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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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