572 F.3d 1271 (11th Cir. 2009), 08-14487, Carmichael v. Kellogg, Brown & Root Services, Inc.

Docket Nº:08-14487.
Citation:572 F.3d 1271
Opinion Judge:MARCUS, Circuit Judge:
Party Name:Annette CARMICHAEL, Individually and as Guardian for Keith Carmichael, Keith Carmichael, an incapacitated adult, Plaintiffs-Appellants, v. KELLOGG, BROWN & ROOT SERVICES, INC., Halliburton Energy Services, Inc., et al., Defendants-Appellees.
Attorney:Peter A. Law, Davis Kingsley Loftin, Peter A. Law, P.C., E. Michael Moran, Atlanta, GA, for Plaintiffs-Appellants. Raymond B. Biagini, David Kasanow, Lisa M. Norrett, Lawrence S. Ebner, McKenna, Long & Aldridge, LLP, Washington, DC, Jonathan R. Friedman, Weinberg, Wheeler, Hudgins, Gunn & Dial, L...
Judge Panel:Before MARCUS, KRAVITCH and ANDERSON, Circuit Judges.
Case Date:June 30, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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572 F.3d 1271 (11th Cir. 2009)

Annette CARMICHAEL, Individually and as Guardian for Keith Carmichael, Keith Carmichael, an incapacitated adult, Plaintiffs-Appellants,

v.

KELLOGG, BROWN & ROOT SERVICES, INC., Halliburton Energy Services, Inc., et al., Defendants-Appellees.

No. 08-14487.

United States Court of Appeals, Eleventh Circuit.

June 30, 2009

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Peter A. Law, Davis Kingsley Loftin, Peter A. Law, P.C., E. Michael Moran, Atlanta, GA, for Plaintiffs-Appellants.

Raymond B. Biagini, David Kasanow, Lisa M. Norrett, Lawrence S. Ebner, McKenna, Long & Aldridge, LLP, Washington, DC, Jonathan R. Friedman, Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before MARCUS, KRAVITCH and ANDERSON, Circuit Judges.

MARCUS, Circuit Judge:

At issue today is whether the district court erred in dismissing the plaintiff's negligence suit arising out of an accident in which her husband, a sergeant in the United States Army, was severely injured in May 2004 while serving as an armed escort for a large military convoy traveling through a war zone in Iraq. The district court held that the suit was non-justiciable on political question grounds and dismissed the case for lack of subject-matter jurisdiction. On appeal, the plaintiff contends that the suit does not implicate the political question doctrine because a civilian contractor, and not the military, was responsible for the accident.

After thorough review, we conclude that adjudicating the plaintiff's claims would require extensive reexamination and second-guessing of many sensitive judgments surrounding the conduct of a military convoy in war time-including its timing, size, configurations, speed, and force protection. In addition, we can discern no judicially manageable standards for resolving the plaintiff's claims. Accordingly, we hold that the political question doctrine bars the plaintiff's suit, and we affirm the district court's dismissal for lack of subject-matter jurisdiction.

I. BACKGROUND

A. Factual Background

The tragic accident at the center of this case occurred on May 22, 2004 during a military operation in Iraq. On that day, a military convoy of vehicles had been organized to transport JP-8 fuel from Camp Anaconda, a military base near the town of Balad, Iraq, roughly 45 miles north of Baghdad, to Al Asad, the second largest American air base in Iraq, located in Anbar province, approximately 100 miles west of Baghdad. [Brocket Dep. 126:9-13; Hansen Decl. ¶ 5]. The fuel was carried in tanker trucks operated by Kellogg, Brown

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& Root Services, Inc. (" KBR" ) and Halliburton Energy Services, Inc. (" Halliburton" ),1 civilian corporations that had entered into a contract with the United States Military in 2001 to provide logistical services in connection with its conduct of the war in Iraq.2

These convoy missions were highly dangerous: they unavoidably involved traveling through war zones, frequently exposing them to insurgent attacks in the form of improvised explosive devices (" IEDs" ), small-arms fire, as well as shelling and rocket attacks. [Brocket Dep. 111:3-10]. Indeed, in the two months prior to the May 22 convoy, insurgent attacks had become so severe that convoy missions had been temporarily suspended. [Brocket Dep. 109-12.] As a result, military bases faced fuel shortages, requiring many of them to begin depleting their reserves. [Brocket Dep. 112:5-19]. In light of the urgent need for fuel, the military decided to proceed with the convoy despite the many risks.

Given the inherent dangerousness of these missions, the convoys were heavily militarized. Thus, military gun trucks and Humvees were interspersed among the KBR-operated fuel tankers in convoys. [Brocket Dep. 129: 15-24]. In addition, military escorts such as Sergeant Carmichael, were assigned to ride in the tanker trucks. [Tucker Decl. ¶ 10].

The missions were led by a military convoy commander, or " C-2," in accordance with strict military regulations.3 We discuss these regulations in more detail below. For present purposes, it suffices to note that, as the district court found, the regulations give the military " plenary control" over convoys such as the one at issue here. Carmichael v. Kellogg, Brown & Root Services, Inc., 564 F.Supp.2d 1363, 1368 (N.D.Ga.2008) ( " Carmichael II " ).4 Thus, for example, it is the

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military, not civilian contractors, that decides when convoys are to be arranged, the routes to be traveled, the amount of fuel or other supplies to be transported, the speed at which the vehicles are to travel, the number of vehicles to be included in the convoy, the spacing to be maintained between the vehicles, and the security measures to be employed, and other details of the mission. 5

Prior to departing on May 22, 2004, the military convoy commander informed those participating in the convoy of these and other details concerning the mission. The speed of the convoy was set by the military convoy commander at between 50 and 60 miles per hour, and drivers were instructed to maintain a distance of 100 meters between their vehicles and the vehicles in front of them. Indeed, each vehicle was instructed to follow in the tire tracks of the vehicle ahead of it. Moreover, the military commander explained that the mission was to travel along a roadway referred to as " ASR Phoenix." The route was dreaded by convoy drivers: it was difficult to navigate because of its serpentine path and the poor quality of its surface, and additionally, was the site of frequent insurgent attacks, some of which had resulted in both military and KBR casualties. [Hansen Decl. ¶ 6; Gardner Dep. 35-37 (noting tension among employees resulting from an attack on a convoy roughly one month before Irvine's accident); cf. Lane v. Halliburton, 529 F.3d 548, 555 (5th Cir.2008) (describing claims by KBR truck drivers who alleged that KBR failed to inform them that the convoys in which they were to travel were " subject to a very high risk of insurgent attack" )]. In fact, the convoy's departure on that morning was delayed because an IED had been discovered by a previous convoy and had to be detonated. [Brocket Dep. 19:3-15]. Although plagued with these dangers, the military nonetheless chose ASR Phoenix because it was safer than alternative routes, which, for example, would have required the convoy to travel through Baghdad's industrial district, a particularly dangerous route. [Stonebraker Dep. 147:18-24].

On the day of the accident, the convoy left Camp Anaconda between 7:00 a.m. and 9:00 a.m. The procession included roughly fifteen tankers. [Irvine Dep. 82:13-21]. Given the threat level, the military had

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recently limited the number of commercial vehicles to fifteen per convoy. [Lange Dep. 22:21-25]. Like most convoys, the May 22 convoy was heavily militarized. Interspersed between the tankers were approximately seven military gun trucks. [Brocket Dep. 129:17-24]. The vehicles followed in a single-file line behind the military convoy commander. The sixth tanker was driven by David Irvine.6 [Irvine Dep. 82:18]. Hired by KBR in April 2004, this was approximately Irvine's fifth or sixth convoy, Irvine Dep. 72:21, and he had traveled this particular route on approximately three previous occasions. 7 Irvine's truck was carrying the maximum load, approximately 8,000 gallons of fuel, weighing roughly 80,000 pounds. Irvine Dep. 88:3-89:17. The military commander assigned Sergeant Carmichael as a military escort-or a " shooter," as they are called-to ride in Irvine's vehicle.

After traveling for several hours, the convoy approached ASR Phoenix's first set of dangerous " S-curves." The military gun truck at the head of the convoy alerted the other vehicles via radio that the curves lay ahead. Each of the vehicles traveling ahead of Irvine's successfully negotiated the turns. Irvine made it through the first curve of the S, but as he turned to enter the second curve, the tanker's rear end veered off the road, eventually causing the vehicle to roll over.

After the accident, Irvine was found in the truck, dangling from his seat belt without having sustained serious injury. However, Sergeant Carmichael was thrown from the vehicle and partially pinned beneath it. Rescuers were able to dislodge Sergeant Carmichael after roughly six or seven minutes, and both he and Irvine were subsequently evacuated from the scene by medical personnel. Tragically, Sergeant Carmichael had suffered severe brain injuries due to a lack of oxygen. He has remained in a permanent vegetative state ever since.

Due to the accident, the convoy was halted for roughly ninety minutes. During that time, the convoy encountered no hostile activity. Pursuant to military regulations, the overturned vehicle was set afire and destroyed. The remaining vehicles continued on to Al Asad. Notably, later on in the journey, an IED damaged one of the vehicles and injured a KBR employee. [Brocket Dep. 125:4-13].8

B. Procedural History

On February 1, 2006, Sergeant Carmichael's wife filed suit, individually, and as her husband's guardian, against KBR, Halliburton,

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and Irvine in Georgia state court. The complaint asserted that Irvine had been negligent in, among other things, traveling at an excessive speed under the circumstances, failing to keep a proper lookout, and in failing to inspect his vehicle before operating it. In addition, the complaint sought to hold KBR and Halliburton liable for Irvine's negligence under the doctrine of respondeat superior. Finally, the complaint alleged that KBR was liable for negligent hiring, supervision, training, and retention, as well as for negligently entrusting...

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