Taylor v. Kellogg Brown & Root Serv.

• Decision Date: 21 September 2011
• Docket Number: No. 10–1543.,10–1543.
• Citation: 658 F.3d 402
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: Peter TAYLOR, Plaintiff–Appellant,v.KELLOGG BROWN & ROOT SERVICES, INCORPORATED, Defendant–Appellee.

658 F.3d 402

Peter TAYLOR, Plaintiff–Appellant,
v.
KELLOGG BROWN & ROOT SERVICES, INCORPORATED, Defendant–Appellee.

No. 10–1543.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 26, 2010.Decided: Sept. 21, 2011.

[658 F.3d 403]

ARGUED: William Shaw Stickman, Del Sole Cavanaugh Stroyd LLC, Pittsburgh, Pennsylvania, for Appellant. Lawrence S. Ebner, McKenna Long & Aldridge LLP, Washington, D.C., for Appellee. ON BRIEF: Raymond B. Biagini, Lisa M. Norrett, Daniel L. Russell, Jr., McKenna Long & Aldridge LLP, Washington, D.C., for Appellee.Before NIEMEYER, KING, and SHEDD, Circuit Judges.Affirmed in part and vacated in part by published opinion. Judge KING wrote the opinion, in which Judge NIEMEYER joined. Judge NIEMEYER wrote a concurring opinion. Judge SHEDD wrote an opinion concurring in the judgment, in which Judge NIEMEYER joined.OPINION KING, Circuit Judge:

Peter Taylor appeals from the district court's dismissal of his negligence action against Kellogg Brown & Root Services, Incorporated (“KBR”). On July 27, 2007, Taylor, an enlisted United States Marine, was electrocuted and severely injured while serving on an American military base in Iraq. Taylor filed suit in the Eastern District of Virginia, alleging that his injuries were proximately caused by the negligence of KBR, a private contractor of the Army. KBR sought dismissal of Taylor's action for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), contending that his negligence claim is barred by the political question doctrine, or, in the alternative, preempted by the “combat activities” exception to the Federal Tort Claims Act (the “FTCA”). By its decision of April 16, 2010, the district court accepted both of KBR's contentions and dismissed Taylor's negligence claim. See Taylor v. Kellogg Brown & Root Servs., Inc., No. 2:09–cv–341, 2010 WL 1707530 (E.D.Va. Apr. 16, 2010) (the “Opinion”).¹ As explained below, we affirm the judgment on the basis that an adjudication of Taylor's claim against KBR would necessarily implicate a political question, which the federal courts lack jurisdiction to decide. Accordingly, we need not reach the FTCA preemption issue and we vacate that aspect of the district court's Opinion.

I. A.

On July 24, 2009, Taylor initiated this civil action, alleging a single common law

[658 F.3d 404]

negligence claim against KBR.² When the underlying events occurred in July 2007, Taylor was stationed at Marine Camp Fallujah near the city of Fallujah, Iraq (the “Camp”), where he served as a Hospital Corpsman. Inside the Camp were a tank ramp and a related assault vehicle ramp (collectively, the “Tank Ramp”). The Tank Ramp was used for the general maintenance of Marine tanks, amphibious assault vehicles, and humvees, and was the only Camp facility where tank maintenance occurred.

On July 27, 2007, the Tank Ramp's main generator malfunctioned. Because there had been several such power outages, a group of Marines, including Taylor, decided to install a wiring box at the Tank Ramp and hook up their own generator. When the Marines began installing the wiring box, the Tank Ramp's main generator had been turned off. While the Marines were working, however, several KBR technicians arrived at the Tank Ramp to perform repairs. They were promptly advised by the Marines that work was being accomplished on the Tank Ramp's main generator, which was not to be turned on until the Marines confirmed that it was safe to do so. Although the technicians agreed to the Marines' request, one of them nevertheless turned on the main generator while the Marines were working on the wiring box.³ As a result, a powerful electrical current surged through the wiring box where Taylor was working, causing him to be badly electrocuted and suffer severe injuries.

B.

On November 23, 2009, KBR filed its Rule 12(b)(1) motion to dismiss Taylor's negligence claim for lack of subject matter jurisdiction.⁴ KBR's essential assertions were twofold: (1) that adjudication of Taylor's claim would require a judicial assessment of military operations and military decisions made in fighting the Iraq War and thus presented a non-justiciable political question; and (2) that Taylor's claim is preempted by the “combat activities” exception to the FTCA, spelled out in 28 U.S.C. § 2680(j). With the motion's supporting memorandum, KBR filed nine exhibits, including the declarations of the Camp's “Mayor,” Marine Major Omar Randall, and two enlisted Marines.⁵

[658 F.3d 405]

On December 4, 2009, Taylor filed in the district court a legal memorandum opposing KBR's Rule 12(b)(1) motion. Taylor therein contended, inter alia, that the political question doctrine does not apply because his negligence claim was lodged against a private corporation and no decisions of the legislative or executive branches were implicated. More particularly, Taylor maintained that any military orders should be taken as “external constraints” within which KBR's negligent conduct against Taylor could be independently considered. On December 10, 2009, KBR responded to Taylor's opposition, contending that KBR's defenses to Taylor's negligence claim would require the court to second-guess military policies, thus implicating decisions of the executive branch.

On February 1, 2010, the district court conducted a nonevidentiary proceeding concerning KBR's Rule 12(b)(1) motion, and KBR specifically advised the court that it would be presenting a contributory negligence defense.⁶ In response, the court requested additional submissions on two subjects: (1) the characteristics of the Tank Ramp; and (2) the situation on the ground in Fallujah, specifically the nature of the military hostilities, during the relevant time period. The following day, the court entered a conforming order authorizing the parties to conduct limited jurisdictional discovery. Then, on February 18, 2010, the court clarified its February 2 order and directed, inter alia, that the deposition of Major Randall be completed by the end of the month, and that KBR produce, to both Taylor and the court, the relevant contract between KBR and the Army (the “Contract”).

Pursuant to the district court's discovery orders, the parties conducted the deposition of Major Randall, and it was filed in connection with the Rule 12(b)(1) motion. The parties also filed a map of the Camp, a copy of a Freedom of Information Act request regarding Taylor's injuries, and the Contract itself. KBR then made what it called a “Supplemental Submission” on the Rule 12(b)(1) motion, describing the hostilities in Fallujah and the Camp's role therein, and explaining its contentions concerning the political question doctrine and the FTCA's combat activities exception. Taylor made his own supplemental submission opposing the Rule 12(b)(1) motion, maintaining that the political question doctrine was not applicable for at least three reasons: (1) Taylor's injuries had not occurred during a combat operation; (2) KBR technicians were not under the plenary control of the military when they arrived to conduct repairs on the Tank Ramp's main generator; and (3) there was a relevant factual dispute concerning whether the Marines' actions in installing the wiring box were authorized.⁷

C. 1.

By its Opinion of April 16, 2010, the district court granted KBR's Rule 12(b)(1)

[658 F.3d 406]

motion to dismiss, ruling in KBR's favor on both the political question doctrine and the FTCA's combat activities exception. As the Opinion related, the Camp is located approximately fifteen miles outside Fallujah and combat activities were ongoing in 2007. The military forces at the Camp included a Marine combat logistics battalion, a Naval construction regiment, a Marine communications battalion, a Marine transportation company, and Iraqi army units. Other than the Iraqi army units, the Camp housed approximately 5000 personnel, with approximately 1200 of them being members of a Marine Corps regimental combat team. The military units at the Camp were directly involved in combat operations and came under fire at least once or twice a month. Among their other duties, the Marines at the Camp provided support for supply convoys. The day-to-day support functions of the Camp were overseen by a group of Marine personnel called the “Mayor's Cell.” During Taylor's service at the Camp, Major Randall commanded the Mayor's Cell. However, the Camp and its personnel depended on military contractors to keep things running. KBR was one of the several contractors providing support to the military operations at the Camp.

On December 14, 2001, KBR was awarded the Contract to provide maintenance and management support at military bases in Iraq.⁸ The Contract specified that KBR was to provide support for the Multi National Force–Iraq, which serves as “the overall headquarters” of all coalition forces in Iraq. J.A. 371. As such, although the Contract was made with the Army, KBR provided support for non-Army personnel as well. Of relevance here, KBR was obliged to install, inspect, operate, repair, and maintain the electrical generators at the Camp. The Contract delineated a “Statement of Work” for KBR and provided, inter alia, that

[KBR] shall be responsible for safety of employees and base camp residents during all [KBR] operations conducted in accordance with this Statement of Work and the Army and Occupational Safety and Health Administration (OSHA) safety regulations and guidance as it applies to the Iraq Theatre of Operations.Id. at 584–85.

The Camp employed two methods for supplying electric power to its various facilities. The first of those methods, termed “prime power,” utilized a connection to the Camp's primary power plant, while the alternative method involved connecting a particular user to an individual generator. Certain critical facilities of the Camp were authorized to use redundant power sources, typically in the form of secondary and backup generators. The use of such secondary...