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Wrongful Death Claims Did Not Raise Non-Justiciable Questions

A contractor's motion to dismiss wrongful death and survival claims was denied by the District Court for the Western District of Pennsylvania because the action did not present nonjusticiable political questions. The plaintiffs were the executors of the estate of a soldier who died in Iraq after a water pump short-circuited and electrocuted him as he showered in military housing. The contractor provided facility maintenance services, pursuant to a task order issued under the Logistics Civil Augmentation Program, at the military base where the death occurred. The plaintiffs alleged the contractor's negligence proximately caused the soldier's death. The contractor moved to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing the action raised political questions and the court therefore lacked jurisdiction. The political question doctrine excludes from judicial review those actions that raise policy choices and value determinations made by Congress and the executive branch. In determining whether an issue involves a political question, federal courts apply six factors set forth by the Supreme Court in Baker v. Carr (369 US 186). A finding of any one of the six factors indicates the presence of a political question. The contractor relied on several of these factors in moving to dismiss the case.

Contractor's Conduct

First, the contractor argued the matter involved an issue that was "a textually demonstrable constitutional commitment ... to a coordinate political department." According to the contractor, the "military's establishment, operation, and maintenance of bases located in hostile foreign countries are inherently non-justiciable political issues constitutionally committed to the political branches." However, the plaintiffs' claims did not question military decision-making, but instead focused on the contractor's performance of its contractual obligations and how the contractor's conduct may have led to the soldier's death. The contractor maintained exclusive control over its employees and exercised discretion in assessing problems identified by the military, and the military did not supervise or inspect any of the repairs performed by the contractor. Under these circumstances, the claims did not directly implicate professional military judgments. The contractor also argued that under a second Baker factor, the case presented issues that are not susceptible to resolution by "judicially discoverable and manageable standards." However, the court did not need to examine inherently military activities but rather could apply traditional tort principles to determine if the contractor's negligence in failing to inspect facilities and fix electrical hazards was the proximate cause of the soldier's death. It was well within the court's competence to apply negligence standards to the factual situation before it. Moreover, the plaintiffs sought money damages and not injunctive relief, which may have required the court to examine the military's operational decision-making.
No Potential Embarrassment
The contractor further argued the case presented policy determinations beyond the court's judicial discretion, including the government's decision to contract for military support services. But as with the first two factors, the court could resolve the issues presented without implicating military judgments or determinations. Finally, the contractor raised the Baker factor that precludes judicial review where an issue may lead to "embarrassment" or lack of respect for another branch of government. According to the contractor, there was a potential for embarrassment because the executive and legislative branches were conducting investigations into the soldier's death. Those investigations, however, related to criminal inquiries and the contractor's performance under the LOGCAP contract. The investigations did not involve any claims for money damages, as in the instant case. As for potential embarrassment to the military, the government chose not to intervene in the case and did not express any concerns to the court. Accordingly, the court could not violate the principle of separation of powers in resolving the merits of the claims. (Harris, et al. v. Kellogg, Brown & Root Services, Inc., DC WD Penn, 53 CCF ¶79,088)

(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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