Taylor v. Kellogg Brown & Root Services, Inc., No. 10-1543
Decided: Sept. 21, 2011
Peter Taylor, a United States Marine stationed in Iraq, was injured when attempting to repair a vehicle “tank ramp” at his base near Fallujah. The main generator for the tank ramp had malfunctioned so Taylor and fellow Marines disabled the primary generator while installing a secondary power source. Meanwhile, Kellogg Brown & Root (KBR) technicians, having been informed that several Marines were working on the gearbox, turned the power back on to the main generator causing severe injuries to Taylor from electrocution. Taylor subsequently sued for negligence. After moving to dismiss for lack of subject matter jurisdiction under the political question doctrine and the “combat activities” exception to the Federal Tort Claims Act (FTCA), KBR informed the district court it would raise a defense of contributory negligence. After limited jurisdictional discovery, the district court granted KBR’s motion to dismiss on both grounds. The district court found that litigating the contributory negligence defense would require the court to decide whether the Marines’ actions were reasonable, venturing into political questions reserved for other branches of government.
The Fourth Circuit affirmed the dismissal under the political question doctrine, citing several factors from Baker v. Carr, 369 U.S. 186, 217 (1962) (“First, an assessment of whether there has been ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department’; [s]econd, whether there is ‘a lack of judicially discoverable and manageable standards for resolving [the question]’; and [f]ourth, whether there is an apparent impossibility of a court’s independent resolution of the question ‘without expressing lack of the respect due to coordinate branches of government.’”). The court held that litigating the contributory negligence defense would inevitably cause the court to question military decisions regarding the base’s tank ramp and the power sources provided for it. These questions are command decisions reserved for the military and not subject to scrutiny by civilian courts. Thus, dismissal was necessary under the political question doctrine.
Finally, because the court dismissed the claim as a nonjusticiable political question, the district court’s ruling that the “combat activities” exception of the FTCA applied was rendered moot as “little more than an advisory opinion on a constitutional question.”
Judge Niemeyer concurred and wrote separately to agree with Judge Shedd’s concurring opinion. Judge Niemeyer agreed that the political question doctrine applied to dismiss the case, but that the claim was also federally preempted.
Judge Shedd concurred in the judgment but was not convinced that the case would “inevitably be drawn into a reconsideration of military decisions.” He therefore did not think the political question doctrine applied. However, citing Al Shimari and Al-Quraishi decided the same day, he argued the “combat activities” exception to the FTCA applied and the action was preempted and subject to dismissal on those grounds because the tort claim infringed on uniquely federal interests.