Harris v. Kellogg, Brown & Root Servs., Inc.

Citation878 F.Supp.2d 543
Decision Date13 July 2012
Docket NumberCivil Action No. 08–563.
CourtU.S. District Court — Western District of Pennsylvania
PartiesCheryl A. HARRIS, Co–Administratrix of the Estate of Ryan D. Maseth, deceased, and Douglas Maseth, Co–Administrator of the Estate of Ryan D. Maseth, deceased, Plaintiffs, v. KELLOGG, BROWN & ROOT SERVICES, INC., Defendant.

878 F.Supp.2d 543

Cheryl A. HARRIS, Co–Administratrix of the Estate of Ryan D. Maseth, deceased, and Douglas Maseth, Co–Administrator of the Estate of Ryan D. Maseth, deceased, Plaintiffs,

Civil Action No. 08–563.

United States District Court,
W.D. Pennsylvania.

July 13, 2012.

[878 F.Supp.2d 546]

Patrick K. Cavanaugh, Stephen J. Del Sole, William S. Stickman, IV, Del Sole Cavanaugh Stroyd LLC, Pittsburgh, PA, for Plaintiffs.

Daniel L. Russell, Kurt J. Hamrock, Lawrence S. Ebner, Raymond B. Biagini, Shannon G. Konn, Washington, DC, Joseph L. Luciana, III, John R. Dingess, Kari M. Horner, William Wickard, Pittsburgh, PA, William J. Sayers, McKenna Long & Aldridge LLC, Los Angeles, CA, for Defendant.



Plaintiffs, the parents and administrators of the Estate of Staff Sergeant Ryan Maseth, seek damages against government contractor Kellogg, Brown and Root Services, Inc. (“KBR”), claiming that KBR's alleged negligence in the performance or non-performance of electrical services at a military base during the Iraq War was the proximate cause of his electrocution and death while showering at the Radwaniyah Palace Complex (“RPC”). (Docket No. 209). The crux of Plaintiffs' case is that KBR failed to employ certain safety procedures in conjunction with electrical maintenance services it provided at the RPC. ( Id.). The use of grounding and bonding techniques as suggested by Plaintiffs is standard practice by electricians in the United States and other Western countries. ( Id.). According to Plaintiffs, the use of these safety precautions may have prevented their son's death, which they maintain resulted from the failure of a water pump installed without it being grounded or bonded. ( Id.). KBR does not challenge the merits of Plaintiffs' claims at this time. Instead, KBR has filed a renewed motion to dismiss, arguing that this case is barred by the political question doctrine under Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and, alternatively, that Plaintiffs'

[878 F.Supp.2d 547]

claims are preempted by the combatant activities exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(j). (Docket No. 260).

This Court previously denied a motion to dismiss brought by KBR raising these same defenses, holding that, as pled, Plaintiffs' claims did not raise non-justiciable political questions and were not preempted by the combatant activities exception. See Harris v. Kellogg, Brown & Root Services, Inc., 618 F.Supp.2d 400 (W.D.Pa.2009). The United States Court of Appeals for the Third Circuit dismissed KBR's appeal of this decision without addressing the merits and the case was remanded to this Court. Harris v. Kellogg, Brown & Root Services, Inc., 618 F.3d 398 (3d Cir.2010). Upon remand, the parties were ordered to conduct discovery regarding Plaintiffs' claims and KBR's defenses, which they did. Extensive discovery has been undertaken by the parties. KBR's renewed motion to dismiss has been fully briefed and argued by the parties. ( See Docket Nos. 260–279, 282–285, 294).

The Court has carefully considered all of the parties' arguments and the detailed factual record in this case. ( See id.). After conducting a “discriminating inquiry into the precise facts” of this case as established through a lengthy period of discovery and having heard the parties' arguments outlining the claims and defenses that they intend to present at trial, the Court finds that further adjudication of this dispute will inextricably lead to consideration of sensitive military judgments for which no judicially manageable standards exist. Baker, 369 U.S. at 217, 82 S.Ct. 691. Specifically, further adjudication of this case will require evaluation of the military's decision to continue to house soldiers in hardstand buildings with hazardous electrical systems even though the military was aware that the buildings lacked grounding and bonding and the military possessed specific knowledge that such electrical deficiencies had resulted in electrocutions to military personnel, causing injuries and even deaths, prior to the events of this case.

The Court finds that the issues which Plaintiffs seek to try—whether KBR was negligent in failing to install grounding and bonding features on the malfunctioning water pump, failing to install grounding and bonding features on the electrical system, or failing to properly bond the pipes at Legion Security Forces Building 1 (“LSFB1”)—cannot be answered without first considering the wisdom of military judgments, thus taking this case beyond judicial review. In this Court's view, KBR has also presented sufficient evidence from which it may legitimately argue that the military exposed soldiers to what its commanders determined to be an acceptable level of risk after considering all of the other hazards of war which were faced by soldiers in the Iraq war theatre and its ability to fund the electrical upgrades and safety features which are admittedly standard here in the United States. ( See Def. Ex. 2, Docket No. 263–2:11; Def. Ex. 6, Docket No. 263–15; Def. Ex. 7, Docket No. 263–16; Def. Ex. 22, Docket No. 263–33; Def. Ex. 24, Docket No. 263–35). This evidence supports its position that despite the known risk presented by electrical deficiencies at the RPC, the military did not contractually require KBR or prior contractors to complete upgrades to the electrical facilities there. (Def. Ex. 26, Docket No. 263–37:48; Def. Ex. 43, Docket No. 263–69; Pl. Ex. A, Docket No. 266). The military also declined KBR's offer to upgrade the electrical facilities for cost reasons. (Docket Nos. 262 at ¶ 135; 265 at § I, ¶ 135).

The level of safety provided to soldiers at a military base is a decision which

[878 F.Supp.2d 548]

is constitutionally committed to members of the Executive Branch while the funding of the military is constitutionally committed to the Legislative Branch. See Lane v. Halliburton, 529 F.3d 548, 559 (5th Cir.2008) (“[T]he Constitution commits to Congress the power to raise and support an army and navy, and to the Executive the responsibilities of commanding those armed forces.”). In this Court's estimation, following the Supreme Court's dictates in Baker, the judgments of these officials on such sensitive military and legislative policy issues cannot be evaluated in a court of law without violating the doctrine of separation of powers.

For these reasons, and as is further detailed below, the Court now concludes that this case is barred by the political question doctrine and preempted by the combatant activities exception to the FTCA and must be dismissed.


The factual record in this case is extensive. As much of the evidence was previously considered by the Court in the decision denying KBR's initial motion to dismiss, see Harris, 618 F.Supp.2d at 403–15, the Court recounts here only those facts necessary to resolve the pending motion.

A. The RPC and LSFB1

KBR's provision of operations and maintenance services to the United States Army during the Iraq War pursuant to the Logistics Civil Augmentation Program (“LOGCAP”) is central to this case. (Docket Nos. 262 at ¶¶ 1–10; 265 at § I, ¶¶ 1–10). As noted, the relevant events occurred at the RPC. (Docket Nos. 262 at ¶¶ 28–30; 265 at § I, ¶¶ 28–30). The RPC was the headquarters for Special Operations Forces operating in Iraq. (Docket Nos. 262 at ¶ 29; 265 at § I, ¶ 29). The military had overall responsibility for, and authority and control of, the activities and operations that took place at the RPC, including the decisions as to which buildings were used as housing. (Def. Ex. 7, Docket No. 263–16, Satterfield Depo at 102 (“Commanders authorize soldiers, and when I say commanders I'm talking now all services, told the troops where they were allowed to live or not live.”); Docket Nos. 262 at ¶¶ 51–52; 265 at § I, ¶¶ 51–52).

The RPC consists of approximately 144 separate buildings. (Docket Nos. 262 at ¶ 125; 265 at § I, ¶ 125). Due to its size, the RPC was divided into compounds or areas. (Docket Nos. 262 at ¶ 46; 265 at § I, ¶ 46). One such area was known as the Legion Security Forces Compound (“LSF”). Id. Staff Sergeant Maseth was housed in one of the buildings within the LSF, known as LSFB1. Id. Other inhabitants of the LSF buildings were Special Forces troops who conducted midnight raids on enemy forces or provided security at the heavily-guarded entry control point which was located near LSFB1. (Docket Nos. 262 at ¶¶ 35–39, 47; 265 at § I, ¶¶ 35–39, 47). The soldiers housed in the LSF buildings also provided intelligence for the war effort in Iraq. (Docket Nos. 262 at ¶ 38; 265 at § I, ¶ 38).

The RPC buildings were initially constructed by Iraqis prior to the U.S. led invasion of Iraq. (Docket Nos. 262 at ¶ 45; 265 at § I, ¶ 45). The military referred to these buildings as “hardstands.” ( Id.). Some of the buildings had internal restroom and shower facilities which were likewise constructed by Iraqis. ( See Docket Nos. 262 at ¶¶ 70, 172, 178, 187; 265 at § I, ¶¶ 70, 172, 178, 187). Soldiers living in these buildings often showered in these facilities. ( Id.). LSFB1 had two such internal restroom facilities which were used by the inhabitants. ( See Def. Ex. 31, Docket No. 263–54 at 14, Figure 2, Floor

[878 F.Supp.2d 549]

Plan of LSFB1). However, there were containerized showering facilities known as ablution units, which were made available to soldiers at the RPC. (Docket Nos. 262 at ¶ 49; 265 at ¶ 49). Military commanders were responsible for directing soldiers to use ablution units, if they deemed it appropriate. (Def. Ex. 7, Docket No. 263–16, Satterfield Depo at 102–104). As a contractor, KBR had no authority to order military personnel to do anything, including to direct soldiers where to live or shower. (Docket Nos. 262 at ¶¶ 54–55; 265 at § I, ¶¶ 54–55).

B. Renovations to LSF Buildings by

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