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Tort/Negligence – Sovereign Immunity – Military Contractor – Uncovered Pit

Where plaintiffs allege that they were injured when, while driving on Bagram Airfield in Afghanistan, their motor vehicle drove into an excavation ditch, which the defendant-military contractor had left uncovered and unprotected by lights, barricades, warning signs, or other precautionary indications that the pit was uncovered, plaintiffs’ claims are not barred by the political question doctrine, preemption, or derivative sovereign immunity.

The court denies defendant’s motion to dismiss.

Political Question Doctrine

Pursuant to the political question doctrine, the judiciary is deprived of jurisdiction to assess decisions exclusively committed to a separate branch of government. For example, most military decisions lie solely within the purview of the executive branch. However, the fact that a government contractor was acting under orders of the military does not, in and of itself, insulate a claim from judicial review.

In cases involving the civil liability of military contractors for alleged negligence, the Fourth Circuit considers two factors (the Taylor factors, from Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402 (4th Cir. 2011)) to determine whether a court has subject matter jurisdiction: “[F]irst . . . whether the government contractor was under the plenary or direct control of the military (direct control). Second, . . . whether national defense interests were closely intertwined with military decisions governing the contractor’s conduct, such that a decision on the merits of the claim would require the judiciary to question actual, sensitive judgments made by the military. An affirmative response to either of the two [questions] . . . generally triggers application of the political question doctrine.”

A reading of Fourth Circuit jurisprudence teaches the court that (1) the type of “direct control” that implicates nonjusticiability results from the military’s actual control over the specific acts or omissions that form the basis of the plaintiff’s claim, and it is not invoked by mere formal control or general oversight by military authorities respecting the contractor’s activities and (2) the type of questioning, by courts, of “sensitive military judgments” that the political question doctrine abjures is that analysis which purports to assess the reasonableness or prudence of specific military decisions, and nonjusticiability is not implicated by the mere fact of military personnel’s general involvement with integrated contractor operations.

Here, defendant’s contract assigns safety management responsibilities to defendant. The fact that an Army Corps of Engineers agent conducted period inspections indicates that the Corps had formal but not actual control over defendant’s work. The military’s general oversight over defendant’s activities was not of a kind or degree sufficient to trigger Taylor’s direct control factor.

Assuming that defendant can present sufficient evidence that military authorities directed the location of defendant’s excavation trench, there is no evidence of record to establish that any military authority directed the alleged removal of the metal plate that had been covering the excavation trench prior to the accident or the alleged removal/modification of barriers, warning signs, and other precautionary measures that would alert traffic to the impassibility of the road.

Defendant’s motion to dismiss on the basis of the political question doctrine is denied.


The Federal Tort Claims Act operates as a limited waiver of the United States’ sovereign immunity from civil liability. However, pursuant to the combatant activities exception, the United States retains its immunity from “any claim arising out of the combatant activities of the military . . . during time of war.” 28 U.S.C. § 2680(j).

There is little doubt that defendant’s installation and maintenance of electrical systems at Bagram Airfield qualifies as engaging in combatant activities.

However, the evidence is insufficient to establish that defendant was integrated into the Army Corps’ chain of command to a degree such that the military retained command authority over the safety requirements and responsibilities itemized in defendant’s contract. Specifically, the contract set forth duties on the part of defendant to “follow work procedures in accordance with approved Safety Plan, which protect both contractor employees and U.S. soldiers in proximity to the job site” and to “establish a safety zone around the work area and establish a safety system with warning markers and other devices to prevent injuries to pedestrians and others who may be on or near the site.”

The Corps’ general oversight of defendant’s project and periodic compliance inspections do not constitute integration into the chain of command of the type sufficient to warrant preemption under the combatant activities exception.

Derivative Sovereign Immunity

Plaintiffs have clearly alleged, and the available evidence clearly demonstrates, sufficient facts to state a plausible claim premised upon defendant’s failure to comply with its safety responsibilities under its contract. Accordingly, the motion to dismiss is denied in so far as it asserts that defendant is entitled to derivative sovereign immunity.

Motion denied.

Norat v. Fluor Intercontinental, Inc. (Lawyers Weekly No. 002-070-18, 32 pp.) (Bruce Howe Hendricks, J.) 6:14-cv-04902; Kenneth George Goode Jr., Daniel Prenner, David Marvel, Justin Joaquin Arenas and Kenneth Charles Suria for plaintiffs; Kristen Lacombe Nowacki, Megan Marie Early and Robert Daniel Moseley Jr. for defendant. D.S.C.


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