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Negligence Claims Raised Nonjusticiable Political Questions

A dismissal of negligence claims against a contractor and its employee was affirmed by the Court of Appeals for the Eleventh Circuit because the action presented nonjusticiable political questions. The plaintiff was the spouse and guardian of a soldier who suffered severe brain injuries when a fuel tanker overturned while traveling in a military convoy through a war zone in Iraq. The tanker driver was an employee of a contractor that provided logistical services to the military. The federal district court dismissed the plaintiff's negligence claims against the driver and contractor for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, after concluding the action raised political questions.
Expertise and Judgment

The political question doctrine excludes from judicial review actions that raise policy choices and value determinations made by Congress and the executive branch. The district court correctly found two of six factors set forth in Baker v. Carr (369 US 186) applied to the suit. A finding of any one factor indicates the presence of a political question. First, there was "a textually demonstrable constitutional commitment of the issue to a coordinate political department." Decisions requiring expertise and judgment entrusted to the military in a time of war governed the planning and execution of virtually every aspect of the convoy. The contractor played no role in any of the decisions, which ranged from balancing risk and efficiency in deciding to use a civilian contractor, and balancing the risks against the need for fuel in deciding to organize the convoy, to tactical decisions regarding the convoy's time of departure, speed, route, quantity of fuel transported, number of vehicles, distance between vehicles, and security measures. Decisions "concerning how to safely deliver vital military supplies through hostile territory in war time ... [are] essentially professional military judgments." Second, the case presented issues that were not susceptible to resolution by "judicially discoverable and manageable standards." In determining whether the standard of care had been breached, the district court correctly framed the appropriate question as "what a reasonable driver subject to military control over his exact speed and path would have done." However, courts "lack standards with which to assess whether reasonable care was taken to achieve military objectives while minimizing injury and loss of life." In addition, the dangerousness of the circumstances made it problematic to answer basic questions about duty and breach, and it would be impossible to determine the driver's liability without determining the military's liability. (Carmichael v. Kellogg, Brown & Root Service, Inc., et al., CA-11, 53 CCF 79,137)



(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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