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Harris v. Kellogg Brown & Root Services, Inc.

United States Court of Appeals, Third Circuit

August 1, 2013

CHERYL HARRIS, Co-Administratrix of the Estate of Tyan D. Maseth, deceased; DOUGLAS MASETH; Co-Administrator of the Estate of Ryan D. Maseth, deceased, Appellants

Argued May 14, 2013

On Appeal from the United States District Court for the Western District of Pennsylvania District Court No. 2-08-cv-00563 District Judge: The Honorable Nora B. Fischer

Patrick K. Cavanaugh, Stephen J. Del Sole, William S. Stickman, IV [ARGUED], Del Sole Cavanaugh Strotd, Counsel for Appellant

Raymond B. Biagini, Michelle L. Hylton, Lawrence S. Ebner [ARGUED], Kurt J. Hamrock, Shannon G. Konn, Daniel L. Russell, Jr., William J. Sayers, McKenna, Long & Aldridge, John R. Dingess, Kari Horner, Dingess, Foster, Luciana, Davidson & Chleboski, William D. Wickard K&L Gates, Counsel for Appellee

Before: SMITH, FISHER, and CHAGARES, Circuit Judges


SMITH, Circuit Judge.

This case returns to us for resolution of the "important questions about the scope of the political question doctrine and the Federal Tort Claims Act's 'combatant activities' exception" in suits against defense contractors. We did not have the opportunity to reach these issues when this case was before us previously. Harris v. Kellogg, Brown & Root Servs., Inc., 618 F.3d 398, 399 (3d Cir. 2010). Having jurisdiction now to reach these questions, we will provide a framework that establishes the contours of each of these doctrines. And while explaining the two frameworks can be simple, applying them is complicated by a number of case-by-case factors. Illustrating this is our conclusion that one such crucial factor still needs to be decided before the political-question doctrine aspect of this case can be resolved: which state's law controls the claims and defenses presented. This, in addition to our conclusion that the combatant-activities exception does not preempt the plaintiffs' claims, requires that we reverse and remand to the District Court for further proceedings.


During the Iraq War, the United States military established the Radwaniyah Palace Complex as a base of operations. Staff Sergeant Ryan Maseth was stationed there and assigned to live in the barracks called Legion Security Forces Building 1, a building that predated the war and was known to have significant electrical problems. On January 2, 2008, Staff Sergeant Maseth died by electrocution while taking a shower in his barracks. The shower was electrified by an ungrounded and unbonded water pump.

Staff Sergeant Maseth's estate and his parents sued Kellogg, Brown & Root Services ("KBR"), a military contractor hired to perform certain maintenance services at the barracks. They allege that KBR caused Staff Sergeant Maseth's death by negligently performing its maintenance duties under two contracts with the United States. According to the plaintiffs, these contracts set standards of care for work performed under them, which KBR did not meet because it failed to ground and bond the water pump either when KBR installed it or responded to work orders complaining of electrified water in Staff Sergeant Maseth's barracks.

The merits of the plaintiffs' claims have not yet been resolved. Instead, KBR raises two antecedent challenges through a Rule 12(b)(1) motion to dismiss. First, KBR argues that the District Court should not exercise its proper 28 U.S.C. § 1332 diversity jurisdiction because this case presents a nonjusticiable political question. Second, KBR argues that the plaintiffs' claims are preempted by the federal policy underlying the combatant-activities exception in 28 U.S.C. § 2860(j) to the United States' waiver of sovereign immunity for torts.

The District Court first denied the motion before extensive discovery took place. Harris v. Kellogg, Brown & Root Servs., Inc., 618 F.Supp.2d 400, 403 (W.D. Pa. 2009). KBR sought review of this denial through an interlocutory appeal under the collateral-order doctrine, which we dismissed for lack of appellate jurisdiction. Harris, 618 F.3d at 400, 404. On remand, the District Court ordered discovery on the plaintiffs' claims and KBR's defenses. After discovery was mostly complete, KBR renewed its Rule 12(b)(1) motion to dismiss. This time, the District Court granted the motion, holding that the case was nonjusticiable and—alternatively—that the plaintiffs' claims were preempted by the federal policy embodied in § 2680(j). Harris v. Kellogg, Brown & Root Servs., Inc., 878 F.Supp.2d 543, 547–58 (W.D. Pa. 2012). The plaintiffs appeal the dismissal, and this Court has jurisdiction under 28 U.S.C. § 1291.


Jurisdictional and justiciability questions must be resolved before a court reaches the merits of a case. Larsen v. Senate of Com. of Pa., 152 F.3d 240, 245–46 (3d Cir. 1998); see also Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007) ("Jurisdiction is vital only if the court proposes to issue a judgment on the merits."). Whether a case contains a political question is a matter of justiciability. Gross v. German Found. Indus. Initiative, 456 F.3d 363, 376 (3d Cir. 2006). Absent complete preemption, whether a plaintiff's claims are preempted relates to the merits. See In re U.S. Healthcare, Inc., 193 F.3d 151, 160 (3d Cir. 1999) (explaining that "ordinary preemption" arises only "as a federal defense to a state-law claim"). Neither party argues, and no court has held, that § 2860(j) combatant-activities preemption constitutes complete preemption. Accordingly, we must review the District Court's political-question holding before addressing its preemption holding.[1]

A. The Political-Question Doctrine

KBR asserts its political-question argument as a factual challenge to the District Court's jurisdiction. See Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) ("A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction."). In such a challenge, the burden of proving that jurisdiction exists lies with the plaintiff, and "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Furthermore, "no presumptive truthfulness attaches to plaintiff's allegations, " and when jurisdiction is intertwined with the merits, "the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id.

We exercise plenary review over the District Court's legal conclusions but review its factual findings for clear error. CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008). Here, the plaintiffs challenge both factual findings and legal conclusions. The plaintiffs' factual arguments, however, are without merit because the Court did not make the factual findings they argue that it did.[2]We will thus exercise plenary review over the District Court's legal conclusion that this case presents a nonjusticiable political question.

A case presents a nonjusticiable political question when one of the following characteristics is "inextricable from the case":

(1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) or a lack of judicially discoverable and manageable standards for resolving it; (3) or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (4) or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; (5) or an unusual need for unquestioning adherence to a political decision already made; (6) or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. 186, 217 (1962). KBR argues that resolving the plaintiffs' claims will require judicial intrusion into issues textually committed to the executive, present issues that lack judicially manageable standards, and express a lack of respect due to coordinate branches of government. Assessing this argument requires a "discriminating inquiry into the precise facts and posture of the particular case, " id., in a level of detail and complexity that is rare even in the political-question context.

Often, when the political-question doctrine is asserted, nonjusticiability arises from the possibility that one branch of government has exceeded its powers and the court must decide whether it has the authority and competence to regulate the alleged abuse. See, e.g., Zivotofsky v. Clinton, 132 S.Ct. 1421, 1430–31 (2012) (holding that determining whether a statute allowing Americans born in Jerusalem to indicate Israel as their place of birth, which was argued to represent a congressional infringement on executive prerogatives, was not a political question). As such, when deciding whether a case presents a political question, we rarely need to look beyond the complaint and any of its obvious implications.

This is not so with complaints against defense contractors. Defense contractors do not have independent constitutional authority and are not coordinate branches of government to which we owe deference. See Taylor v. Kellogg, Brown & Root Servs., Inc., 658 F.3d 402, 409 (4th Cir. 2011) (recognizing that "KBR is not a part of the military"). Consequently, complaints against them for conduct that occurs while they are providing services to the military in a theater of war rarely, if ever, directly implicate a political question. Nonetheless, these suits may present nonjusticiable issues because military decisions that are textually committed to the executive sometimes lie just beneath the surface of the case. For example, a contractor's apparently wrongful conduct may be a direct result of an order from the military, Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1281–83 (11th Cir. 2009) (holding that a nonjusticiable issue is introduced when contractor-caused harm was a result of following orders from a convoy commander), or a plaintiff's contributory negligence may be directly tied to the wisdom of an earlier military decision, Taylor, 658 F.3d at 411–12 (holding that a nonjusticiable issue is introduced when contributory negligence is based on the plaintiff's disregard of an earlier military decision). In these situations, the political question appears not from the plaintiff's claims but from the broader context made relevant by a contractor's defenses. As such, to avoid infringing on other branches' prerogatives in war-time defense-contractor cases, courts must apply a particularly discriminating inquiry into the facts and legal theories making up the plaintiff's claims as well as the defendant's defenses. Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir. 2008) ("We must look beyond the complaint, considering how the Plaintiffs might prove their claims and how KBR would defend.").

1. Textual Commitment

The Fifth and Eleventh Circuits have provided a helpful framework for deciding whether a suit against a defense contractor contains issues textually committed to another branch. Because defense contractors are not coordinate branches of government, a determination must first be made whether the case actually requires evaluation of military decisions. If so, those military decisions must be of the type that are unreviewable because they are textually committed to the executive. See id. at 560; McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1359–60 (11th Cir. 2007).[3] According to KBR, this case would require judicial review of the military's decisions about where to house soldiers on a battlefield—decisions that are unreviewable because they involve strategic calculi about how best to defend against threats. See McMahon, 502 F.3d at 1359 ("'The strategy and tactics employed on the battlefield are clearly not subject to judicial review.'" (quoting Tiffany v. United States, 931 F.2d 271, 277 (4th Cir. 1991)). Consequently, the parties have focused on the first element of the framework: whether the plaintiffs' claims can be resolved without evaluating these military decisions.

Military control over a contractor's actions is one common way that evaluation of strategic military decisions becomes necessary. Military control requires evaluation of military decisions because if the contractor is simply doing what the military ordered it to do, then review of the contractor's actions necessarily includes review of the military order directing the action. See Carmichael, 572 F.3d at 1281–83 (holding that a suit for damages arising from a convoy crash included a nonjusticiable issue because of the degree of control the military had over the convoy, such as selection of path, speed, and distance between vehicles). However, where the military does not exercise control but merely provides the contractor with general guidelines that can be satisfied at the contractor's discretion, contractor actions taken within that discretion do not necessarily implicate unreviewable military decisions. See McMahon, 502 F.3d at 1360–61 (holding that a defense contract for aviation transportation in Afghanistan did not include sufficient military control to introduce a political question because the contractor retained authority over the type of plane, flight path, and safety of the flight).

In this case, the contracts between the military and KBR fit within the latter category. They provide KBR with significant discretion over how to complete authorized work orders. This discretion is best evidenced by the lack of detailed instructions in the work orders[4]and the lack of military involvement in completing authorized work orders. See id. Military control over ...

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