Cheryl Harris v. Kellogg Brown & Root Services
2013 U.S. App. LEXIS 15829
| 3rd Cir. | 2013Background
- Staff Sergeant Ryan Maseth died by electrocution in a shower at the Radwaniyah Palace Complex in Iraq; the shower was electrified by an ungrounded/unbonded water pump. Plaintiffs (estate and parents) sued KBR, the contractor that installed/maintained base facilities, alleging negligent performance of two contracts.
- KBR moved to dismiss under Rule 12(b)(1), arguing (1) the political-question doctrine bars adjudication and (2) plaintiffs’ claims are preempted by the FTCA combatant-activities exception, 28 U.S.C. § 2680(j). The district court granted dismissal on both grounds; plaintiffs appealed.
- The Third Circuit reviews the political-question holding before preemption, rejects treating ordinary preemption as a Rule 12(b)(1) jurisdictional attack, but proceeds to decide both doctrines’ contours.
- Key factual disputes: whether KBR installed or worked on the pump; what contractual standards of care applied; whether military retained operational control or shared/retained responsibility for housing and maintenance. Those facts drive both political-question analysis and preemption.
- Court holds § 2680(j) (combatant-activities) does not preempt plaintiffs’ claims because (a) maintenance of barracks is a combatant-related activity but (b) the military did not retain command authority over KBR’s discretionary, performance-based work. Political-question outcomes depend on which state law governs (Pennsylvania, Tennessee, or Texas). The case is remanded for choice-of-law and further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the political-question doctrine bars the suit | Maseth’s estate: claims are justiciable; liability focuses on KBR’s contractual duties and contractor discretion | KBR: resolution would require reviewing strategic military decisions (housing/maintenance), a nonjusticiable political question | Remand for choice-of-law; if Pennsylvania law applies, no political-question bar. If Tennessee or Texas apply, proportional-liability or contributory-negligence defenses may create nonjusticiable issues requiring trimming of damages or dismissal depending on findings. |
| Whether KBR’s assumption-of-the-risk defense requires resolving political questions | Plaintiffs: voluntariness and knowledge are factual and do not implicate military judgment | KBR: voluntariness implicates military decisions about available alternative facilities | Assumption-of-risk is justiciable; availability/awareness of alternatives is a factual question that does not force second-guessing military strategy. |
| Whether KBR’s proximate-cause / sole-cause defenses require political-question dismissal | Plaintiffs: proximate-cause attacks are attenuated and factual | KBR: military maintenance/housing decisions were the (sole or substantial) proximate cause, requiring evaluation of military judgments | KBR may prove sole-cause by factual showings without reexamining military wisdom. But apportionment of fault under proportional-liability regimes (TX/TN) would require evaluating military decisions and thus raise political-question issues; under Pennsylvania joint-and-several rule, no political-question bar. |
| Whether § 2680(j) combatant-activities preempts plaintiffs’ state-law claims against KBR | Plaintiffs: contractor claims are not preempted because KBR acted under discretionary, performance-based contracts without military command authority | KBR: combatant-activities immunity embodies a broad federal policy barring suits arising out of wartime activities; contractor claims should be preempted when related to combatant activities | Court adopts a command-authority test (D.C. Circuit approach): preemption requires (1) contractor integrated into combatant activities and (2) contractor acting under military command authority. Here integration exists but command authority over KBR’s discretionary maintenance does not; claims are not preempted. |
Key Cases Cited
- Baker v. Carr, 369 U.S. 186 (1962) (political-question factors framework)
- Boyle v. United Techs. Corp., 487 U.S. 500 (1988) (FTCA exceptions can imply federal preemption of contractor suits; three-part test for discretionary-function preemption)
- Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992) (combatant-activities exception interpreted narrowly by Ninth Circuit)
- Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009) (combatant-activities preemption test requiring integration into combat activities plus military command authority)
- Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271 (11th Cir. 2009) (defense-contractor cases may become nonjusticiable when contractor conduct follows military orders under command control)
- Taylor v. Kellogg, Brown & Root Servs., Inc., 658 F.3d 402 (4th Cir. 2011) (political-question dismissal where contributory-negligence defense required reviewing military decisions)
- Fisher v. Halliburton, 667 F.3d 602 (5th Cir. 2012) (procedural posture and standards for preemption and political-question claims in contractor suits)
- Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007) (jurisdictional considerations and merits sequencing)
- Powell v. McCormack, 395 U.S. 486 (1969) (courts can shape remedies separately from justiciability of duties)