Aiello v. Kellogg, Brown & Root Services, Inc.
2011 WL 1226878
S.D.N.Y.2011Background
- Aiello, a civilian contractor for DynCorp, alleges he was injured May 18, 2008, in a toilet facility at Camp Shield, a forward operating base in Iraq.
- Kellogg, Brown & Root Services, Inc. provided operation and maintenance services at Camp Shield under the LOGCAP contract and Task Order 139.
- Camp Shield was a combat-adjacent base near Baghdad, with military control and a Mayor's Cell overseeing base operations and Kellogg's work.
- Aiello alleges Kellogg was negligent in design/construction and in washing/warning about a wet, slippery bathroom floor after renovations.
- Kellogg moved to dismiss or for summary judgment on four grounds, including political question, FTCA combatant activities preemption, derivative sovereign immunity, and DPA immunity; the court resolves on the FTCA issue and political question, granting summary judgment on the combatant activities defense.
- The court finds Kellogg integrated into military operations and subject to military command authority, triggering preemption under the combatant activities exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the suit is barred as a political question | Aiello argues the court can adjudicate the tort claims without reviewing military policy decisions. | Kellogg contends the case implicates military decisions and thus presents a nonjusticiable political question. | Not barred; justiciable. |
| Whether the combatant activities exception preempts the claim | Aiello contends state tort law governs and is not preempted by combatant activities. | Kellogg argues FTCA combatant activities preempts negligent claims arising from military operations. | Preempted; state tort law does not apply. |
Key Cases Cited
- Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (unique federal interests; discretionary function analog for preemption of contractor liability)
- Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009) (combatant activities is broader than discretionary function; field preemption in wartime)
- Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992) (expands or narrows combatant activity test; connectivity to hostilities)
- Johnson v. United States, 170 F.2d 767 (9th Cir. 1948) (combatant activities include necessary to and in direct connection with hostilities)
- Harris v. Kellogg Brown & Root Services, Inc., 618 F. Supp. 2d 400 (W.D. Pa. 2009) (maintenance-related claims not necessarily combatant activities)
- Lane v. Halliburton, 529 F.3d 548 (5th Cir. 2008) (nonjusticiability threshold not met if not inevitably military decision review)
- McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (11th Cir. 2007) (courts reluctant to dismiss at mere possibility of political question)