Tort Suits Against Federal Contractors: An Overview of the Legal Issues

Tort Suits Against Federal Contractors: An Overview of the Legal Issues

Tort Suits Against Federal Contractors:
An Overview of the Legal Issues
Vivian S. Chu
Legislative Attorney
Kate M. Manuel
Legislative Attorney
April 7, 2011
Congressional Research Service
7-5700
www.crs.gov
R41755
CRS Report for Congress
P
repared for Members and Committees of Congress

Tort Suits Against Federal Contractors: An Overview of the Legal Issues

Summary
Pending litigation and judicial decisions in recent tort suits filed by U.S. civilian and military
personnel, other U.S. persons, and other parties against federal contractors have prompted
congressional and public interest. Many of these suits allege that contractors were negligent or
committed fraud or intentional torts (e.g., false imprisonment, infliction of emotional distress) in
the course of providing services in support of combat operations in Iraq and Afghanistan.
There has been particular interest in cases that have been dismissed on jurisdictional grounds, or
because a federal court does not have power over the parties or subject matter. Personal
jurisdiction over the defendant appears to be a particular issue in cases where the injury occurred
while the contractor and U.S. persons worked for the government abroad. For example, courts
recently disagreed as to whether they could exercise specific jurisdiction over contractors who
allegedly exposed members of the National Guard to toxic chemicals at the Qarmat Ali water
treatment plant in Iraq. Similarly, courts recently held that they cannot, absent additional contacts
between the contractor and the forum state, exercise general jurisdiction over a contractor in any
state from which the government administers the contract.
The court’s subject matter jurisdiction can also be challenged or defeated. Some contractors have
asserted that claims against them are nonjusticiable under the political question doctrine because
resolution of these claims would require the court to decide issues that the Constitution has
committed to another branch of government or that there are no judicially discoverable and
manageable standards for resolving. To date, courts have reached differing conclusions as to
whether the political question doctrine bars suits against federal contractors, although their
decisions can, in part, be explained by differences in contract terms and performance.
Other contractors have asserted that state tort law claims against them are preempted under the
Federal Tort Claims Act. The Supreme Court’s decision in Boyle v. United Technologies
Corporation recognized that such claims may be preempted where, among other things, the
government approved reasonably precise specifications and the equipment manufactured by the
contractor conformed to those specifications. While Boyle only addressed contracts for goods,
recent decisions by some lower courts have extended it to service contracts, although there
appears to be some disagreement between the courts as to how the test established in Boyle
should be applied. Additionally, while the Boyle Court specifically based its decision on the
“discretionary function” exception to the FTCA, some lower courts have found that state tort law
claims may also be preempted under the FTCA’s “combatant activities exception.” Currently,
there appear to be significant disagreements among the courts as to whether the combatant
activities exception applies narrowly, only in circumstances like those in the cases originally
recognizing it, or whether a broader “battlefield preemption” exists in certain cases.
Contractors may also be able to claim derivative absolute immunity in certain circumstances if
they are seen as performing discretionary functions, and the court finds that the contributions of
immunity to “effective government” within the particular context outweigh the potential harm to
individual citizens. However, contractors have been less successful in asserting derivative
immunity under the Feres doctrine, which bars service members from bringing suit against the
U.S. government for injuries that arise “out of or are in the course of activity incident to service.”
In some cases, the government may have agreed to indemnify the contractor, or pay any liability
that it might incur for injuries to third parties during performance of the contract.
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Tort Suits Against Federal Contractors: An Overview of the Legal Issues

Contents
Introduction ................................................................................................................................ 1
Basics of Tort Liability................................................................................................................ 3
Personal Jurisdiction ................................................................................................................... 5
Subject Matter Jurisdiction.......................................................................................................... 8
Political Question Doctrine ................................................................................................... 8
Preemption Under the Federal Tort Claims Act.................................................................... 12
Government Contractor Defense ................................................................................... 12
Combatant Activities Exception to the FTCA ................................................................ 15
Derivative Immunity ........................................................................................................... 20
Derivative Absolute Immunity ...................................................................................... 21
Derivative Feres Immunity ........................................................................................... 22
Potential Indemnification of Contractor Liability....................................................................... 22
Conclusion................................................................................................................................ 24

Contacts
Author Contact Information ...................................................................................................... 25

Congressional Research Service

Tort Suits Against Federal Contractors: An Overview of the Legal Issues

Introduction
Scores of contractors and contractor-employed personnel perform tasks, some of which are
inherently dangerous, on the government’s behalf around the globe. Many work in areas of
combat operations,1 in cooperation with or close proximity to civilian and military personnel.2
Given this situation, the opportunity for events potentially giving rise to tort liability is arguably
higher than it was in the past, when the government relied less heavily on contractors3 and
contractors generally provided goods, not services, to the government.4
Numerous suits have been filed in recent years by U.S. civilian and military personnel, other U.S.
persons, and other parties alleging that federal contractors intentionally or accidentally injured
them in the course of performing a government contract. These cases have generated significant
congressional and public interest, in part because the cases can pit civilian or military personnel
against large foreign or multinational corporations.5 These cases may also involve the
performance of services that some commentators assert should not have been contracted out.6 In
addition, the cases can tap into broader cultural beliefs about the purpose of the justice system
(i.e., that wrongdoers should “pay,” literally or figuratively) and about “good government” (i.e.,
that the government should not “reward” “bad actors” by doing business with them).7

1 The context within which the contractor operated could be relevant in determining its liability even if none of the
jurisdictional challenges discussed below bar the suit. Several courts have suggested that standards of care may be
lower in combat zones than in other places. See, e.g., McMahon v. Presidential Airways, Inc., 502 F.3d 1333, 1364
(11th Cir. 2007) (“[Flying over Afghanistan during wartime is different from flying over Kansas on a sunny day,” but
modified standards of negligence can be applied); Whitaker v. Kellogg Brown & Root, Inc., 444 F. Supp. 2d 1277,
1282 (M.D. Ga. 2006) (“The question here is not just what a reasonable driver would do—it is what a reasonable driver
in a combat zone, subject to military regulations and orders, would do.”).
2 See, e.g., Spencer E. Ante and Stan Crock, The Other U.S. Military, BUS. WK., May 31, 2004, at 76 (noting that
contractors handle up to 30% of the military’s services in Iraq).
3 See, e.g., Peter Singer, CORPORATE WARRIORS 49-70 (2003) (discussing the downsizing of the military at the end of
the Cold War). Similar reductions were made in the civilian workforce in the course of efforts to reduce the deficit and
“reinvent” government. See, e.g., Paul R. Verkuil, OUTSOURCING SOVEREIGNTY: WHY PRIVATIZATION OF GOVERNMENT
FUNCTIONS THREATENS DEMOCRACY AND WHAT WE CAN DO ABOUT IT 161 (2007) (discussing the Clinton-Gore
National Performance Review).
4 See, e.g., REPORT OF THE ACQUISITION ADVISORY PANEL TO THE OFFICE OF FEDERAL PROCUREMENT POLICY AND THE
UNITED STATES CONGRESS 2-3 (2007) (noting that, in the period 1990-1995, the government began spending more
annually on services than goods).
5 See, e.g., Baragona v. Kuwait Gulf Link Trans. Co., 594 F.3d 852 (11th Cir. 2010), cert. denied, 130 S. Ct. 3473
(2010) (wrongful death action brought by the parents of an Army officer killed when his vehicle collided with a truck
driven by an employee of a Kuwaiti company).
6 See, e.g., Abigail Clark, Reclaiming the Moral High Ground: U.S. Accountability for Contractor Abuses as a Means
to Win Back Hearts and Minds, 38 PUB. CONT. L.J. 709, 710, 732 (2009) (suggesting that contractor employees ought
not to have been used as interrogators at Abu Ghraib). Commentators frequently note that government employees are
“fundamentally different” than contractor personnel because contractors have “profit objectives.” Cf. Chapman v.
Westinghouse Electric Corp., 911 F.2d 267, 271 (9th Cir. 1990).
7 See, e.g., Al Shimari v. CACI Premier Tech., Inc., 657 F. Supp. 2d 700, 715 (E.D. Va. 2009) (“[A] core belief of
American jurisprudence [is] that individuals must be held accountable for their wrongful acts.”); Deficient Contractor
Accountability Leaves Agencies and Taxpayers at Risk, Testimony of Scott Amey, Project on Government Oversight,
before the Commission on Wartime Contracting in Iraq and Afghanistan, Feb. 28, 2011, available at
http://www.wartimecontracting.gov/docs/hearing2011-02-28_testimony-Amey.pdf (objecting to the government’s
continued dealings with contractors who have engaged in misconduct).
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Tort Suits Against Federal Contractors: An Overview of the Legal Issues

This report provides an overview of key legal issues that have been raised to date in recent tort
suits against government contractors.8 Most of these issues pertain to jurisdiction, or the court’s
power over the parties or subject matter of the
case.9 Personal jurisdiction over the defendant
Selected Tort Suits Prompting Congressional
can be an issue in any tort suit. However, it
Responses
appears to be a particular issue in cases where
Jones v. Halliburton: The contractor’s attempt to
the injury occurred while the contractor and
compel arbitration of an employee’s claim that she was
U.S. persons were working for the
raped and sexual y harassed prompted the 111th
government abroad, especially when the
Congress to enact legislation prohibiting the use of funds
contractor is a foreign corporation. Subject
appropriated by the Defense Appropriations Act, 2010,
matter jurisdiction can also be an issue, with
for contracts valued in excess of $1 million unless the
contractor agrees not to require or enforce such
the contractor relying on the political question
agreements.
doctrine, preemption under the Federal Tort
Baragona v. Kuwait Gulf Link Transport Co.:
Claims Act, or derivative immunity to defeat
Opinions by the district and appeals court finding that
jurisdiction. Such defenses are generally
they lacked personal jurisdiction over a foreign
unavailable to defendants who are not
corporation that allegedly caused the death of an Army
government contractors, and often arise
officer in Iraq, prompted, in part, the 111th Congress to
precisely because of the contractor’s legal
authorize the Secretary of Defense to reduce or deny
award fees to contractors “not subject to the jurisdiction
relationship with the government. Suits that
of the United States courts” if he finds they have
are found to be barred on jurisdictional
jeopardized the health or safety of government
grounds often prompt particular interest,
personnel. Some Members of 112th Congresses also
including congressional interest (see sidebar),
introduced legislation requiring federal contractors to
perhaps because they conflict with an intuitive
consent to personal jurisdiction.
sense that “justice” requires accountability for
Bixby v. KBR, Inc.: The contractor’s assertion that its
wrongdoing.10
indemnification agreement with the government would
cover any liability it might incur for negligence and fraud
in exposing members of the National Guard to toxic
A number of cases are pending that could
chemicals in Iraq prompted some Members of the 111th
affect courts’ treatment of the issues discussed
Congress to introduce legislation limiting the executive
here. In addition, there is a pending petition
branch’s authority to enter indemnification agreements.
for the Supreme Court to grant certiorari in
Saleh v. Titan Corporation, a suit involving two federal contractors whose employees served as
interpreters and interrogators at Abu Ghraib.11 While this petition raises issues regarding the Alien

8 Although it notes older cases where they are relevant, the report focuses primarily upon recent suits because changes
in the government’s use of contractors could affect the court’s analysis of such cases. For example, the Department of
Defense now explicitly recognizes contractor employees as part of its “total force,” and many commentators note that
contractors play roles that are functionally akin to combat. See, e.g., Department of Defense, QUADRENNIAL DEFENSE
REVIEW REPORT 75 (2006); Lisa L. Turner and Lynn G. Norton, Civilians at the Tip of the Spear, 51 A.F. L. REV. 1, 22
(2001).
9 Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982) (“The validity of an
order of a federal court depends upon the court’s having jurisdiction over both the subject matter and the parties.”).
Other issues have also been raised, although far more rarely and with less success. See, e.g., Fisher v. Halliburton, 696
F. Supp. 2d 710 (S.D. Tex. 2010) (rejecting defendants’ argument that the suit was barred by the Defense Production
Act since they could have been criminally liable for failure to perform). There is also a possibility that the government
could assert the state secrets privilege, thereby effectively preventing the case from proceeding. See, e.g., Mohamed v.
Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010). For more on the state secrets privilege generally, see CRS
Report R41741, The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information
During Civil Litigation, by Todd Garvey and Edward C. Liu.
10 See, e.g., Jeremy Joseph, Striking the Balance: Domestic Civil Tort Liability for Private Security Contractors, 5 GEO.
J.L. & PUB. POL’Y 691, 692 (2007) (“Even in wartime, parties must be held accountable for their actions.”).
11 See 131 S. Ct. 379 (2010) (inviting the Solicitor General to file a brief expressing the government’s view).
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Tort Statute that are beyond the scope of this report,12 it also challenges the “battle-field
preemption” doctrine which was recently articulated by the U.S. Court of Appeals for the District
of Columbia Circuit in its decision in Saleh.13 If recognized by the Supreme Court, this doctrine
could prove a significant jurisdictional bar in future tort suits against at least some government
contractors.
Basics of Tort Liability
Generally, a tort is a private or civil wrong, other than breach of contract, for which a civil court
will provide a remedy in the form of an action for damages. In other words, the tort system acts as
a mechanism through which an individual who has suffered an injury or incurred damages caused
by an act or omission of another (i.e., a tort-feasor) can seek compensation in court from that tort-
feasor. Tort law has its roots in the common or judge-made law.14 However, states have passed
statutes that codify and sometimes change tort law. These changes can affect the availability and
amount of remedies for a particular injury, for example. Therefore, when a plaintiff brings an
action against a tort-feasor, the laws or court decisions of a state will govern the action. There are
many civil wrongs included under the umbrella of torts, “ranging from simple, direct
interferences with the person such as assault, battery and false imprisonment, or with property, as
is the case of trespass or conversion, up through various forms of negligence.”15
Although tort law “exists on a spectrum of culpability,”16 most plaintiffs seeking recovery bring
their tort suits based on a theory of negligence, which has subsets of its own, such as negligent
misrepresentation and the doctrine of “informed consent” in medical malpractice. Broadly
speaking, in a tort action for negligence, a plaintiff needs to prove by the preponderance of the
evidence that the defendant had a legal duty to the plaintiff, that the defendant breached this duty,
and that such action or omission to act was the actual and/or proximate cause of the plaintiff’s
injuries.
A plaintiff must show negligent conduct, or the breach of duty, by establishing that the tort-feasor
failed to use such care as a reasonably prudent and careful person would use under similar
circumstances.17 This standard is generally considered ordinary negligence, in contrast to gross
negligence, which is defined as “the intentional failure to perform a manifest duty in reckless
disregard of the consequences as affecting the life or property of another.”18 The prevailing view
is that there are no “degrees” of care in negligence, only different amounts of care as a matter of

12 The Alien Tort Statute grants the federal courts jurisdiction over civil actions brought by aliens for torts “committed
in violation of the law of nations or a treaty of the United States,” and could potentially grant foreign plaintiffs standing
to bring suit against government contractors in federal court in certain circumstances. 28 U.S.C. § 1350.
13 580 F.3d 1 (D.C. Cir. 2009).
14 “New ... torts are being recognized constantly, and the progress of the common law is marked by many cases of first
impression, in which the court has struck out boldly to create a new cause of action, where none had been recognized
before. ... When it becomes clear that the plaintiff’s interests are entitled to legal protection against the conduct of the
defendant, the mere fact that the claim is novel will not itself operate as a bar to the remedy.” W. Page Keeton, Prosser
& Keeton on the Law of Torts, § 1 (5th ed. 1984) [hereinafter Prosser & Keeton, Torts].
15 Prosser & Keeton, Torts, § 1.
16 Michael Shapo, Principles of Tort Law, § 1.03(A) (2d ed. 2003).
17 Black’s Law Dictionary 716 (6th ed. 1991).
18 Black’s Law Dictionary 717 (6th ed. 1991).
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fact; for purposes of this discussion, however, we point out that “ordinary” negligence is “based
on the fact that one ought to have known the results of his act.”19 In contrast, gross negligence
“rests on the assumption that one knew the results of his act, but was recklessly or wantonly
indifferent to the results.”20 Furthermore, an action based on negligence is different than an action
based on strict liability, in which the defendant is held liable without a finding of fault, so long as
the plaintiff can establish that the tort occurred and that the defendant was responsible.
Tort suits are not necessarily the only means of holding persons accountable for damages caused
by their actions or inaction, or compensating persons for damages done to them.21 Depending
upon the circumstances, other legal or non-legal recourse may be available, including criminal
prosecution, suits based in contract, and workers’ compensation. However, tort suits are
particularly appealing because injured parties can bring legal actions on their own behalf and
recover monetary damages, unlike with criminal prosecutions. Also, tort suits may be brought in
circumstances where criminal prosecutions are not possible, either because the standard of proof
is higher in criminal cases than in tort suits22 or for other reasons.23 Similarly, persons generally
need to be in “privity of contract,” or be a party to the contract, in order to have standing to
recover on a suit in contract.24 Persons who are not parties to the contract can sometimes be
classified as “third party beneficiaries” to it, but third party beneficiary status is an “exceptional
privilege,”25 which courts generally will not grant unless the plaintiff can demonstrate that the
contract “not only reflects the express or implied intention to benefit the party, but that it reflects
an intention to benefit the party directly.”26 In addition, the amount of damages potentially
recoverable in contract is generally smaller than that which can be recovered in tort.27

19 Black’s Law Dictionary 717-18 (6th ed. 1991).
20 Black’s Law Dictionary 717 (6th ed. 1991).
21 Tort law can be seen as having various purposes, which are not always compatible, including “provid[ing] a remedy
for the innocent victim of wrongful conduct” and ensuring that “tortfeasors … suffer for their sins.” Koohi v. Varian
Assocs., Inc., 976 F.2d 1328, 1335 (9th Cir. 1992), cert. denied 508 U.S. 960 (1993).
22 Compare Harris v. Kellogg Brown & Root Servs., 618 F. Supp. 2d 400 (W.D. Pa. 2009) (wrongful death and
survival claims brought by the family of Staff Sergeant Ryan D. Maseth, who was electrocuted in Iraq) with Army
Finds Insufficient Evidence to Pursue Criminal Case Involving Electrocution Death in Iraq, 92 FED. CONT. REP. 101
(Aug. 11, 2009) (reporting that no person or entity will be prosecuted for Maseth’s death).
23 For example, contractors working in Iraq could not be prosecuted under Iraqi law prior to January 1, 2009, and they
generally cannot be prosecuted under U.S. law unless they are covered by the Military Extraterritorial Jurisdiction Act
of 2000 (MEJA), the Uniform Code of Military Justice (UCMJ), or similar statutes. See, e.g., Coalition Provisional
Authority Order 17, Status of the Coalition, Foreign Liaison Missions, Their Personnel and Contractors, § 2, available
at http://www.usace.army.mil/CEHR/Documents/COALITION_PROVISIONAL.pdf; CRS Report R40991, Private
Security Contractors in Iraq and Afghanistan: Legal Issues, by Jennifer K. Elsea. Some commentators suggest that
“[t]he deterrent and corrective power of tort liability assumes greater importance when other sources of deterrence and
corrective justice—in particular, the criminal justice system—fail.” John P. Figura, You’re in the Army Now: Borrowed
Servants, Dual Servants, and Torts Committed by Contractors’ Employees in the Theaters of U.S. Military Operations,
58 EMORY L.J. 513, 533 (2008).
24 Compare Nattah v. Bush, 605 F.3d 1052 (D.C. Cir. 2010) (reversing a district court decision granting a contractor’s
motion to dismiss an employee’s claim alleging, among other things, that the contractor breached an oral contract by
requiring the employee to live and work in a war zone) with Heroth v. Kingdom of Saudi Arabia, 265 F. Supp. 2d
(D.D.C. 2008) (dismissing claims brought by employees killed or injured when Al-Qaeda bombed a residential
compound in Saudi Arabia that were based on their employer’s contract with Saudi Arabia and Saudi Arabia’s contract
with the United States).
25 German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230 (1912).
26 Glass v. United States, 258 F.3d 1349, 1354 (Fed. Cir. 2001). While would-be third party beneficiaries need not be
specifically or individually identified in the contract, they must “fall within a class clearly intended to benefit thereby.”
Montana v. United States, 124 F.3d 1269, 1273 (Fed. Cir. 1997). This test is generally met if the would-be beneficiary
(continued...)
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In some circumstances, however, injured persons may be barred from filing tort suits. For
example, employees (but not independent contractors) are generally barred by the Defense Base
Act (DBA) and other workers’ compensation laws from suing their employers in tort for injuries
incurred “in the course of” or “because of” their employment.28 Members of the military are
similarly barred, under the Feres doctrine, from bringing suit against the U.S. government for
“injuries [that] arise out of or are in the course of activity incident to service.”29 The Feres
doctrine currently does not bar suits against government contractors working for the military,30
although some contractors have argued that it should be extended to preclude such suits,31 and
some commentators have asserted that the Feres doctrine leads service members to seek damages
from contractors that they could not recover from the government.32
Personal Jurisdiction
The requirement that the court have personal jurisdiction over the defendant flows from the Due
Process Clause of the U.S. Constitution and represents a restriction on judicial power as a matter
of individual liberty.33 The analysis of whether a federal court would have personal jurisdiction
over a defendant can be a complicated matter that is generally outside the scope of this report.
However, personal jurisdiction issues have arisen in several contractor tort suits of particular
interest to some Members of Congress and so are briefly noted here.
For a federal court to exercise personal jurisdiction, its doing so must be both authorized by
statute and consistent with constitutional requirements.34 However, because courts’ authority to
assert personal jurisdiction under the federal “long arm” statute is generally coextensive with the

(...continued)
would be “reasonable in relying on the promise as manifesting an intention to confer a right on him.” Montana, 124
F.3d at 1273.
27 In particular, punitive damages may be recovered in tort, while they generally may not be recovered in contract. See,
e.g., Metroplex Corp. v. Thompson Indus., 25 Fed. App’x 802 (10th Cir. 2002). The statute of limitations for filing a
contract action is, however, generally longer than that for filing an action in tort.
28 See, e.g., Nauert v. Ace Prop. & Cas. Ins. Co, Civil Action No. 04-CV-02547-WYD-BNB, 2005 U.S. Dist. LEXIS
34497 (D. Colo. Aug. 27, 2005) (finding that the DBA and the Longshore and Harbor Workers’ Compensation Act
preempted an employee’s state-law claim alleging that an insurance company acted in bad faith when it denied his
claim seeking payment of medical bills and disability compensation for an injury he sustained while working at an
American military base in Kosovo). But see Nordan v. Blackwater Security Consulting, LLC, 382 F. Supp. 2d 801
(E.D. N.C. 2005), aff’d 460 F.3d 576, 582 (4th Cir. 2006) (holding that the DBA does not represent the contractor’s
exclusive liability and does not preempt state tort law claims); Fisher v. Halliburton, Inc., 390 F. Supp. 2d 610, 613
(S.D. Tex. 2005) (holding that intentional torts are not covered by the DBA).
29 Feres v. United States, 340 U.S. 135, 146 (1950).
30 See, e.g., Chapman, 911 F.2d at 271; Durant v. Neneman, 884 F.2d 1350, 1351 (10th Cir. 1989).
31 See, e.g., McMahon, 502 F.3d at 1343-51.
32 See, e.g., Trevor Wilson, Operation Contractor Shield: Extending the Government Contractor Defense in
Recognition of Modern Warfare Realities, 83 TUL. R. REV. 255, 271 (2008).
33 Insurance Corp., 456 U.S. at 701. Personal jurisdiction consists of two distinct components, amenability to
jurisdiction and service of process. Amenability to jurisdiction means that the defendant is within the substantive reach
of the forum’s jurisdiction under applicable law. Service of process is simply the physical means by which jurisdiction
is asserted. While both components may be at issue in some cases, in most cases, discussions of personal jurisdiction
focus upon amenability to jurisdiction, as does the discussion here.
34 See, e.g., Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007).
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jurisdiction of the courts of the state in which they sit,35 and many states permit their courts to
exercise jurisdiction to the extent permitted by the constitution,36 analysis of personal jurisdiction
questions generally turns upon the Due Process requirements. Under the Due Process Clause, the
exercise of personal jurisdiction is constitutional if the defendants have “minimum contacts” with
the state, such that the assertion of jurisdiction “does not offend traditional notions of fair play
and substantial justice.”37 The amount of contact necessary to meet the constitutional minimum
requirements depends, in part, upon which type of personal jurisdiction—general or specific—is
asserted. General jurisdiction, which allows a court to exercise jurisdiction over a defendant for
any claim, requires “continuous and systematic general business contacts … that approximate
physical presence in the forum state.”38 These contacts do not have to be related to the cause of
action. In contrast, specific jurisdiction requires that a defendant’s contacts with the forum “relate
to” or “arise out of” the claims at issue in the case.39 There is no “continuous and systematic”
requirement, but jurisdiction is limited to the claims in the particular case. Because personal
jurisdiction represents an individual’s constitutional right, it can be waived by, among other
things, contracting in advance to submit to the jurisdiction of a particular court.40
The differing outcomes in the five cases, to date, arising from contractors’ alleged negligence and
fraud in exposing current and former members of the National Guard to sodium dichromate at the
Qarmat Ali water treatment facility in Iraq illustrate the difficulties that plaintiffs can face in
establishing personal jurisdiction. In one of these cases, Bixby v. KBR, Inc., the court found that
the defendants’ contacts with the State of Oregon were insufficient for general jurisdiction, given
these contacts consisted of: (1) registrations to do business in Oregon; (2) designated agents for
service of process; (3) an omnibus workers’ compensation policy covering 42 states, including
Oregon; and (4) the employment of approximately 40 people who listed Oregon as their state of
permanent residence, although none are employed in Oregon.41 However, the court found that it
had specific jurisdiction over plaintiffs’ claims under the “effects test” articulated by the Supreme
Court in Calder v. Jones.42 Under this test, a court may exercise jurisdiction over a defendant who
allegedly committed an intentional tort, expressly aimed at the forum state, that the defendant
knows is likely to cause harm within the forum state. The Bixby court found that this test was
satisfied, in part, because the defendant intentionally misrepresented and concealed conditions at
Qarmat Ali from the plaintiffs, knowing they were members of the Oregon National Guard.43 The
court further found that “any long-term harm suffered by the plaintiffs” would necessarily be felt
in Oregon, which the defendants knew was likely to be the case given that they knowingly failed
to disclose conditions to persons known to be from Oregon.44 In contrast, in another of these
cases, McManaway v. KBR, Inc., the court found that it lacked both general and specific

35 See FED. RULES CIV. PRO. 4(k)(1)(a).
36 See, e.g., 42 PA. C.S.A. § 5322(b); INDIANA RULE OF TRIAL PROCEDURE 4.4(a).
37 Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotations omitted).
38 Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 416 (1984) (internal quotations omitted).
39 Id. at 414 n.8.
40 Insurance Corp., 456 U.S. at 703-04.
41 Case CV-09-632-PK, 2010 U.S. Dist. LEXIS 36096, at *12-*17 (Apr. 9, 2010).
42 465 U.S. 783, 789 (1984).
43 2010 U.S. Dist. LEXIS 36906, at *21 (“Given the allegation that the defendants knew the persons to whom they
intentionally directed their misrepresentations and failures to disclose were soldiers of the Oregon National Guard,
plaintiffs have … satisfied their burden with respect to the second prong of the effects test, that the intentional act was
expressly aimed at Oregon.”).
44 Id. at *22.
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jurisdiction.45 In particular, it found that the “effects test” was not satisfied because, assuming
plaintiffs’ claims were true, the defendants directed their allegedly tortious conduct to all
individuals visiting Qarmat Ali, not just those from Indiana.46 The court also distinguished
between the cause and effects of the alleged harm, finding that the cause occurred in Iraq, even if
the effects were only felt after the plaintiffs returned to Indiana.47 The court in Gallaher v. KBR,
Inc., reached the same conclusion when applying the “effects test,”48 as did that in Billiter v. KBR,
Inc.49 In yet another of these cases, Bootay v. KBR, Inc., the plaintiffs did not assert specific
jurisdiction, and the court found that it lacked general jurisdiction over the three defendants who
contested it because they lacked sufficient contacts with the forum.50 However, while the
outcomes in four of these five cases were undoubtedly frustrating for the plaintiffs, the plaintiffs
could potentially seek a remedy in other jurisdictions where the defendants’ contacts are more
substantial because the defendants are domestic corporations.51
Difficulties in asserting personal jurisdiction may be more intractable when the defendant is a
foreign person who allegedly injured U.S. persons through actions or inaction abroad. That was
situation in Baragona v. Kuwait Gulf Link Transport Company.52 There, in an apparent case of
first impression, the plaintiffs asserted that the Kuwaiti defendant should be subject to the general
jurisdiction of the federal courts in Georgia because the headquarters of the procuring activity
were located in Georgia and the contract was administered from there.53 Although the court
ultimately found that the procuring activity was not, in fact, located in Georgia at the time of
contracting and did not administer the defendant’s contracts from there,54 its holding was broader,
stating that the “due process clause does not permit exercising jurisdiction over a United States …
contractor in the state where the [government] chooses to administer the contract, independent of
any other contacts between the contractor and the state.”55 The court’s holding is arguably
unsurprising given that the Supreme Court has emphasized that defendant’s contacts with the
forum state must be the result of the defendant’s intentional actions, not due to the unilateral
activity of a third party.56 The Baragona court also held, in another apparent question of first
impression, that the contractor did not waive its personal jurisdiction defense by entering into a
contract that contains language like that found in Section 52.228-8 of the Federal Acquisition
Regulation (FAR), which obligates contractors to obtain additional insurance against the claims
of third parties.57

45 695 F. Supp. 2d 883 (S.D. Ind. 2010).
46 Id. at 893.
47 Id. at 894.
48 Case No. 5:09CV69, 2010 U.S. Dist. LEXIS 73437 (N.D. W.V. July 21, 2010).
49 Case No. 5:09CV119, 2010 U.S. Dist. LEXIS 73473 (N.D. W.V. July 21, 2010).
50 Case No. 2:09-cv-1241, 2010 U.S. Dist. LEXIS 107868 (W.D. Pa. Oct. 8, 2010).
51 For example, the plaintiffs in McManaway appear to have re-filed their suit in Texas, where KBR is headquartered.
See Bootay, 2010 U.S. Dist. LEXIS 107868, at *6.
52 594 F.3d 852 (11th Cir. 2010), aff’g 691 F. Supp. 2d 1351 (N.D. Ga.). The plaintiffs in Baragona petitioned the
Supreme Court for review of the Eleventh Circuit’s decision, but this petition was denied. 130 S. Ct. 3474 (2010).
53 691 F. Supp. at 1366.
54 Id. at 1364-65.
55 Id. As the court noted, the practical consequence of the plaintiffs’ argument would be to establish “universal
jurisdiction” within the United States for government contractors, including foreign ones. Id. at 1368.
56 See, e.g., Helicopteros, 466 U.S. at 417.
57 Baragona, 691 F. Supp. 2d at 1368.
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Subject Matter Jurisdiction
While the requirement that courts have personal jurisdiction flows from the Due Process Clause
of the Constitution, the requirement that courts have subject matter jurisdiction derives from
Article III, which represents a “restriction on judicial power … as a matter of sovereignty.”58
Among other things, Article III requires the existence of a “case or controversy” for a court to
have jurisdiction.59 Courts may find that this requirement is not satisfied when a “political
question,” or a question which the Constitution has committed to another branch of government,60
is “inextricably” involved in the resolution of the case.61 Alternatively, the court may find that it
cannot exercise jurisdiction over the plaintiff’s claims because federal law preempts the state tort
law claims which the plaintiff is asserting, or because the contractor has immunity from suit.62
Political Question Doctrine
While commentators have noted numerous complexities pertaining to the political question
doctrine, including whether it represents a formal or functional limitation upon courts’
jurisdiction,63 the notion that courts should refrain from deciding questions that the Constitution
has entrusted to other branches of government has a lengthy history in American jurisprudence. In
his 1803 decision in Marbury v. Madison, Chief Justice Marshall distinguished between
“decid[ing] on the rights of individuals,” which he viewed as within the Court’s power, and
“inquir[ing] how the executive, or executive officers, perform duties in which they have a
discretion,” which he viewed as beyond the Court’s power.64 Marshall concluded that “[q]uestions
in their nature political, or which are, by the constitution and laws, submitted to the executive can
never be made in this court.”65 More recently, in its 1962 decision in Baker v. Carr, the Supreme
Court articulated the prevailing standards for determining whether a political question is
inextricably implicated in the resolution of a case. There, in reversing a lower court’s holding that
a challenge by voters to a state’s system for establishing political districts was nonjusticiable on
political question grounds, the Court noted that:
Prominent on the surface of any case held to involve a political question is found [1] a
textually demonstrable constitutional commitment of the issue to a coordinate political
department; or [2] a lack of judicially discoverable and manageable standards for resolving
it; or [3] the impossibility of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking
independent resolution without expressing lack of the respect due coordinate branches of

58 Insurance Corp. of Ireland, 456 U.S. at 701.
59 U.S. CONST. art. III, § 2, cl. 1.
60 See Baker v. Carr, 369 U.S. 186, 217 (1962).
61 See, e.g., Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827) (holding that the President, acting under congressional
authorization, has exclusive and unreviewable power to determine when the militia should be called out); Ware v.
Hylton, 3 U.S. (3 Dall.) 199 (1796) (refusing to pass on whether a treaty had been broken).
62 See, e.g., 16 James Wm. Moore et al., MOORE’S FEDERAL PRACTICE ¶ 105.21 (3d ed. 1998) (“Sovereign immunity is
not merely a defense to an action against the United States, but a jurisdictional bar.”).
63 See, e.g., Kristen L. Richer, The Functional Political Question Doctrine and the Justiciability of Employee Tort Suits
against Military Service Contractors, 85 N.Y.U. L. REV. 1694 (2010).
64 5 U.S. (1 Cr.) 137, 170 (1803).
65 Id.
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government; or [5] an unusual need for unquestioning adherence to a political decision
already made; or [6] the potentiality of embarrassment from multifarious pronouncements by
various departments on one question.66
Based upon one or more of the factors articulated in Baker, courts subsequently found cases
nonjusticiable on political question grounds when determining the defendant’s liability, or
otherwise resolving the case, would require them to determine the adequacy of the training
procedures used by the National Guard, resolve territorial disputes between sovereigns, establish
standards for intercepting aircraft entering U.S. airspace, or determine the necessity of simulating
battle conditions, among other things.67 As these cases illustrate, political questions arise with
some frequency in cases involving military and foreign affairs. However, not every case that
involves military or foreign affairs necessarily presents a political question.68
Although the political question doctrine was apparently first asserted in tort suits against federal
contractors in which the government intervened,69 contractors have most recently asserted it in
cases where the government has not intervened.70 The outcomes in these cases have varied
widely,71 prompting some commentators to suggest that “uniform treatment and predictable
standards” are lacking.72 To illustrate the ostensible confusion among the cases, commentators
sometimes point to the differing opinions issued by the U.S. Courts of Appeals for the Fifth and
Eleventh Circuits, respectively, in Lane v. Halliburton and Carmichael v. Kellogg, Brown & Root

66 369 U.S. at 217.
67 Gilligan v. Morgan, 413 U.S. 1 (1973) (National Guard training procedures); Aktepe v. United States, 105 F.3d 1400,
1404 (11th Cir. 1997) (simulating battle conditions); Tiffany v. United States, 931 F.2d 271 (4th Cir. 1991) (intercept
standard); Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum, 577 F.2d 1201 (5th Cir. 1978)
(territorial disputes between sovereigns).
68 See, e.g., Baker, 369 U.S. at 211 (“[I]t is error to suppose that every case or controversy which touches foreign
relations lies beyond judicial cognizance.”); Koohi, 976 F.2d at 1331 “[T]he lawsuit [was not] rendered judicially
unmanageable because the challenged conduct took place as part of an authorized military operation ... [F]ederal courts
are capable of reviewing military decisions, particularly when those decisions cause injury to civilians.”).
69 See Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486 (C.D. Cal. 1993) (suit against manufacturer of a missile that
malfunctioned, killing U.S. troops in a “friendly fire” incident, nonjusticiable on political question grounds);
Zuckerbraun v. Gen. Dynamics Corp., 755 F. Supp. 1134 (D. Conn. 1990) (suit against manufacturer of a ship’s
defense system that malfunctioned, resulting in the deaths of thirty-seven sailors when the ship was fired on by an Iraqi
aircraft, nonjusticiable on political question grounds).
70 See, e.g., Corrie v. Caterpillar, 503 F.3d 974 (9th Cir. 2007) (upholding district court decision to dismiss, on political
question grounds, a suit against the manufacturer of bulldozers that the Israeli Defense Forces used to demolish homes
in Palestinian Territories). As the Supreme Court has noted, “the identity of the litigant is immaterial to the presence of
[political question] concerns in a particular case.” United States v. Munoz-Flores, 495 U.S. 385, 394 (1990).
71 Compare McMahon, 502 F.3d at 1331 (political question doctrine does not bar suit against the owner and operator of
an airplane that crashed in Afghanistan), Bixby v. KBR, Inc., Case No. CV 09-632-PK, 2010 U.S. Dist. LEXIS 89717
(D. Or. Aug. 30, 2010) (political question doctrine does not bar suit against company that allegedly exposed members
of the Oregon National Guard to toxic chemicals in Iraq); Harris, 618 F. Sup. 2d 400 (political question doctrine does
not bar suit against contractor for allegedly failing to repair or warn of defective wiring); Potts v. Dyncorp Int’l LLC,
465 F. Supp. 2d 1245 (M.D. Ala. 2006) (political question doctrine does not bar suit against company whose driver
allegedly was responsible for a traffic accident); with Taylor v. Kellog Brown & Root Servs., Inc., Case No. 2:09cv341,
2010 U.S. Dist. LEXIS 50610 (E.D. Va. Apr. 16, 2010) (political question doctrine bars suit against company that was
allegedly negligent in failing to repair a generator); Whitaker v. Kellogg, Brown & Root, Inc., 444 F. Supp. 2d 1277
(M.D. Ga. 2006) (political question doctrine bars suit against company whose drivers allegedly caused accidents
resulting in soldier’s drowning); Smith v. Halliburton Co., Case No. H-06-0462, 2006 U.S. Dist. LEXIS 61980 (S.D.
Tex. Aug. 30, 2006) (political question doctrine bars suit against operator of a dining facility targeted by suicide
bombers in Iraq).
72 Jeremy Joseph, Striking the Balance: Domestic Civil Tort Liability for Private Security Contractors, 5 GEO. J.L. &
PUB. POL’Y 691, 693 (2007).
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Services, Inc.73 Both cases arose from accidents that occurred on contractor-operated fuel convoys
in Iraq during the Gulf War. However, in Lane, the Fifth Circuit reversed a district court decision
dismissing the case on political question grounds, in part, because “we cannot find that all
plausible sets of facts that could be proven would implicate particular authority committed by the
Constitution to Congress or the Executive.”74 The Lane court also noted that, while at least some
of the plaintiffs’ allegations could draw the court into consideration of what constituted adequate
force protection for the convoys, some could potentially be proven without considering the
“Army’s role” in events.75 In contrast, in Carmichael, the Eleventh Circuit affirmed a district
court decision dismissing the case on political question grounds.76 The Carmichael court reached
this conclusion, in part, because determining whether the convoy driver was responsible for the
injuries of a soldier riding along in his vehicle “would require reexamination of many sensitive
judgments and decisions entrusted to the military in a time of war,”77 given that “military
judgments governed the planning and execution of virtually every aspect of the convoy,”
including the date and time of its departure, the speed and route of travel, the distance between
vehicles, and the security measures taken.78 The court also found that there were no judicially
discoverable and manageable standards for resolving whether the driver was negligent because
“the convoy was subject to military regulation and control,” and the standards used in “ordinary
tort cases” would not apply.79
Despite the factual similarities between the cases, the differing outcomes in Carmichael and Lane
can arguably be reconciled given the courts’ differing conclusions about the degree of control that
the contractor retained over its operations under applicable regulations, the terms of the contract,
and the course of performance under the contract. In Lane, where the court viewed KBR’s
“policies and actions” as potentially separable from those of the military, the court found
dismissal on political question grounds to be improper, at least prior to the completion of
discovery.80 In Carmichael, on the other hand, the court viewed the contractor’s policies and
actions as inseparable from those of the military because, among other things, regulations granted
the military “plenary control” over the convoy; the contract demanded the drivers be trained to
military standards; and all parties to the contract viewed the military as having “complete control”
of the convoy.81 In fact, the court expressly rejected the plaintiffs’ attempt to distinguish between

73 See, e.g., Richer, supra note 63, at 1696 (suggesting that the appellate courts are “divided” over the application of the
political question doctrine in such cases); Aaron J. Fickes, Private Warriors and Political Questions: A Critical
Analysis of the Political Question Doctrine’s Application to Suits against Private Military Contractors, 82 TEMPLE L.
REV. 525, 526 (2009) (characterizing the outcomes of these cases as “disparate and confusing”).
74 Lane v. Halliburton, 529 F.3d 548, 559-60 (5th Cir. 2008). Lane consolidated three cases: Fisher, 454 F. Supp. 2d
637; Smith-Idol v. Halliburton, No. 4:06-cv-01168, 2006 U.S. Dist. LEXIS 75574 (S.D. Tex. Oct. 11, 2006); Lane v.
Halliburton, No. 4:06-cv-01971, 2006 U.S. Dist. LEXIS 63948 (S.D. Tex. Sept. 26, 2006).
75 529 F.3d at 560-61. The Lane court viewed causation as the “central issue.” Id. at 561. However, it addressed the
implications of this primarily in terms of the plaintiffs’ allegations of intentional torts, not their claims of negligence.
The court also opined, as to the third Baker factor, that the political question doctrine would bar plaintiffs’ claims if
they were challenging “the wisdom of the military’s use of civilian contractors in a war zone.” Id. at 563. However, it
noted that the plaintiffs could potentially recover without “need[ing] a court to evaluate the Executive’s longstanding
policy of employing civilian contractors in combat support roles.” Id.
76 572 F.3d 1271, 1275 (11th Cir. 2009), cert. denied, 130 S. Ct. 3499 (2010).
77 Id. at 1275.
78 Id. at 1281.
79 Id. at 1288.
80 Lane, 529 F.3d at 563.
81 Carmichael, 572 F.3d at 1276, 1283-85, 1294.
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the military’s control of the convoy and the driver’s control of the vehicle because “[t]he fact that
[the driver] had physical control over his tanker does not change the fact that he was operating at
all times under orders and determinations made by the military.”82
Other factors also help account for the differing outcomes in Lane, Carmichael, and similar cases.
Whether the plaintiff alleges negligence or an intentional tort (e.g., false imprisonment,
intentional infliction of emotional distress) is one such factor. Courts appear more likely to find
that cases are barred on political question grounds when the plaintiff alleges negligence than
when the plaintiff alleges an intentional tort,83 perhaps because commission of an intentional tort
is more clearly within the contractor’s “control.” The tort law of the jurisdiction can also play a
role, with the political question doctrine apparently more likely to bar suits in jurisdictions which
recognize contributory negligence.84 Contributory negligence is a tort doctrine which precludes
plaintiffs whose own negligence is a proximate cause of their injuries from recovery, and the
possibility of contributory negligence could be significant if the plaintiffs are military or civilian
government personnel whose actions or inaction potentially resulted from executive branch
policies.85 Yet another factor is the nature of the remedy sought. Courts have long recognized that
political questions are more likely to arise in negligence cases when plaintiffs seek to enjoin
particular conduct than when plaintiffs seek monetary damages.86 Finally, the timing of the
defendant’s motion to dismiss on political question grounds can also be significant. While many
early district court cases based on injuries incurred during military operations in Afghanistan and
Iraq were dismissed prior to the completion of discovery,87 more recent appeals court decisions
suggest that dismissal is generally only appropriate after the completion of discovery,88 when it
can be said with more certainty that plaintiff could not prove any plausible set of facts allowing
the plaintiff to recover without compelling the defendant to answer a political question.89
While Carmichael and similar cases suggest that federal contractors may be able to successfully
assert the political question doctrine in at least some tort suits, several potentially significant
questions remain unanswered. It is unclear how other jurisdictions and, particularly, the Supreme
Court would view the factors that were seen as determinative by the courts that have decided
these cases to date. Many tort suits against federal contractors have been heard in the Fifth and
Eleventh Circuit because that is where the contractors who were most heavily involved in

82 Id. at 1284.
83 See, e.g., Lane, 529 F.3d at 567 (“The Plaintiffs’ negligence allegations move precariously close to implicating the
political question doctrine, and further factual development very well may demonstrate that the claims are barred.”).
84 See, e.g., Taylor, 2010 U.S. Dist. LEXIS 50610, at *146.
85 See, e.g., id. (noting that defendant’s planned assertion of contributory negligence would have required the court to
determine whether the Marines made a reasonable decision in attempting to repair an electrical generator themselves).
See also Carmichael, 572 F.3d at 1288 (discussing concurrent negligence under Georgia law).
86 Compare Gilligan, 413 U.S. at 10-11 (plaintiffs seeking an injunction, suit barred) with Scheuer v. Rhodes, 416 U.S.
232 (1974) (plaintiffs seeking damages, suit not barred). See also Koohi, 976 F.2d at 1332 (“A key element in our
conclusion that the plaintiffs’ action is justiciable is the fact that the plaintiffs seek only damages for their injuries.
Damage actions are particularly judicially manageable. By contrast, because the framing of injunctive relief may
require the courts to engage in the type of operational decision-making beyond their competence and constitutionally
committed to other branches, such suits are far more likely to implicate political questions.”).
87 See, e.g., the three cases consolidated in the Fifth Circuit’s decision in Lane. Supra note 74.
88 See, e.g., Lane, 529 F.3d at 554 (finding that the district court erred “to the extent that the case needs further factual
development before it can be known whether the political question doctrine is an impediment”); Carmichael, 572 F.3d
at 1291, aff’g 564 F. Supp. 2d 1363 (granting motion to dismiss on political question grounds that was renewed after
the completion of discovery).
89 Lane, 529 F.3d at 559-60.
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operations in Iraq, in particular, are located.90 It is thus less certain how courts in other circuits
would approach these cases. Additionally, some commentators have suggested that the Supreme
Court is not favorably inclined toward the political question doctrine at present.91 Relatedly, there
appears to be disagreement among the federal courts of appeals as to what significance, if any,
attaches to the government’s failure to intervene in a suit against a contractor. Some circuits
seemingly view the government’s failure to intervene as insignificant,92 while others view it as
weighing against dismissal of the case on political question grounds.93
Preemption Under the Federal Tort Claims Act
Even if plaintiffs’ claims against a government contractor are not barred by the operation of the
political question doctrine, the court could still find that it cannot exercise jurisdiction over these
claims because the claims are preempted under the Federal Tort Claims Act (FTCA). As a
sovereign, the federal government is immune from suit without its consent.94 The FTCA waives
the government’s sovereign immunity,95 but this waiver is subject to many exceptions. Although
the FTCA is not directly applicable to contractors, courts have crafted several “federal common
law” defenses that shield government contractors from liability under the FTCA’s exceptions. The
most prominent of these are the government contractor defense and the combatant activities
exception. However, some contractors have also asserted “derivative sovereign immunity”
generally under the FTCA.
Government Contractor Defense
The government contractor defense is a judicially created doctrine that bars courts from hearing
certain cases because the state tort law claims raised in the case are preempted. The defense
derives from the Supreme Court’s decision in Boyle v. United Technologies Corporation, which
both articulated the reasons for recognizing a government contractor defense and created a test to

90 Halliburton is headquartered in Houston and has an office in Louisiana, both of which are within the territory of the
U.S. Court of Appeals for the Fifth Circuit. Compare Halliburton, Locations, available at http://www.halliburton.com/
locations/ with United States Courts, Court Locator, available at http://www.uscourts.gov/court_locator.aspx. Kellogg,
Brown and Root, which was a Halliburton subsidiary until 2007, is also headquartered in Houston, but has offices in
Alabama, which is within the territory of the U.S. Court of Appeals for the Eleventh Circuit. KBR holds the military’s
major logistics contract (LOGCAP) in Iraq, where it at one time had over 50,000 employees and subcontractors
supporting over 200,0000 persons at 70 sites. Joseph, supra note 10, at 694.
91 See, e.g., Richer, supra note 63, at 1704-05 (noting that the Supreme Court did not find either Bush v. Gore or
Boumediene v. Bush nonjusticiable on political question grounds).
92 See, e.g., Alperin v. Vatican Bank, 410 F.3d 532, 556 (9th Cir. 2005).
93 See, e.g., Gross v. German Found. Indus. Initiative, 549 F.3d 605 (3d Cir. 2008); McMahon, 502 F.3d at 1365. Some
commentators have suggested that the government ought to be required to make its views known in cases where a
contractor asserts the political question doctrine, much like “Bernstein letters” are used by the Department of State to
inform courts if the executive branch believes the act of state doctrine applies to pending litigation. See Chris Jenks,
Square Peg in a Round Hole: Government Contractor Battlefield Tort Liability and the Political Question Doctrine, 28
BERKELEY J. INT’L L. 178, 209-10 (2010).
94 See, e.g., Donald L. Doernberg, SOVEREIGN IMMUNITY OR THE RULE OF LAW 74 (2005) (quoting William Blackstone,
COMMENTARIES ON THE LAWS OF ENGLAND 235 (1765) (“[N]o suit or action can be brought against the king, even in
civil matters, because no court can have jurisdiction over him.”).
95 Specifically, the FTCA makes the United States liable “for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope
of his office or employment, under circumstances where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b).
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determine when state law should be “displaced” or preempted.96 According to the Court, the
“uniquely federal interest” in “civil liabilities arising out of the performance of federal
procurement contracts” is such as to warrant preemption of state law and its replacement with
“federal law of a content prescribed (absent explicit statutory directive) by the courts—so-called
‘federal common law.’”97 In place of the preempted state tort laws, under which the petitioners
had sued a contractor who manufactured a helicopter that allegedly malfunctioned, causing the
death of a Marine pilot, the Court substituted a two-prong test to determine when state law should
be displaced and a three-part test to determine the scope of displacement. Boyle’s two-prong test
asks whether (1) the claim involves an area of “uniquely federal interest” and (2) there is “a
‘significant conflict’ … between an identifiable ‘federal policy or interest and the [operation] of
state law’ … or the application of state law would ‘frustrate specific objectives of federal
legislation.’”98 Assuming this test is satisfied, Boyle’s three-part test, resulting in claims being
preempted where:
1. the United States approved reasonably precise specifications;
2. the equipment conformed to those specifications; and
3. the supplier warned the United States about the dangers in the use of the
equipment that were known to the supplier but not to the United States.99
While Boyle is often cited for this three-part test, several other aspects of the decision should be
noted because of their relevance to ongoing litigation. First, the Court explicitly recognized that
procurement of equipment by the United States is an area of “uniquely federal interest.” Second,
the Court expressly held that the state-prescribed duty of care may be preempted when a
contractor cannot comply with both this duty and its contractual obligations to the federal
government.100 Third, and perhaps most importantly, the Court grounded, or rooted, the
government contractor defense in the “discretionary function” exception to the Federal Tort
Claims Act.101 This exception bars any claim against the United States that is “based upon the

96 487 U.S. 500 (1988).
97 Id. at 504-05. In so concluding, the Court rejected the petitioners’ broad contention that, absent legislation
specifically immunizing government contractors from liability for design defects, there is no basis for judicial
recognition of a military contractor defense. It noted that there have, in fact, been a few areas involving “uniquely
federal interests” where it has found state law preempted and replaced, where appropriate, with “federal common law.”
Id. at 504. Noting that it has found the civil liability of federal officials for actions taken in the course of their duty to be
an area of “peculiarly federal concern,” the Court also cited Yearsley v. W.A. Ross Construction Co., as support for the
principle that it has found “civil liabilities arising out of the performance of federal procurement contracts” to be an
area of “uniquely federal interest.” Id. at 505-06. In Yearsley, the Court held that there was no liability on the part of a
government contractor for executing the will of the government if the authority for its actions was “validly conferred.”
See 309 U.S. 18 (1940).
98 Boyle, 487 U.S. at 507.
99 Id. at 512. According to the Court, the first two conditions ensure “the suit is within the area where the policy of the
‘discretionary function’ would be frustrated—i.e., ... the design feature in question was considered by a Government
officer, and not merely by the contractor itself.” Id. The third condition, in contrast, provides an incentive for
manufacturers to provide information about risks to the government.
100 Id. at at 509. According to the Court, “[d]isplacement [of state law] will occur only where ... a ‘significant conflict’
exists between an identifiable ‘federal policy or interest and the [operation] of state law’ … or the application of state
law would ‘frustrate specific objectives of federal legislation.’” Id. at 507. However, the Court further stated: “The
conflict with federal policy need not be as sharp as that which must exist for ordinary pre-emption when Congress
legislates in a field which the States have traditionally occupied ... But conflict there must be.” Id. at 509. In other
words, state law would not be displaced “where a duty sought to be imposed on the contractor is not identical to one
under the contract, but also not contrary to any assumed [under the contract].” Id.
101 Boyle, 487 U.S. at 511-512. The Court also considered but dismissed the Feres doctrine as the limiting principle to
(continued...)
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exercise or performance or the failure to exercise or perform a discretionary function or duty on
the part of a federal agency or an employee of the Government, whether or not the discretion
involved be abused.”102 In particular, the Boyle Court found a discretionary function is implicated
whenever the government chooses the appropriate designs for military equipment.103
Because Boyle involved a contract for the procurement of goods, some plaintiffs have asserted
that the government contractor defense does not apply to contracts for services. The exclusion of
service contracts from the government contractor defense could have significant implications for
recent tort suits against government contractors, given that most government contracts are now
for services, not goods.104 While two recent decisions from the U.S. Courts of Appeals for the
Fifth and Eleventh Circuits suggest that service contractors may be able to successfully assert the
government contractor defense in certain circumstances, there appear to be some questions about
its application.
In the earlier of these two decisions, Hudgens v. Bell Helicopters/Textron, the Eleventh Circuit
expressly rejected the defendant’s argument that the government contractor defense should not be
extended to service contracts because “immunity from tort liability is the exception to the general
rule.”105 According to the court:
Although Boyle referred specifically to procurement contracts, the analysis it requires is not
designed to promote all-or nothing rules regarding different classes of contract. Rather, the
question is whether subjecting a contractor to liability under state tort law would create a
significant conflict with a unique federal interest.106
Then, having found that the government contractor defense extended to service contracts, the
court applied the three-part test from Boyle to find that the plaintiffs’ claims against the contractor
were preempted because the Army approved reasonably precise maintenance procedures; the
defendant’s performance of maintenance conformed to those procedures; and the defendants had
informed the Army of the dangers associated with not adopting certain precautions recommended
by the Federal Aviation Administration and Bell Helicopters.107

(...continued)
identify those situations in which a significant conflict arises between federal interests and state law. It found that
application of the Feres doctrine as a limiting principle would produce results that were both too broad and too narrow.
Because the Feres doctrine “prohibits all service-related tort claims against the Government, a contractor defense that
rests upon it should [likewise] prohibit all service-related tort claims against the manufacturer.” Id. at 510. On the other
hand, because the doctrine only covers service-related injuries, and not injuries caused by the military to civilians, “it
could not be invoked to prevent, for example, a civilian’s suit against the manufacturer.” Id. at 510-511.
102 28 U.S.C. § 2680(a).
103 Boyle, 487 U.S. at 512. (“It makes little sense to insulate the Government against financial liability for the judgment
that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not
when it contracts for the production.” Id.).
104 See supra note 4 and accompanying text. Moreover, many of today’s contracts for goods are for “commercial
items,” which, by definition, are not goods made to the government’s specifications. See 48 C.F.R. § 2.101 (defining
“commercial item”).
105 328 F.3d 1329, 1334 (11th Cir. 2003).
106 Id. The Hudgens court extended Boyle to service contracts, in part, because it found the articulation of maintenance
protocols to involve the exercise of the same discretion that would be required to choose design specifications.
107 Id. at 1335-37.
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The Fifth Circuit also applied the government contractor defense to a service contract in In re:
Katrina Canal Breaches v. Washington Group International.108 However, the Fifth Circuit
construed Boyle as requiring only the application of the three-part test pertaining to the
specifications, not the application of the two-prong and three-part test. According to the Fifth
Circuit, the first step of the three-part test (i.e., asking “whether the Government approved
reasonably precise specifications for the design feature in question”) “necessarily answers the
question whether the federal contract conflicts with state law.”109 Further, in determining whether
there was such a conflict, the court looked not to the specifications for the entire project, but
rather the specifications for the specific feature at issue in the claim. It found that because the
specifications were not reasonably precise in this case, the defendant contractors were not entitled
to the government contractor defense, and the state law applicable to the defendants was not
preempted.110
Both Hudgens and In re: Katrina Canal Breaches demonstrate a direct application of the
government contractor defense as iterated in Boyle to the claims at issue. Although the courts
apparently differed as to the necessity of applying the two-prong preemption test,111 each court
extended the application of the three-part test to cover actions pursuant to contracts for services.
In addition, both cases acknowledged that the discretionary function was the limiting principle
chosen by the Supreme Court to determine if a significant policy or federal interest is threatened
by the operation of state law. However, as more tort suits against contractors have been brought, it
seems as if the government contractor defense laid out in Boyle has been expanded by the courts,
specifically with respect to the combatant activities exception, as is discussed below. Whether this
was the intention of the Supreme Court in Boyle has also been the subject of commentary by
some courts.112
Combatant Activities Exception to the FTCA
As noted above, the Supreme Court in Boyle grounded the government contractor defense in the
discretionary function exception to the FTCA. Since then, defendant-contractors have also
asserted that claims against them are preempted under the combatant activities exception to the
FTCA. This exception precludes tort liability in “[a]ny claim arising out of the combatant
activities of the military forces, or the Coast Guard, during a time of war.”113 The courts that have

108 620 F.3d 455 (5th Cir. 2010).
109 Id. at 460 (citing Lewis v. Babcock Indus. Inc., 985 F.2d 83, 86 (2d Cir. 1993)). The court dismissed plaintiffs’
argument that the first inquiry should be whether a significant conflict exists between federal policy and state law,
stating that this threshold inquiry, as articulated by Boyle, “has never been required by any court, nor should it be.” Id.
at 461.
110 Id. at 465.
111 Although the Eleventh Circuit apparently did not apply the two-prong test within the context of the specific facts
and circumstances of the case, its discussion of Boyle included the two-prong test, and its decision can be read as
construing Boyle to mean that procurement contracts entail uniquely federal interests, and there are significant conflicts
when contract specifications cannot be fulfilled consistently with duties imposed by state law. In any case, the court did
not state that only the three-part test of Boyle should be applied, unlike the Fifth Circuit.
112 See McMahon, 460 F. Supp. 2d 1315 (M.D. Fla. 2006), aff’d on other grounds by McMahon, 502 F.3d 1331; Al-
Quraishi v. Nakla, 728 F. Supp. 2d 702 (D. Md. 2010); In re: KBR, Inc., Burn Pit Litigation, 736 F. Supp. 2d 954 (D.
Md. 2010), stay granted by In re: KBR, Inc., Burn Pitt Litigation, 2010 U.S. Dist. LEXIS 130770 (D. Md., Dec. 10,
2010).
113 28 U.S.C. § 2680(j).
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recognized contractors’ assertion of this defense have generally done so by, knowingly or
unknowingly, linking it to the government contractor defense recognized in Boyle.
Two early cases—Koohi v. Varian Associates, Inc.114 and Bentzlin v. Hughes Aircraft Co.115—first
extended the application of the combatant activities exception to government contractors in
certain limited circumstances. Both cases involved product liability claims. In Koohi, the U.S.
Court of Appeals for the Ninth Circuit extended the combatant activities exception to preempt
claims against a weapons manufacturer on the grounds that:
[O]ne purpose of the combatant activities exception is to recognize that during wartime
encounters[,] no duty of reasonable care is owed to those against whom force is directed as a
result of authorized military action. ... The imposition of such liability on the manufacturers
of the Aegis would create a duty of care where the combatant activities exception is intended
to ensure that none exists.116
However, the Ninth Circuit’s arguably brief discussion left it unclear whether the court
intended to utilize the government contractor defense to explain the extension of the
combatant activities exception to contractor. However, subsequent courts have done so,
or concluded that this was the Ninth Circuit’s intent.117
Bentzlin is like Koohi in that the U.S. District Court for the Central District of California
seemed to base the combatant activities exception, in part, on the government contractor
defense.118 The Bentzlin court explicitly addressed whether the government contractor
defense could be extended to suits arising from wartime activity (i.e., combatant
activities) and found that it could because (1) there is a unique federal interest in the
procurement of highly sophisticated weapons; and (2) there would be a significant
conflict between federal policy (rooted in the discretionary function exception) and the
operation of state tort law. 119 Bentzlin also expanded upon Koohi’s use of the combatant
activities exception by noting that while Koohi limited its application of the combatant
activities exception to suits involving “enemies” of the United States, nothing in Koohi
suggested that it was intended to be so narrowly construed. The court reasoned that “[i]n
a wartime context, state law cannot establish a duty of care owed to American soldiers
who necessarily assume the risk of death.”120

114 Koohi, 976 F.2d 1328.
115 Bentzlin, 833 F. Supp. 1486.
116 Koohi, 976 F.2d at 1337.
117 The court did not explore the Boyle two-prong test to discuss if the government contractor defense would be
applicable by examining if a unique federal interest is at stake and if the federal interest would be threatened by
operation of state law. It also did not explicitly discuss utilizing the combatant activity exception as the limiting
principle as the Supreme Court had done with the discretionary function exception in Boyle.
118 833 F. Supp. at 1489.
119 Id. at 1492. The Bentzlin court specifically held that the government contractor defense supports preemption of
manufacturing defect suits arising in the context of war because the application of tort law principles—deterrence,
punishment, and providing a remedy to innocent victims—to suits arising from combat “would frustrate government
combat interests.” Id. at 1493.
120 Id. at 1494-95. See also McMahon, 460 F. Supp. 2d at 1330 (opining that Bentzlin expanded the Koohi decision
when it stated that “the ‘government contractor defense’ necessarily extends to suits ... which arise from wartime
activity (‘combatant preemption’).”).
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More recent decisions on the combatant activities exception have diverged as to its scope,121 with
some parties and courts viewing the combatant activities exception primarily through the
framework of Koohi and Bentzlin and others considering the exception more broadly in light of
the government contractor defense recognized in Boyle. The courts in Flanigan v. Westwind
Technologies and Lessin v. Kellogg Brown & Root, Inc., for example, approached the combatant
activities exception primarily through the framework of Koohi and Bentzlin. They concluded,
respectively, that the plaintiffs’ claims fell within those preempted under Koohi/Bentzlin because
they involved the procurement of “complex equipment” by the government,122 or were
distinguishable from those in Koohi/Bentzlin because they did not arise from the “United States’
use of weapons during combat,” and contractors have a duty of care to U.S. persons (as opposed
to perceived enemies) during combat.123
In contrast, in Saleh v. Titan Corporation, the U.S. Court of Appeals for the District of Columbia
Circuit looked to Boyle in expanding the reach of the combatant activities exception. Saleh arose
from contractor employees’ work as interrogators and interpreters at the Abu Ghraib prison
complex,124 and the case also raises issues regarding the Alien Tort Statute that are outside the
scope of this report. As to the combatant activities exception, the Saleh court first used the two-
prong analysis set forth in Boyle to find a unique federal interest in the detention and interrogation
of individuals during war and a potentially significant conflict between this federal interest and
the operation of state tort law.125 The court then broadened the “scope of displacement” test that
had been used by the district court to find that claims are preempted “[d]uring wartime, where a
private service contractor is integrated into combatant activities over which the military retains
command authority.” The district court, in contrast, had found plaintiffs’ claims preempted only
when the contractor is “under the direct command and exclusive operational control of the
military chain of command,”126 a test that the D.C. Circuit found to be too narrow given that the
“breadth of displacement must be inversely proportional to the states’ interests, just as it is
directly proportional to the strength of the federal interest.”127

121 Thus far, it seems like a minority of courts have found in favor of the defendant-contractor. See, e.g., Saleh v. Titan
Corp., 580 F.3d 1 (D.C. Cir. 2009) (affirming that claims against defendants should be dismissed); Taylor, 2010 U.S.
Dist. LEXIS 50610 (granting defendant’s motion to dismiss under the combatant activities exception). But see Bixby,
2010 LEXIS 89717 (denying defendant’s motion to dismiss under the combatant activities exception); Harris, 618 F.
Supp. 2d 400 (denying defendant’s motions to dismiss under the combatant activities exception); Lessin v. Kellogg
Brown & Root, Inc., 2006 U.S. Dist. LEXIS 39403 (S.D. Tex. June 12, 2006) (same).
122 648 F. Supp. 2d 994, 1006 (W.D. Tenn. 2008). It should be noted that the defendants in Flanigan did not explicitly
assert the government contractor defense. However, the court stated that their argument for preemption was based on
the analysis articulated in Boyle. Id. at 1004. The court then distinguished between the Koohi/ Bentzlin cases, which
extended the Boyle defense to combatant activities because they concerned “complex equipment acquired by the
Government,” and other cases that did not extend the exception because no manufacturing or design defects were
alleged. Id. at 1006. The Flanigan court concluded that “the type of action at bar falls into the Koohi/Bentzlin category
of cases, as the systems and components alleged by the Plaintiff ... constitute ‘complex equipment acquired by the
Government.’” Id. at 1007.
123 Lessin, 2006 U.S. Dist. LEXIS 39403, *13-14. See also Fisher, 390 F. Supp. 2d 610.
124 Saleh, 580 F.3d 1, in part aff’d and in part rev’d, Ibrahim v. Titan Corp., 556 F. Supp. 2d 1 (D. D.C. 2007), petition
for cert. applied 78 USLW 2652 (U.S. Apr. 26, 2010) (No. 09-1313).
125 Id. at 7. With respect to the federal interest, the court specifically noted that “the policy [of the combatant activities
exception] ... is simply the elimination of tort from the battlefield, both to preempt state or foreign regulation of federal
wartime conduct and to free military commanders from the doubts and uncertainty inherent in potential subjection to
civil suit.” Id.
126 Id. at 9 (emphasis added).
127 Id. at 12. The D.C. Circuit disagreed with the district court’s “exclusive operational” control test because it found
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Saleh and other recent decisions addressing the combatant activities exception highlight other
apparent differences between the courts in their application of the exception, although it is unclear
to what degree such differences influence the outcomes in particular cases given the widely
different facts of the cases and other differences in courts’ approaches. Key among these
differences are:
• what constitutes a “combatant activity”: Some courts have adopted a broad
definition of “combatant activity,” including “not only physical violence, but
activities both necessary to and in direct connection with actual hostility.” 128
Others have adopted narrower definitions. In Al Shimari v. CACI Inc., for
example,129 the court defined “combatant activities” as “the actual engaging in
the exercise of physical force.”130 Additionally, there is the related question of
whether the court should focus solely upon whether the defendant’s actions fall
within its definition of “combatant activities,” or whether it should first analyze
whether the military actually retained control over the defendant’s actions, as the
Saleh court did.131
• whether the decisions in Koohi and Bentzlin are, in fact, based in Boyle and
the combatant activities exception to the FTCA: Although several courts have
addressed the application or non-application of the combatant activities exception
through the Boyle government contractor defense analysis, a few courts have
rejected this connection. For example, in McMahon v. Presidential Airways Inc.,
a federal district court declared that it was “skeptical that the combatant activities
exception to the FTCA ... has any application to suits against private defense
contractors.”132 The McMahon court not only pointed out the apparent conflation

(...continued)
that the test “d[id] not protect the full measure of the federal interest embodied in the combatant activities exception.”
Id. at 8.
128 See, e.g., Taylor, 2010 U.S. Dist. LEXIS 50610, at *28-20 (citing Johnson v. United States, 170 F.2d 767 (9th Cir.
1948)). In Taylor, the defendants argued that activities should be deemed combatant activities “whenever ‘contract
employees [are] integrated into the military’s operational activities ... and perform[] a common mission with the
military under ultimate military command.” Id. The plaintiffs argued that “the exception is limited to actual combat
activities.” Id. See also Harris, 618 F. Supp. 2d 400 (denying the defendant-contractor’s motion to dismiss as it
concluded, without much analysis, that the conduct giving rise to the claims in the case did not arise from active
military combat operations).
129 657 F. Supp. 2d 700.
130 Id. (citing Skeen v. United States, 72 F. Supp. 372, 374 (W.D. La. 1947)). The court found that this more limited
definition “comports with the common sense notion that a government contractor does not necessarily conduct
combatant activities merely because it provides services in support of a war effort.” Id. While the court found that it
could not conclude whether the defendant-contractor’s interrogation and interpretation services constituted “combat
activities” prior to discovery, it analyzed the claims before it under the Boyle two-prong test and, unlike the court in
Saleh, was not persuaded by the defendants’ argument that the plaintiffs’ claims implicated uniquely federal interests
because the prosecution of war is a power constitutionally vested in the federal government. Id. at 721. The court
specifically wanted to review the contract because, under its definition of “combat activities,” interrogation “should not
properly be understood to constitute actual physical force ... because the amount of physical contact available to an
interrogator is largely limited by law and by contract.”
131 Compare Taylor, 2010 U.S. Dist. LEXIS 50610, at *27-28 with Saleh, 580 F.3d at 9-10.
132 McMahon, 460 F. Supp. 2d at 1331, aff’d by, McMahon, 502 F.3d 1331. The court was particularly critical of the
Ninth Circuit’s Koohi decision that extended the exception to contractors to preempt tort law claims where the
plaintiffs were survivors of “enemy” combatants. The court in McMahon declared, “[w]hether the Bentzlin and Koohi
courts unwittingly confused the government contractor defense and the combatant activities exception to the FTCA, or
whether they crafted an entirely new defense based on sovereign immunity and federal preemption, this Court declines
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of the government contractor defense and the combatant activities exception in
Koohi and Bentzlin,133 but also noted that “[t]here is no express authority for
judicially intermixing the government contractor defense and the combatant
activities exception. ... [U]nless [private contractors] qualify as employees or
agents of the Government, [they] may not bootstrap the Government’s sovereign
immunity.”134 Other courts have noted similar problems in grounding the
combatant activities exception in the government contractor defense.135
• whether the government contractor defense bestows derivative sovereign
immunity upon contractors: Not only have some courts taken the combatant
activities exception and rooted it in the Boyle government contractor analysis, but
at least one federal district court has suggested that the defense bestows
derivative sovereign immunity upon contractors. In Bixby v. KBR, Inc., the court
declared that “[u]nder the so-called ‘government contractor defense,’ where
certain conditions are met, a government contractor enjoys derivative sovereign
immunity against tort actions arising out of the contractor’s provisions of services
to the government.”136 No other court appears to have adopted this analysis,
although other defendants have asserted that they have derivative sovereign
immunity, either because they are agents of the government or on other
grounds.137
As defendant-contractors assert with more frequency the government contractor defense and the
combatant activities exception as grounds to preempt state tort law claims against them, it is
possible that the distinction between the two defenses will become less, rather than more, clear.138

(...continued)
to endorse such a defense for private contractors based solely on the fact that Defendants were operating in a combat
zone.” Id. at 1330.
133 Id. The court believed the government contractor defense created in Boyle was limited in application and only
shielded contractors in the procurement of military equipment when the government dictates design specifications.
Furthermore, it stated that “[p]rivate contractors are not entitled to sovereign immunity unless they are characterized as
government employees.” Id.
134 Id.
135 See, e.g., Al-Quraishi v. Nakhla, 728 F. Supp. 2d 702, 715 (D. Md. 2010) (noting that doing so would result in the
same problems that caused the Supreme Court to reject the Feres doctrine as the basis for the government contractor
defense in Boyle). See note 101.
136 Bixby, 2010 U.S. Dist. LEXIS 89717. It should be noted that the Boyle Court explicitly stated that it did not address
this issue. Boyle, 487 U.S. at 505 n1 (“The [dissent] misreads our discussion here to “intimat[e] that the immunity [of
federal officials] ... might extend ... [to] nongovernment employees” such as a Government contractor. … But we do
not address this issue, as it is not before us. We cite these cases [Westfall v. Erwin, Howard v. Lyons, and Barr v.
Matteo] merely to demonstrate that the liability of independent contractors performing work for the Federal
Government, like the liability of federal officials, is an area of uniquely federal interest.”). Notwithstanding this
discrepancy, the court in Bixby applied the three-part Boyle test to the claims at hand. Bixby separately addressed the
combatant activities exception to the FTCA. Interestingly, although the court in Bixby stated that it would accept the
Saleh rationale that the combatant activities exception precluded some claims against government contractors, it did not
seem to acknowledge that the Saleh analysis was, in fact, grounded in the two-prong government contractor defense
analysis from Boyle.
137 See, e.g., Martin v. Halliburton, 618 F.3d 476, 484-85 (5th Cir. 2010); Ackerson v. Bean Dredging LLC, 589 F.3d
196, 205-06 (4th Cir. 2009); Fisher, 696 F. Supp. 2d at 714-20.
138 A prime example of this uncertainty as to what should be asserted by the parties and/or considered by the courts is
the district court’s decision in In re: KBR., Inc., Burn Pit Litigation. Because the defendants did not assert the
government contractor defense, the court stated that it would refrain from performing any analysis of Boyle. 736 F.
Supp. 2d 954, 965-66 (D. Md. 2010). Yet, when it addressed the combatant activities exception, the court stated:
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Though the result for the defendant-contractor might be the same regardless of the variation of
the defense applied,139 what is asserted and how it is analyzed remain significant because of the
scope of immunity at stake. Generally, each version of the government contractor defense140
requires the defendant to meet a test fashioned by the court to determine (1) whether the defense
is applicable in the first instance, and (2) if applicable, the scope for displacing state law. Moving
across the spectrum (see footnote 140), the scope of immunity generally seems to become broader
as the specificities of the applicable test lessen. For example, one court stated that “[t]he
combatant activities exception is much broader in scope than the discretionary function
exception, and the Saleh degree of integration test may not appropriately limit the scope of the
combatant activities exception as applied to government contractors.”141 Thus, depending on the
type of defense asserted and recognized, a defendant-contractor may have a less burdensome
affirmative defense to prove and a broader shield of immunity.142
Derivative Immunity
In some cases, contractors may assert derivative immunity that is not based in the government’s
sovereign immunity, although contractors’ ability to assert such immunity does result from their
working for the government. Derivative absolute immunity, which can protect government
employees against certain tort suits, is one type of immunity that may be asserted. Contractors
have also attempted to assert derivative Feres or “intramilitary” immunity, although with little
success. Where a party is immune from suit, the court cannot exercise jurisdiction over the claim
against it.

(...continued)
Notwithstanding their disavowal of the government contractor defense and Boyle at this stage of the litigation,
Defendants nevertheless rely on cases involving application of the Boyle-styled preemption defense ... Apparently
puzzled ..., Plaintiffs interpret [the defendants’] combatant activities argument as a derivative sovereign immunity
argument, not a preemption defense. ... The Court will assume for purposes of this motion the Defendants are
raising a Boyle-styled, conflict preemption defense based on the combatant activities exception as opposed to a
separate basis for the assertion of derivative sovereign immunity.
Id. at 976. Similarly, in Lessin, the court noted that the defendant, in its motion to dismiss, emphasized that it was
asserting the combatant activities exception rather than the affirmative government contractor defense laid out in Boyle.
2006 U.S. Dist. LEXIS 39403, at *11 n.2.
139 In re: KBR Inc., Burn Pit Litigation, 736 F. Supp. 2d at 967 (“Whether viewed as “derivative sovereign immunity”
or federal preemption, the result is protection from liability for a government contractor faithfully doing the
government’s bidding.”).
140 The variety of defenses recognized thus far include: (1) the Boyle government contractor defense rooted in the
discretionary function exception to the FTCA limited to military procurement contracts for goods; (2) the Boyle
government contractor defense rooted in the discretionary function exception to the FTCA applicable to both contracts
for services and goods; (3) the Boyle government contractor defense rooted in the combatant activities exception; and
(4) the government contractor defense as a part of derivative sovereign immunity.
141 In re: KBR Inc., Burn Pit Litigation, 736 F. Supp. 2d at 977 n.12.
142 The critique by the McMahon and Al-Quraishi courts of the applicability of the combatant activities exception to
defendant-contractors further raises the question of how far the government contractor defense could evolve. See also
Fisher, 390 F. Supp. 2d at 616 (“The Court concludes that extension of the government contractor defense beyond its
current boundaries (i.e., beyond the Koohi/Bentzlin model) is unwarranted.”). Courts, since Boyle, have chosen to look
to the other FTCA exceptions, which prompted the dissenting judge in Saleh to opine that “if we go down this road and
extend Boyle to the combatant activities exception, there is no reason to stop there.” Saleh, 580 F.3d at 23 (Garland, J.,
dissenting).
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Derivative Absolute Immunity
Government employees are generally immune from suit when they perform “discretionary” (as
opposed to ministerial) functions within the scope of their employment, and the court finds that
the contributions of immunity to “effective government” within the particular context would
outweigh the potential harm to individual citizens that might result from the employee’s being
immune from suit.143 This type of immunity is known as “absolute immunity,” and it does not
flow automatically from the government’s sovereign immunity, although it also operates to defeat
the court’s jurisdiction.
While the earliest decisions recognizing the doctrine of absolute immunity apparently were issued
by the Supreme Court and address only government employees,144 more recent decisions by the
lower courts have recognized that government contractors possess derivative absolute immunity
in at least certain circumstances.145 These decisions can be read narrowly, as granting derivative
absolute immunity to contractors only when they share information with the government or serve
as a financial intermediary.146 However, one such decision by the U.S. Court of Appeals for the
Fourth Circuit in Mangold v. Analytic Services, Inc., used particularly broad language in granting
immunity to the contractor, suggesting that the “delegation” of functions to contractors is
tantamount to delegation of functions to government employees:
Extending immunity to private contractors to protect an important government interest is not
novel. … If absolute immunity protects a particular government function, no matter how
many times or to what level that function is delegated, it is a small step to protect that
function when delegated to private contractors, particularly in light of the government’s
unquestioned need to delegate government functions.147
Contractors facing tort suits in contexts where courts have not previously granted them derivative
absolute immunity have attempted to rely on the broad language of Mangold. They have also
attempted to show that granting them immunity would comport with Westfall because they
performed discretionary functions, and granting them immunity would contribute to effective
government by, for example, ensuring that the government is free to contract out functions.148
While such attempts to expand the contexts in which derivative absolute immunity exists have
generally not succeeded, a few courts have accepted the argument that granting immunity to
contractors contributes to effective government by protecting the government’s ability to contract

143 Westfall v. Erwin, 484 U.S. 292, 299-300 (1988).
144 See Barr v. Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593 (1959).
145 See, e.g., Murray v. Northrop Grumman Info. Tech., Inc., 444 F.3d 169, 175 (2d Cir. 2006) (contractor has absolute
immunity for sharing information with national security implications with government officials in the course of
performing its duties); Mangold v. Analytic Servs., 77 F.3d 1442 (4th Cir. 1996) (contractor has absolute immunity for
statements made to government investigators looking into misconduct by government personnel).
146 Cf. Andrew Finkelman, Suing the Hired Guns: An Analysis of Two Federal Defenses to Tort Lawsuits against
Military Contractors, 34 BROOKLYN J. INT’L L. 395, 419 (2009). A narrow reading is arguably in keeping with the
Supreme Court’s unanimous decision in Westfall, which admonished courts to consider “whether the contribution to
effective government in particular contexts outweighs the potential harm to individual citizens” in determining whether
particular functions properly fall within the scope of absolute official immunity. Westfall, 484 U.S. at 299.
147 77 F.3d at 1447-48.
148 See, e.g., Al Shimari, 657 F. Supp. 2d at 714-20.
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out functions, which it must do because it “cannot perform all necessary and proper services
itself.”149
Derivative Feres Immunity
As noted previously, under the Feres doctrine, members of the military are barred from bringing
suit against the U.S. government for “injuries [that] arise out of or are in the course of activity
incident to service.”150 Although the Feres doctrine originally applied only when the service
member was injured by another service member, it was subsequently expanded to encompass
civilian employees of the government,151 and some government contractors have recently asserted
that it should be further extended to provide derivative Feres or “intramilitary” immunity to at
least some contractors. For example, in McMahon v. Presidential Airways, Inc., the contractors
argued that they should share in the government’s Feres immunity because “‘the reality of
modern warfare’ is such that contractors perform traditional military functions.”152 Although the
contractors argued that the Feres doctrine should bar any claim by a plaintiff who is a member of
the military,153 the Eleventh Circuit in McMahon refused to extend the doctrine to provide
military contractors with immunity. Given that the Supreme Court expressly declined to expand
the Feres doctrine so as to make it the basis for the government contractor defense when it
decided Boyle,154 the Eleventh Circuit felt that it could not, consistently with Boyle, expand Feres
here.
Potential Indemnification of Contractor Liability
An indemnification agreement is one in which one party to a contract agrees to hold the other
party harmless, secure the other party against loss or damage, or give security for the
reimbursement of the other party in the case of an anticipated loss.155 When the government has
agreed to indemnify the contractor, the government, not the contractor, may be obligated to pay
damages awarded to third parties in tort suits. An indemnification agreement does not allow a
contractor to avoid liability for its torts, unlike the jurisdictional defenses previously discussed.156
However, some commentators view an indemnification agreement as tantamount to avoiding
liability because the contractor does not have to pay the costs of its actions or omissions.
“Open-ended” indemnification agreements, of the type that would generally be necessary to cover
damages for death or bodily injuries in tort, are arguably rare in government contracts.157

149 TWI v. CACI Int’l, Inc., Case No. 1:07cv908, 2007 U.S. Dist. LEXIS 83342 (E.D. Va. 2007) (quoting Mangold, 77
F.3d at 1448).
150 See supra note 29.
151 United States v. Johnson, 481 U.S. 681, 686, 687 n.8 (1987).
152 460 F. Supp. 2d at 1325.
153 Id.
154 502 F.3d at 1354; 360 F.2 Supp. 2d at 1327-28.
155 See Black’s Law Dictionary 783 (8th ed. 2004).
156 Andrew D. Ness & Marcia G. Madsen, Trends in Contractor Liability for Hazardous Waste Cleanups: The Current
Legal Environment, 22 PUB. CONT. L.J. 581, 609 (1992/1993). An indemnification agreement “does not change the
identity of the liable party;” rather, it represents a promise that another party “will pay or reimburse the indemnified
party for the liability.” Id.
157 There are other indemnification agreements which are not “open-ended” as to the amount of the government’s
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Agencies must have explicit statutory authority to enter such agreements because these
agreements otherwise would run afoul of the Anti-Deficiency Act, which prohibits agencies from
obligating funds in excess or advance of an appropriation.158 Public Law (P.L.) 85-804, which
was enacted in the aftermath of the Korean War to allow agencies to provide various forms of
“extraordinary contractual relief” in situations involving the “national defense,” has historically
been the primary statutory authority that agencies rely upon when entering indemnification
agreements.159 Only the military departments and specified civilian agencies, including the
Atomic Energy Commission, the National Aeronautics and Space Administration, and the Federal
Emergency Management Agency, may enter indemnification agreements under the authority of
P.L. 85-804,160 and such agreements may only indemnify risks that are “unusually hazardous or
nuclear,” as those risks are defined in the contract.161 However, other statutory provisions
authorizing particular agencies to enter indemnification agreements also exist, most notably
Section 4 of the Price-Anderson Act, which authorizes the Department of Energy to indemnify its
contractors for claims arising from nuclear accidents,162 and since 2003, annual appropriations
riders, which authorize the Department of the Army to provide “for such indemnification as the
Secretary determines to be necessary.”163 Under an indemnification agreement, the government’s

(...continued)
potential liability. Agencies do not need express statutory authority to enter such agreements, although indemnification
must still constitute a “necessary expense” upon which the agency may spend appropriated funds. See, e.g., Gov't
Accountability Office, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW, Vol. II, at 6-71 (3d ed. 2006) (“Indemnification
agreements may be proper if they are limited to available appropriations.”). Such agreements can be broadly divided
into two types. In the first type of agreement, the maximum potential amount of indemnification is known at the time of
contracting, and funds sufficient to cover this contingent obligation can be reserved or recorded. See Vehicles—Charter
Coach Service, B-164646 (Nov. 26, 1968) (approving of a government agreement to indemnify damages to leased
buses caused by Selective Service registrants because the potential liability “was necessarily limited to the value of the
motor carrier’s equipment”); Bailments—Liability, B-150729 (June 19, 1963) (approving of a government agreement
to indemnify the owner of a leased aircraft for damages to the aircraft because the agency had no-year appropriations
available to pay for such liability, and the “maximum liability was measurable by the fair market value of the aircraft”).
In the second type of agreement, in contrast, the maximum potential amount of indemnification is not known at the
time of contracting, but the contract limits the indemnification to the “availability of appropriated funds at the time a
contingency occurs.” 48 C.F.R. § 52.228-7(d). See also Claim for Federal Reimbursement of State Disability Payments,
B-202518 (Jan. 8, 1982). However, both the Government Accountability Office (GAO) and contractors have expressed
discomfort with the second type of non-open-ended agreement. The GAO’s concerns center upon the “potentially
disruptive fiscal consequences” that such agreements could have for agencies, while contractors are concerned that
these agreements leave contractors at risk of not being fully indemnified for liability they might face. See PRINCIPLES OF
FEDERAL APPROPRIATIONS LAW, at 6-76.
158 31 U.S.C. § 1341(a).
159 An Act to Authorize the Making, Amendment and Modification of Contracts to Facilitate the National Defense, P.L.
85-804, 72 Stat. 972 (Aug. 28, 1958) (codified, as amended, at 50 U.S.C. §§ 1431-1435).
160 See Executive Order 10789, 23 Fed. Reg. 8897 (Nov. 15, 1958) (authorizing the Departments of Agriculture,
Commerce, the Interior, Transportation and the Treasury, as well as the Atomic Energy Commission, Federal
Emergency Management Agency, General Services Administration, Government Printing Office, National Aeronautics
and Space Administration, and Tennessee Valley Authority, to rely upon the authority of P.L. 85-804).
161 50 U.S.C. § 1431; 48 C.F.R. § 52.250-1(b)-(c).
162 42 U.S.C. § 2210. See also 10 U.S.C. § 2354 (indemnification under Department of Defense research and
development contracts); 42 U.S.C. § 9619 (indemnification of Superfund clean-up contractors).
163 Department of Defense Appropriations Act, 2010, P.L. 111-118, § 8072, 123 Stat. 3445 (Dec. 19, 2009) (“Provided
further, That contacts entered into under the authority of this section may provide for such indemnification as the
Secretary determines to be necessary.”); Consolidated Security, Disaster Assistance, and Continuing Appropriations
Act, 2009, P.L. 110-329, § 8072, 122 Stat. 3637 (Sept. 30, 2008) (same); Department of Defense Appropriations Act,
2008, P.L. 110-116, § 8075, 121 Stat. 1332 (Nov. 13, 2007) (same); Department of Defense Appropriations Act, 2007,
P.L. 109-289, § 8073, 120 Stat. 1290-91 (Sept. 29, 2006) (same); Department of Defense Appropriations Act, 2006,
P.L. 109-148, § 8082, 119 Stat. 2117 (Dec. 30, 2005): Department of Defense Appropriations Act, 2005, P.L. 108-287,
(continued...)
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obligation to pay is often contingent upon certain conditions being satisfied, including, in the case
of indemnification agreements entered into under P.L. 85-804, liability arising from those risks
identified the contract.164 It is, thus, not unheard of for the government and the contractor to
litigate whether the government is obligated, under the terms of the contract, to indemnify the
contactor after the contractor is found to be liable.165
At least one contractor facing tort suits has recently asserted that it has an indemnification
agreement with the government which would cover any liability it owes in these suits.166 The
merits of this claim cannot presently be assessed because the text of this indemnification clause is
classified, and it is unclear whether the damages that allegedly occurred resulted from the risks
that were addressed in the clause.167 The existence and potential terms of this agreement have
generated substantial congressional interest, in part because the contractor who seeks to rely on
the agreement could face suit by dozens, or even hundreds, of current and former members of the
National Guard who served in Iraq for damages resulting from their exposure to sodium
dichromate and subsequent hexavalent chromium poisoning.168
Conclusion
It remains to be seen how the issues raised by recent tort suits against federal contractors will play
out in the courts and what, if any, changes in statutes, regulations, or policies the legislative or
executive branches may make in response to court decisions. To date, congressional responses
have centered upon ensuring that arbitration agreements do not bar claims arising under Title VII
of the Civil Rights Act of 1964 or tort claims related to sexual assault or harassment and ensuring
that lack of personal jurisdiction does not bar suits against foreign defendants for harms to U.S.
persons occurring overseas.169 Other congressional responses to tort suits against government

(...continued)
§ 8090, 118 Stat. 118 Stat. 992 (Aug. 5, 2004); Department of Defense Appropriations Act, 2004, P.L. 108-87, § 8091,
117 Stat. 1093-94 (Sept. 30, 1993).
164 See, e.g., 48 C.F.R. § 52.250-1(b)-(c) (“[T]he Government shall, subject to the limitations contained in the other
paragraphs of this clause, indemnify the Contractor against—(1) [c]laims (including reasonable expenses of litigation
and settlement) by third persons (including employees of the Contractor) for death; personal injury; or loss of, damage
to, or loss of use of property; (2) [l]oss of, damage to, or loss of use of Contractor property, excluding loss of profit;
and (3) [l]oss of, damage to, or loss of use of Government property, excluding loss of profit. … This indemnification
applies only to the extent that the claim, loss, or damage (1) arises out of or results from a risk defined in this contract
as unusually hazardous or nuclear and (2) is not compensated for by insurance or otherwise.”). Indemnification
agreements entered into under the authority of P.L. 85-804 further provided that the contract must “[p]romptly notify
the Contracting Officer of any claim or action against, or any loss by, the Contractor or any subcontractors that may be
reasonably expected to involve indemnification under this clause” and “[c]omply with the Government’s directions …
in connection with settlement or defense of claims or actions.” 48 C.F.R. § 52.250-1(g)(1) & (4). See also 48 C.F.R. §
52.250-1(h) (noting that the “Government may direct, control, or assist in settling or defending any claim or action that
may involve indemnification under this clause.”).
165 See, e.g., E.I. Du Pont De Nemours & Co., Inc. v. United States, 365 F.3d 1367 (Fed. Cir. 2004) (finding that the
plaintiff was entitled to indemnification under the terms of the contract).
166 See Bixby, 2010 U.S. Dist. LEXIS, at *10.
167 See Principal Deputy Under Secretary of Defense, Acquisition, Technology and Logistics, Letter to Representative
Earl Blumenauer, Nov. 24, 2010 (copy on file with the authors).
168 See supra notes 41 to 51 and accompanying text.
169 See Department of Defense Appropriations Act, 2010, P.L. 111-118, § 8116, 123 Stat. 3454-55 (Dec. 19, 2009);
Lieutenant Colonel Dominic “Rocky” Baragona Justice for American Heroes Harmed by Contractors Act, S. 235, 112th
Cong. Similar bills were introduced in the 111th Congress (H.R. 2349, S. 526, S. 2782).
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contractors seek to hold contractors accountable for alleged wrongdoing by ensuring that they, not
the government, pay any liability,170 as well as by excluding contractors who engage in tortious
conduct that harms government personnel from government contracts171 and authorizing agencies
to deny award fees to contractors found to have harmed government personnel.172 There do not,
as yet, appear to have been any attempts to address, directly or indirectly, the barriers to subject
matter jurisdiction that have apparently emerged; or otherwise clarify when contractors may
avoid liability for tortious conduct because of the work they perform for the federal government.

Author Contact Information

Vivian S. Chu
Kate M. Manuel
Legislative Attorney
Legislative Attorney
vchu@crs.loc.gov, 7-4576
kmanuel@crs.loc.gov, 7-4477

170 See Accountability for Defense Contractors Act, H.R. 6310, 111th Cong., S. 3909, 111th Cong.
171 See Safety in Defense Contracting Act, H.R. 2825, 111th Cong.
172 See Ike Skelton National Defense Authorization Act for FY2011, P.L. 111-383, § 834,—Stat.—(Jan. 7, 2011).
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