Even if you’re not a lawyer, you may be aware that traditionally the U.S. military establishment enjoys a lot of immunity for casualties that happen to those who wear the nation’s uniform.
For example, the Federal Tort Claims Act (FTCA ) is a statute enacted by Congress in 1948 that permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States. As the FTCA constitutes a limited waiver of sovereign immunity, it comes as no great shock that subsequently the Pentagon would want something in writing that would protect it from such legal actions.
So back in 1950 the Supreme Court ruled that the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough, and resulting from the negligence of others in the armed forces. The opinion, known as the Feres Doctrine is an extension of the English common-law concept of sovereign immunity.
Fast forward half a century and today we have a military establishment that depends mightily on private military contractors (PMC). Although they are civilians, not regular military forces, they too frequently enjoy immunity from legal action.
The question is: should they?
That is the subject of a recent law journal article by Spencer R. Nelson, who should be receiving his J.D. degree this year from George Mason University law school. In Establishing a Practical Solution for Tort Claims Against Private Military Contractors: Analyzing the Federal Tort Claims Act’s `Combatant Activities Exception’ Via a Circuit Split published in George Mason University Civil Rights Law Journal, he argues that allowing private military contractors to be sued in some circumstances is the correct course of action.
Consider his opening scenario:
Imagine that a civilian, Bob Jones, works at a military base in a war zone – Kabul, Afghanistan. One day while using the restroom, through no fault of his own, Bob slips and breaks his leg. Bob later learns that the floor tiles in the restroom were installed and maintained improperly, making them prone to slide and shift when stepped on. Bob also learns that a private military contractor installed and maintained the bathroom facilities – not the United States Military. Bob sues the contractor for negligence, but is unsuccessful. The court rules that the private military contractor cannot be sued in tort because the “combatant activities exception” contained in the Federal Tort Claims Act (FTCA) preempts state tort law, granting the contractor immunity.
This hypothetical illustrates one side of a current split in legal rationale: should non-military persons be able to sue in tort a private military contractor who provides services negligently? In other words, can private military contractors who execute service contracts for the United States be granted immunity under the combatant activities exception contained in the FTCA? In Saleh v. Titan Corporation, the D.C. Circuit Court of Appeals ruled that the combatant activities exception did apply to private military contractors who supplied services to the military, thus granting them immunity from a suit in tort. On the other hand, in Koohi v. United States, the Ninth Circuit Court of Appeals held that the combatant activities exception only applied to those against whom force is directed, thus allowing private military contractors to be sued in some circumstances. Both cases relied on Boyle v. United Technologies Corp., a 1988 Supreme Court case, and both have spawned criticism and contrary holdings…
Considering the United States’ increased reliance on private military contractors, this Comment argues that Koohi’s interpretation of Boyle and the FTCA is the correct holding.
Some unavoidable background is necessary to understand the arguments, so bear with me.
Nelson explains that on April 27, 1983, David A. Boyle died when the helicopter he was piloting crashed off the Virginia coastline. Although he survived the initial impact, he drowned when he was unable to open the emergency escape hatch because the water pressure on the outward opening door was too great. Boyle’s father sued the contractor who made the helicopter for failing to design an inward opening door. The Court ruled for the private military contractor, holding that where a procurement contract was at issue, federal law preempts state tort law, thus extending the FTCA discretionary function exception to the private military contractor. [Battleland wrote of this peculiar state of affairs more than a quarter-century ago.]
The majority framed its analysis by recognizing that the Court has been reluctant to allow federal law to preempt state law, but will do so in cases where a “uniquely federal interest” is involved. The Court held that two such federal interests are (1) the obligations and rights in federal contracts and (2) the liability of federal officials in the course of their duty. The Court then recognized that in the present case, the second “uniquely federal interest” was satisfied: there was a private military contractor carrying out duties outlined in a federal contract. The Court reasoned that although a private military contractor was in the course of its duty – not a federal officer – the federal contract for the private military contractor “obviously implicated the same interest in getting the Government’s work done.” Thus, the Court deemed a procurement contract to be a uniquely federal interest.
But the Court also held that a procurement contract is a uniquely federal interest, the Court said that this is a “necessary” but not “sufficient” condition for the displacement of state tort law. Relying on a previous case, the Court held that the necessary condition for displacement of state law is a “significant conflict” between federal policies, interests, or legislation and the operation of state law. The significant conflict that the Court identified in Boyle was the discretionary function exception of the FTCA.
In short, the Boyle Court assessed the discretionary function exception by first identifying a uniquely federal interest – federal contracts and the liability associated with them – and applying that uniquely federal interest to private military contractors. Second, the Court required and identified a significant conflict with state tort law – the discretionary function exception. The uniquely federal interest and the significant conflict were enough to apply the FTCA exception to a procurement contract.
Four years after Boyle, the Ninth Circuit expanded the reasoning of Boyle by holding that the combatant activities exception, like the discretionary function exception, could be used to preempt state law, thus barring a tort claim against a private military contractor. The essential facts of Koohi are similar to those of Boyle. A private military contractor installed the Aegis Air Defense System, a weapons system that was designed to shoot down enemy aircraft, on the USS Vincennes, a U.S. naval cruiser. On the morning of July 3, 1988, the Vincennes dispatched reconnaissance helicopters to investigate Iranian gunboat activity during an undeclared “tanker war” that was part of the larger hostilities between Iran and Iraq. Iranian anti-aircraft guns allegedly fired on the helicopters.
Meanwhile, Iran Air Flight 655 took off from a joint military-commercial airport in Bandar Abbas, Iran. Flight 655 crossed the path of the Vincennes and the warship shot it down, mistaking it for an Iranian fighter jet. Heirs of the deceased passengers and crew of Flight 655 sued the United States for the Vincennes‘ allegedly negligent operation, and the private military contractor for design defects in the Aegis Air Defense System.
Although the Ninth Circuit never explicitly mentioned the Boyle terms of “uniquely federal interest” or “significant conflict,” it is clear that the court grounded its reasoning upon the Boyle case. First, it used Boyle to hold that the FTCA exceptions can be used to preempt state tort law, thus barring claims against private military contractors. The Ninth Circuit then held that the combatant activities exception should preempt state law. In supporting its answer, the Ninth Circuit couched its reasoning in terms of “reasonable care,” holding that “one 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 Ninth Circuit explained that while the private military contractor may have owed a duty of reasonable care to United States service members, it certainly owed no such duty to enemy forces or persons associated with enemy forces. If liability were imposed on the private military contractor, the Ninth Circuit reasoned that this would go against Boyle’s injunction that preemption of state law is appropriate when liability of the private military contractor would “produce [the] same effect sought to be avoided by the FTCA exemption.”
But — and this is an important but — by couching its reasoning and the combatant activities exception in terms of reasonable care – and who should be the recipient of reasonable care – the Ninth Circuit left open the possibility that federal law will not always preempt state tort law in regard to private military contractors who seek refuge under the combatant activities exception.
For example, Koohi’s holding regarding the combatant activities exception explains that “no duty of reasonable care is owed to those against whom force is directed as a result of authorized military action.” This holding states two propositions. First, military contractors have a duty of reasonable care, but that duty of care is suspended against those to “whom force is directed.” Second, the government or military must authorize this use of force. Thus, when one of these elements is not satisfied, a court invoking Koohi could hold that federal law should not preempt state law when the combatant activities exception is at issue.
Other courts, however, took a different view. The Saleh v. Titan Corporation case is fundamentally different from both Boyle and Koohi because Saleh covered a service contract, not a procurement contract, and thus is not a products liability case. Rather, the PMC in Saleh provided translation and interrogation services for the United States military. These private military contractors were stationed at Abu Ghraib military prison during the Iraq war and were involved in the alleged “abuse” and “harm” the detainees.
The new test that the Saleh court put forward for deciding if a private military contractor should be a part of the preemption of state law is whether the “private service contractor is integrated into combatant activities over which the military retains command authority.” In fashioning this test, the court rejected the district court’s formulation of an “exclusive operational control” test, reasoning that such a test would be too high of a standard for private military contractors to meet. Because the only argument in Saleh was the degree to which the private military contractors were integrated into the military’s operational activities, and not whether they were integrated at all, the court ruled that state law was preempted and the claims against the private military contractors were barred.
In short, the Saleh court leaves no room for a duty of care analysis because it holds that anything that arises out of a combatant activity will preempt state law. This reasoning conflicts with Koohi’s reasonable care language. Furthermore, Saleh holds that service contracts fall under the combatant activities exception whereas Koohi dealt with a procurement contract and products liability, thus also making the two cases factually distinguishable.
These cases have generated various legal theories, i.e., the Legal Purist Theory, Textualist Theory, Reasonable Care Theory, and the No Tort Liability Theory, which I’m not going to go into here. But here is what Nelson concludes:
When considered in light of Legislative and Executive Branch intent, the Koohi holding is appropriate because it recognizes that private contractors do have a duty of care and risk civil and criminal liability, but that risk excludes those “against whom force is directed as a result of authorized military action.” The Koohi holding could be developed into a simple, two-step test that could be incorporated into the Boyle “significant conflict” analysis. First, there would be an assumption of reasonable care because the Executive Branch has said that private military contractors need to obey United States laws. What is “reasonable” could be adapted to each war zone and individual situation. The first question to ask would be whether force was directed against a perceived enemy. If no, then the contractor could and should be held liable to some extent. If yes, then the next question would be whether the activity or action in question was a result of “authorized military action.” If the activity or action in question was the result of authorized military action, then a “significant conflict” would exist and the contractor would not be held liable.
The Koohi test is a better approach than the Saleh test because the Saleh test introduces an additional step that is unrelated to the combatant activities exception and the Boyle analysis. The additional step allows private military contractors to be granted immunity when the “private service contractor is integrated into combatant activities over which the military retains command authority.” The military and the Executive Branch have been clear that the military does not retain command or control over private military contractors. In Army field manuals that were current during the Saleh litigation, the Army stated that private military contractors are not part of the “chain of command” and that commanders do not have “direct control over contractors or their employees.” The Army field manuals also stated that “only contractors directly manage and supervise their employees” and “it must be clearly understood that commanders do not have direct control over contractor employees.” Additionally, the contractor has the “most immediate influence” in dealing with disciplinary problems with employees. Updated Army manuals state similar propositions, saying, “Contractor personnel are not part of the operational chain of command. They are managed in accordance with terms and conditions of their contract.” The Department of Defense has stated that “contractor personnel are civilians accompanying the U.S. Armed Forces.”
The danger in the Saleh test is that it provides for much more judicial oversight of the military than is necessary because the court is not willing to trust what the military has stated – that contractors are not part of the chain of command…
A Koohi-like test is also favorable because it would help the relationship between private military contractors and the United States government. In August 2011, the Commission on Wartime Contracting in Iraq and Afghanistan (the Commission) – a bipartisan congressional committee – stated that heavy reliance on private military contractors has “overwhelmed” the government’s ability to properly manage contractors and, therefore, the commission concluded that the government is “over-reliant” on private military contractors. This has led to a lack of oversight of private military contractors and the need for a “cultural shift” within the Department of Defense. The Government Accountability Office has also noted that the Department of Defense’s contract management has been on the “high-risk-program lists” since 1992 because of weak contractor accountability. One specific problem that the Commission identified is the inability of the courts to gain jurisdiction over some contractors for tort claims, mainly foreign contractors. The Commission recommended making consent to United States civil jurisdiction a condition of awarding the contract. This recommendation would be defeated if the judiciary embraces a policy that eliminates tort liability from the battlefield. Such a policy would continue to foster and promote the lack of accountability that currently exists. Rather, the judiciary should adopt the Koohi test, which would hold contractors accountable by using general tort principles.
If his recommendation is adopted, some PMC corporate counsels are bound to be spending some sleepless nights in the not-too-distant future.
David Isenberg is the author of the book Shadow Force: Private Security Contractors in Iraq and blogs at The PMSC Observer. He is a senior analyst at Wikistrat and a Navy veteran.