as constraints on KBR's actions. KBR countered on December 10, asserting that defending against the claim would require questioning military policies. A nonevidentiary proceeding was held on February 1, 2010, where KBR indicated it would assert a contributory negligence defense. The court requested additional information regarding the Tank Ramp characteristics and the military situation in Fallujah, subsequently allowing limited jurisdictional discovery. On February 18, 2010, the court ordered the deposition of Major Randall and required KBR to provide the relevant contract with the Army to both Taylor and the court.
Major Randall's deposition was conducted following the district court’s discovery orders and filed with a Rule 12(b)(1) motion, alongside a map of the Camp, a Freedom of Information Act request related to Taylor's injuries, and the Contract between KBR and the military. KBR submitted a "Supplemental Submission" to the Rule 12(b)(1) motion, discussing the hostilities in Fallujah and asserting its views on the political question doctrine and the FTCA’s combat activities exception. In opposition, Taylor argued that the political question doctrine was inapplicable because: 1) his injuries were not sustained during combat; 2) KBR technicians were not under military control when repairing the Tank Ramp generator; and 3) there was a factual dispute regarding the authorization of wiring box installation by the Marines.
On April 16, 2010, the district court granted KBR’s motion to dismiss, ruling favorably on the political question doctrine and the FTCA’s combat activities exception. The Camp, located fifteen miles from Fallujah, was active with military personnel, including a Marine combat logistics battalion and a Marine Corps regimental combat team, which engaged in combat operations. Major Randall led the Mayor’s Cell, responsible for day-to-day operations, while KBR provided essential support under a Contract awarded on December 14, 2001, to maintain military bases in Iraq. The Contract required KBR to ensure safety during operations and was responsible for maintaining electrical generators at the Camp.
Power supply for the Camp's facilities was derived from a primary power plant or individual generators, with critical facilities allowed to use backup generators only with authorization from the Mayor’s Cell. The Tank Ramp, however, was solely powered by an individual generator without authorization for backup power.
The district court assessed KBR's political question argument, determining that the core issue was whether judicial review would necessitate evaluating military operations or merely the contractor's performance. The court found that Taylor's negligence claim was nonjusticiable, as KBR indicated it would assert a contributory negligence defense. This defense would require scrutiny of military decisions, such as the reasonableness of the Marines' choice to install a wiring box at the Tank Ramp. The court rejected Taylor's claim that KBR's actions could be considered independently of military orders, asserting that doing so would undermine the political question doctrine in contractor lawsuits. Citing the Eleventh Circuit's ruling in Carmichael v. Kellogg, Brown, Root Services, Inc., the court emphasized that KBR operated under military directives, which determined power supply and authorized personnel for maintenance work. The court concluded that evaluating the contributory negligence defense would necessitate examining various military command decisions, rendering it impossible to separate the case from military judgment. Consequently, Taylor's negligence claim was dismissed as presenting a nonjusticiable political question, leading to a judgment in favor of KBR. Taylor filed a timely appeal, arguing that his claim was not barred by the political question doctrine, while KBR contended that the district court's ruling was accurate as it involved military decisions relevant to the claim.
The political question doctrine originates from *Marbury v. Madison*, where Chief Justice Marshall stated that issues designated for the executive branch cannot be adjudicated in court. In *Baker v. Carr*, the Supreme Court established a six-factor test to determine if a claim presents a nonjusticiable political question, of which the first, second, and fourth factors are relevant here. These factors include: (1) whether the issue is constitutionally committed to another political branch; (2) whether there are judicially manageable standards for resolving the question; and (4) whether a court's resolution would disrespect other branches of government. KBR argues that Taylor's negligence claim involves a judicial assessment conflicting with these factors, as it requires evaluating military decisions related to power supply (first factor), lacks judicial standards for assessing the Marines' training (second factor), and could show disrespect to the executive branch (fourth factor).
Although KBR is not part of the military, the relationship between KBR and the military must be analyzed, considering how Taylor could prove his claim and how KBR might defend it. The case of *Tiffany v. United States* offers relevant precedent, wherein a tort claim was deemed nonjusticiable due to national defense interests related to military actions. However, it does not grant the military or its contractors blanket immunity from negligence. The decision implies that while national defense interests are significant, they do not automatically shield military operations from liability. The evaluation of Taylor's negligence claim must therefore consider the extent to which national defense interests are involved, particularly since *Tiffany* did not specifically address claims by servicemen against private contractors in combat situations. Guidance from other circuits is also referenced regarding this issue.
Carmichael’s wife filed a negligence claim against KBR for injuries her husband sustained in Iraq when a KBR truck, driven by a KBR employee, crashed during a military convoy. The court ruled that the claim was barred by the political question doctrine, as the KBR driver was under the "plenary control" of the military, which dictated the convoy's operations, including timing and speed. The court determined that KBR's actions could be viewed as military decisions, meaning that evaluating their reasonableness required consideration of military orders, thereby complicating the negligence claim. The Eleventh Circuit found that adjudicating the claim would involve issues constitutionally assigned to the executive branch, particularly because military judgment heavily influenced the accident's circumstances. Furthermore, it noted the absence of judicially manageable standards to assess KBR's negligence within the framework of military regulations.
In a related case, Lane v. Halliburton, civilian plaintiffs claimed KBR had committed fraud and misrepresentation regarding workplace safety while operating under military orders. The district court initially dismissed these claims as raising nonjusticiable political questions. However, the Fifth Circuit reversed this dismissal, stating that the plaintiffs presented plausible claims that could potentially establish causation without directly questioning military involvement. The court referenced the Carmichael decision as influential, ultimately ruling that Taylor’s negligence claim was similarly barred by the political question doctrine since both parties operated under military orders.
The court emphasized that KBR's operations cannot be viewed independently of military directives regarding electric power supply and personnel for generator work. While the district court correctly noted that Taylor's negligence claim should not be isolated, KBR's compliance with military orders does not exempt the claim from judicial scrutiny. The court must evaluate the degree of military control over KBR and the intertwining of national defense interests with military decisions affecting KBR's actions. Unlike the Carmichael case, where KBR was under direct military control, the current contract assigns KBR responsibility for employee safety and supervisory authority, indicating limited military oversight.
The district court may have erred in concluding that the military's decisions constituted external constraints that would fully remove the political question doctrine from contractor claims. KBR's responsibility for generator maintenance suggests it was largely insulated from direct military control. However, resolving Taylor's negligence claim would necessitate judicial examination of military judgments, particularly regarding the reasonableness of decisions made by the Marines related to generator installation at the Tank Ramp.
This analysis aligns with the Tiffany decision, which indicates such evaluations are beyond judicial review, thus barring the district court from adjudicating Taylor’s claim. Consequently, the applicability of the political question doctrine renders moot the second appellate issue concerning whether Taylor's claim is preempted by the FTCA’s combat activities exception. The court stated that when mootness arises unexpectedly, it typically vacates the moot elements of the lower court's judgment. Since the political question doctrine restricts federal courts from addressing Taylor's claim, any ruling on the FTCA issue would merely be advisory and contrary to the Ashwander doctrine. Therefore, the court vacated the FTCA ruling as it constituted the moot aspect of the district court’s decision.
The court affirms in part and vacates in part the previous ruling. Circuit Judge Niemeyer concurs, asserting that the political question doctrine necessitates dismissal of the case, supported by federal preemption as outlined in Judge Shedd’s opinion and their prior ruling in Al Shimari v. CACI International. Judge Shedd also concurs in the judgment, stating that he does not believe the political question doctrine applies to Peter Taylor's case, emphasizing that resolving it will not lead the court into military decision-making. However, he concurs with the dismissal of Taylor’s negligence claim, noting it is displaced by federal interests under the Federal Tort Claims Act’s combatant activities exception. This exception applies to tort claims arising from civilian contractors involved in wartime activities under military command, which is relevant in this case, as "combatant activities" are defined as those connected to actual hostilities, a standard met here.
