Lane v. Halliburton

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
May 28, 2008

No. 06-20874 Charles R. Fulbruge III
Clerk

REGINALD CECIL LANE, an individual, by and through Linda Marlene
Lane, as the duly appointed Conservator/Guardian of Reginald Cecil Lane;
LINDA MARLENE LANE, an individual

Plaintiffs - Appellants
v.

HALLIBURTON, a Corporation; KELLOGG BROWN AND ROOT
HOLDINGS LLC; KELLOGG BROWN & ROOT INC, a Corporation and
Wholly Owned Subsidiary of Halliburton and Kellogg Brown and Root
Holdings LLC; SERVICE EMPLOYEES INTERNATIONAL INC, a Foreign
Corporation and Wholly Owned Subsidiary of Halliburton and Kellogg Brown
and Root International Inc; DII INDUSTRIES LLC, a Wholly Owned
Subsidiary of Halliburton Energy Services Inc, a Corporation;
HALLIBURTON ENERGY SERVICES INC, a Corporation; BROWN &
ROOT SERVICES, a Division of Kellogg Brown and Root, Inc, a Corporation;
KELLOGG BROWN & ROOT SERVICES INC, a Corporation and Wholly
Owned Subsidiary of Kellogg Brown and Root Inc; KELLOGG BROWN AND
ROOT INTERNATIONAL INC, a Corporation and a Wholly Owned
Subsidiary of Kellogg Brown and Root Inc, a Corporation; STRATEGIC
ECOMM INC; DOE DEFENDANTS 1 through 10

Defendants-Appellees

Consolidated with
No. 06-20905
 No. 06-20874

KEVIN SMITH-IDOL, Individually

Plaintiff - Appellant

v.

HALLIBURTON, a Corporation; KELLOGG BROWN & ROOT INC, a
Corporation and Wholly Owned Subsidiary of Haliburton; SERVICE
EMPLOYEES INTERNATIONAL INC, a Foreign Corporation and Wholly
Owned Subsidiary of Halliburton; KELLOGG BROWN & ROOT SERVICES
INC, a Subsidiary of Kellogg Brown & Root; DII INDUSTRIES LLC, the
Parent Company of Kellogg Brown & Root; KELLOGG BROWN AND ROOT
INTERNATIONAL INC, the Parent Company of Service Employees
International Inc

Defendants - Appellees

Consolidated with
No. 06-20915

INGRID FISHER, individually and as successor in interest to decedent
Steven Fisher; KRISTEN FISHER, individually and as successor in interest
to decedent Steven Fisher; STEVEN FISHER, JR, a minor, individually and
as successors in interest to decedent Steven Fisher by and through next
friend Ingrid Fisher; KATHLEEN FISHER, a minor individually and as
successors in interest to decedent, Steven Fisher, by and through next friend
Ingrid Fisher; MARJORIE BELL-SMITH, individually and as successor in
interest to decedent Timothy Bell; CHA SADIE TUNSTALL, a minor,
individually and as successor in interest to decedent Timothy Bell by and
through her next friend Jacqueline Tunstall; ANDREW JACKSON
BRADLEY, individually and as successor in interest to decedent William
Bradley; HOLLIE HULETT, individually and as successor in interest to
decedent Steven HULETT; ALEXANDRIA SLINGERLAND, individually and
as successor in interest to decedent Steven HULETT; JACK SLINGERLAND,
individually and as successor in interest to decedent Steven HULETT; LOIS
PARKER, individually and as successor in interest to decedent Jeffrey
Parker; MICHAEL BREZOVAY; NELSON HOWELL; BETSY MONTEGUE,
individually and as successor in interest to decedent Jack Montegue;

2
 No. 06-20874

JACQUELYNE MONTEGUE, a minor inividually and as successor in
interest to decedent Jack Montegue, by and through her next friend, Betsy
Montegue; DONNA HOWELL; JACKIE LESTER; NAOMI LESTER;
WILLIAM J PETERSON; EDWARD SANCHEZ, JR; DANA SANCHEZ;
CALVIN KEITH STANLEY; RAYMOND T STANNARD; RICKY L
TOLLISON; DANNY R WOOD; LISA HULETT, individually and as successor
in interest to decedent Steven Hulett; APRIL JOHNSON, individually and as
successor in interest to decedent Tony Johnson; JAMES BLACKWOOD;
JOANN BLACKWOOD; NICHOLAS T CAFFEY; a minor, individually and as
successor in interest to decedent Timothy Bell, by and through his next friend
Karen Caffey; TIMOTHY E CAFFEY, Individually and as successor in
interest to decedent Timothy Bell

Plaintiffs - Appellants
v.

HALLIBURTON, a Corporation; KELLOGG BROWN & ROOT INC, a
Corporation and Wholly Owned Subsidiary of Halliburton and Kellogg Brown
& Root Holdings LLC; SERVICE EMPLOYEES INTERNATIONAL INC, a
Foreign Corporation and Wholly Owned Subsidiary of Halliburton and
Kellogg Brown & Root International Inc; KELLOGG BROWN & ROOT
SERVICES INC, a Corporation and a Wholly Owned Subsidiary of Kellogg
Brown & Root Inc; DII INDUSTRIES LLC, a Wholly Owned Subsidiary of
Halliburton Energy Services Inc, a Corporation; KELLOGG BROWN AND
ROOT INTERNATIONAL INC, a Corporation and a Wholly Owned
Subsidiary of Kellogg Brown & Root Inc, a Corporation

Defendants - Appellees

Appeals from the United States District Court
for the Southern District of Texas

Before KING, DeMOSS, and SOUTHWICK, Circuit Judges.
SOUTHWICK, Circuit Judge:
This appeal consolidates three cases brought by civilian truck drivers, or
their spouses and dependents (collectively “Plaintiffs”), against Halliburton,
Kellogg Brown & Root, Inc., and various subsidiaries (collectively “KBR”), for

3
 No. 06-20874

injuries sustained while working for KBR in Iraq. The district court dismissed
all of the Plaintiffs’ claims with prejudice, holding that their cases were
nonjusticiable under the political question doctrine. On appeal, the Plaintiffs
argue that KBR has not shown that resolving their tort claims will require the
district court to answer a political question. We agree to the extent of concluding
that the case needs further factual development before it can be known whether
that doctrine is actually an impediment. We therefore reverse and remand.
I. FACTS AND PROCEEDINGS
A. Factual Background
Following the terrorist attacks of September 11, 2001, the United States
led a military invasion of Afghanistan and, later, Iraq. In order to support its
military mission, the United States Army awarded KBR a contract under the
authority of its Logistics Civil Augmentation Program (“LOGCAP”). Pursuant
to the LOGCAP contract, KBR provided logistical support services to the
military forces operating in Iraq.
Under LOGCAP, the Army is authorized to employ “civilian contractors
to perform selected services in wartime to augment Army forces.” U.S. Army
Reg. 700-137, at 1-1 (Dec. 16, 1985). LOGCAP contracts allow the Army to
“achieve the maximum combat potential . . . by capitalizing on the civilian sector
. . . .” Id. at 2-1(a). The record contains ample evidence that the military finds
the use of civilian contractors in support roles to be an essential component of
a successful war-time mission. Army Regulations provide that contractors
employed pursuant to LOGCAP are not under the direct supervision of the
military. U.S. Army Reg. 700-137, at 3-2(d). However, the regulations also
establish that the military must assess the risk of any mission and determine
whether contractor support is suitable in certain situations and locations. Id.
at 2-4(b), 3-1(a). This assessment must consider “the safety of contractor
personnel.” Id. at 3-1(a).

4
 No. 06-20874

The Army Field Manual makes clear that the military is responsible for
providing adequate force protection and a safe workplace for contractors and
their employees who are performing support services overseas. FM 3-100.21, at
6-4 to 6-6; see also Army Reg. 715-9, at 1-5(k)(2)-(3) (Oct. 29, 1999). The
provisions of the LOGCAP contract and the relevant implementing Task Orders
make the responsibility of the military explicit to provide security-related
intelligence gathering and force protection for KBR convoys in Iraq.
To fulfill its obligations under the LOGCAP contract, KBR recruited
civilian truck drivers in the United States to work in Iraq. Plaintiffs assert that
KBR’s recruitment materials misrepresented the risks that prospective
employees would face in Iraq. Plaintiffs allege that KBR portrayed the work
that the Plaintiffs would be performing as rebuilding activity and told recruits
that they would not be sent to work in a “war zone or combat area.” To support
their claims, Plaintiffs point to information such as a web site that assured
applicants that “[f]ull 24 hour a day U.S. military protection will be in place to
insure safety. With new heightened security you’ll be 100% safe.” In addition,
KBR circulated a memorandum to its employees asserting that while their work
would be performed in a “hostile environment . . . [t]his does not mean your
safety will be compromised.” The Plaintiffs allege that these and other
misrepresentations by KBR regarding the nature of the work and the level of
safety the Plaintiffs could expect in Iraq induced Plaintiffs to enter into and
remain in the employment of KBR.
Plaintiffs allege that KBR’s promises of a safe work environment were
proven false in April 2004. On April 8, 2004, Plaintiff Kevin Smith-Idol was
transporting fuel when his convoy came under attack by Iraqi insurgents.
Smith-Idol was injured as a result of the insurgent attack.1 The next day,

1
Smith-Idol v. Halliburton, et al., No. 06-20905 (5th Cir. filed Nov. 21, 2006).

5
 No. 06-20874

additional fuel convoys were deployed; attacks on these convoys resulted in the
injury and death of more KBR truck drivers.2 Plaintiffs allege that KBR
authorized these convoys even though it was aware that the routes they would
travel were subject to a very high risk of insurgent attack.
The Plaintiffs also allege that KBR misrepresented its ability to halt work
if conditions in Iraq posed a threat to employee safety. The KBR memorandum
discussed above also assured employees that “[e]ach of you has . . . authority to
stop any activity which you believe to be unsafe.” However, the Plaintiffs allege
that KBR failed to halt its convoys even though it knew conditions were unsafe
in April 2004 or failed to inform its employees that conditions were unsafe,
preventing them from opting not to participate in the convoys.
According to the Plaintiffs, KBR bears responsibility for their injuries
under various theories of state and federal law. Their state law claims break
down into two general categories. The first are fraud based claims including
fraud and deceit, fraud in the inducement, intentional concealment of material
facts, intentional misrepresentation, and civil conspiracy to commit fraud. The
essence of these claims is that KBR utilized intentionally misleading and false
advertisements and recruiting materials to induce Plaintiffs to accept
employment with KBR and relocate to Iraq. As a result of their reliance on these
statements, Plaintiffs allege that they suffered damages.
The second set of state law claims are not based on fraud. The Plaintiffs
in each of the three cases allege that KBR’s actions constituted intentional
infliction of emotional distress under Texas law. In addition, the Lane Plaintiffs
assert claims for negligence and gross negligence. Some of the Fisher Plaintiffs
assert wrongful death and survivorship causes of action under Texas law.

2
The two remaining consolidated cases involve drivers (or their representatives) who
were involved in the April 9 convoys. Lane v. Halliburton, et al., No. 06-20874 (5th Cir. filed
Nov. 13, 2006) (Lane and his wife); Fisher, et al. v. Halliburton, et al., No. 06-20915 (5th Cir.
filed Nov. 27, 2006).

6
 No. 06-20874

In addition to their state law claims, Plaintiff Smith-Idol and the Fisher
Plaintiffs allege federal civil rights violations under 42 U.S.C. § 1983 and
violations, along with conspiracy to commit violations, of the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c)-(d). The Lane
Plaintiffs do not allege violations of federal law.
B. Disposition by the District Court
The district court dismissed Fisher v. Halliburton first, holding that the
Plaintiffs’ claims raised nonjusticiable political questions.3 Under the district
court’s analysis, the Fisher Plaintiffs’ claims were “inextricable” from three of
the six political question formulations identified in Baker v. Carr, 369 U.S. 186,
217 (1962). Fisher v. Halliburton, 454 F. Supp. 2d 637, 639-45 (S.D. Tex. 2006).
First, the claims against KBR involved a textual constitutional commitment to
a coordinate political branch of government because resolution of those claims
would require the court to review the Executive’s conduct of military matters in
Iraq. Id. at 640-41. Next, the court stated that it was aware of no judicial
standards by which it could review the Army’s decisions regarding war-time
intelligence gathering, troop deployment, and convoy protection. Id. at 641-44.
Finally, the court suggested that a decision in the case would necessarily involve
a judicial determination as to whether it was appropriate for the military to

3
KBR argued alternatively that it was immune from suit under various theories of
official immunity and that the suit was barred by the Defense Base Act, 42 U.S.C. §§ 1651-
1654. The district court relied solely on the political question doctrine in dismissing the suit,
stating that KBR’s alternative defenses were moot due to the district court’s lack of subject
matter jurisdiction. Fisher, 454 F. Supp. 2d at 639 n.14. KBR has also raised those defenses
on appeal. However, we consider only whether the political question doctrine presents a
jurisdictional bar to the district court’s adjudication of the Plaintiffs’ claims. We express no
opinion on the merits of KBR’s alternative defenses to liability. Furthermore, we do not mean
to indicate that the district court is bound to continue its efforts to extricate the Plaintiffs’
claims from the military’s decisions indefinitely. If any of KBR’s alternative arguments “weigh
heavily in favor of dismissal,” the district court might determine whether there is a “less
burdensome course” of disposing of the Plaintiffs’ cases without reaching their merits. See
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 127 S. Ct. 1184, 1194 (2007).

7
 No. 06-20874

dispatch convoys in April 2004, and, in a broader sense, whether it was wise for
the Executive to use civilian contractors in a war zone. Id. at 644. The decision
would invoke the third Baker formulation because it would involve policy
determinations that were better suited for nonjudicial discretion. Id.
The district court’s order did not separately analyze the Fisher Plaintiffs’
various claims. Although it set forth the various claims, the order undertook a
general view of the case presented and concluded that it “[could not] try a case
on a battlefield during war-time without an impermissible intrusion into powers
expressly granted to the Executive by the Constitution.” Id. at 641. The district
court subsequently dismissed the two other cases that have been consolidated
for this appeal. The orders in both of those cases provide a brief factual and
procedural background unique to the respective plaintiffs, but grant KBR’s
motion to dismiss for the reasons enumerated in the Fisher Order. See Smith-
Idol v. Halliburton, No. 4:06-cv-01168, 2006 WL 2927685 (S.D. Tex. Oct. 11,
2006); Lane v. Halliburton, No. 4:06-cv-01971, 2006 WL 2796249, (S.D. Tex.
Sept. 26, 2006). Like the Fisher Order, these orders do not separate the
Plaintiffs’ various causes of action for analysis.
In the district court’s view, the most important facts in these three cases
were derived from the language of KBR’s LOGCAP contract and the relevant
Army regulations. These documents, governing KBR’s actions in every case and
overriding the individual facts of any particular case, “show overwhelmingly that
the Army was an integral part of any decision to deploy and protect convoys.”
Fisher, 454 F. Supp. 2d at 643.
II. DISCUSSION
A. Standard of Review
In each of these cases, the district court granted KBR’s motion to dismiss
for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). We review de novo the district court’s dismissal under Rule 12(b)(1),

8
 No. 06-20874

just as we would a dismissal under Rule 12(b)(6). Bombardier Aerospace
Employee Welfare Benefits Plan v. Ferrer, Poirot and Wansbrough, 354 F.3d 348,
351 (5th Cir. 2003). In reviewing the dismissal order, we take the well-pled
factual allegations of the complaint as true and view them in the light most
favorable to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205
(5th Cir. 2007).
Under Rule 12(b)(6), a claim should not be dismissed unless the court
determines that it is beyond doubt that the plaintiff cannot prove a plausible set
of facts that support the claim and would justify relief. Bell Atlantic Corp. v.
Twombly, 127 S. Ct. 1955, 1965-66 (2007). This analysis is generally confined
to a review of the complaint and its proper attachments. Fin. Acquisition
Partners v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006). However, under Rule
12(b)(1), the court may find a plausible set of facts by considering any of the
following: “(1) the complaint alone; (2) the complaint supplemented by the
undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.” Barrera-
Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996).
In these appeals, we must determine by viewing the allegations in the
most favorable light, whether the Plaintiffs can prove any plausible set of facts
that would permit recovery against KBR without compelling the court to answer
a nonjusticiable political question. Specifically, would resolving the Plaintiffs’
tort-based legal claims invariably require analyzing the Executive’s war-time
decision-making, or do KBR’s actions and motives form the sole issues?
B. Political Question Doctrine – General Principles
“Questions, in their nature political, or which are, by the constitution and
laws, submitted to the executive, can never be made in this court.” Marbury v.
Madison, 5 U.S. 137, 170 (1803). This “political question” doctrine reflects the
principle that, under our Constitution, there are some questions that cannot be

9
 No. 06-20874

answered by the judicial branch. Out of due respect for our coordinate branches
and recognizing that a court is incompetent to make final resolution of certain
matters, these political questions are deemed “nonjusticiable.” See Baker, 369
U.S. at 198. A declination of jurisdiction under the doctrine presupposes that
another branch of government is both capable of and better suited for resolving
the “political” question. See Vieth v. Jubelirer, 541 U.S. 267, 277 (2004); Japan
Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 229-30 (1986).
Political questions are labeled “nonjusticiable” because there is an
undeniable difference between finding no federal jurisdiction at the outset of a
case and declaring that a particular matter is inappropriate for judicial
resolution only after some consideration of the merits. Baker, 369 U.S. at 198.
In the instance of nonjusticiability, consideration of the cause is not
wholly and immediately foreclosed; rather, the Court’s inquiry
necessarily proceeds to the point of deciding whether the duty
asserted can be judicially identified and its breach judicially
determined, and whether protection for the right asserted can be
judicially molded.
Id. The Baker analysis is not satisfied by “semantic cataloguing” of a particular
matter as one implicating “foreign policy” or “national security.” Instead, Baker
demands a “discriminating inquiry into the precise facts and posture of the
particular case” before a court may withhold its own constitutional power to
resolve cases and controversies. Id. at 216.
To aid courts in the “discriminating inquiry,” the Supreme Court identified
“formulations” that may help determine whether a particular case raises a
political question, which we enumerate though the Supreme Court did not:
(1) “a textually demonstrable constitutional commitment of the issue to
a coordinate political department;”
(2) “a lack of judicially discoverable and manageable standards for
resolving it;”

10
 No. 06-20874

(3) “the impossibility of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion;”
(4) “the impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government;”
(5) “an unusual need for unquestioning adherence to a political decision
already made;”
(6) “or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.”
369 U.S. at 217. “[T]he inextricable presence of one or more of these factors will
render the case nonjusticiable under the Article III ‘case or controversy’
requirement . . . .” Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of
Petroleum, 577 F.2d 1196, 1203 (5th Cir. 1978).
At the outset, we acknowledge that the Plaintiffs’ claims are set against
the backdrop of United States military action in Iraq. Thus, these cases are at
the very least in sight of an arena in which the political question doctrine has
served one of its most important and traditional functions – precluding judicial
review of decisions made by the Executive during wartime. At one time, the
Supreme Court appeared to have categorically removed disputes implicating “the
conduct of foreign relations” from judicial purview. See Oetjen v. Cent. Leather
Co., 246 U.S. 297, 302 (1918). Later, the Court declared that “it is not the
function of the Judiciary to entertain private litigation – even by a citizen –
which challenges the legality, the wisdom, or the propriety of the Commander-
in-Chief in sending our armed forces abroad or to any particular region.”
Johnson v. Eisentrager, 339 U.S. 763, 789 (1950). And in Gilligan v. Morgan, in
the course of declaring nonjusticiable a challenge to readiness decisions made
and orders given by the Ohio National Guard, the Court made the following
observation:

11
 No. 06-20874

It would be difficult to think of a clearer example of the type of
governmental action that was intended by the Constitution to be left
to the political branches . . . . Moreover, it is difficult to conceive of
an area of governmental activity in which the courts have less
competence. The complex subtle, and professional decisions as to
the composition, training, equipping, and control of a military force
are essentially professional military judgments, subject always to
civilian control of the Legislative and Executive Branches. The
ultimate responsibility for these decisions is appropriately vested in
branches of the government which are periodically subject to
electoral accountability.
413 U.S. 1, 10 (1973). This court has followed the command that matters
implicating foreign relations and military affairs are generally beyond the
authority or competency of a court’s adjudicative powers. E.g., Farmer v. Mabus,
940 F.2d 921, 923 (5th Cir. 1991); Occidental, 577 F.2d at 1203.
On the other hand, not all questions “touching foreign relations” are
nonjusticiable. Baker, 369 U.S. at 211; see Can v. United States, 14 F.3d 160,
163 (2d Cir. 1994) (“The political question doctrine must be cautiously invoked
. . . .”). Indeed, the Court warned that “it is error to suppose that every case or
controversy which touches foreign relations lies beyond judicial cognizance.” Id.
Before declaring cases such as these to be nonjusticiable, a court must undertake
“a discriminating analysis of the particular question posed, in terms of the
history of its management by the political branches, of its susceptibility to
judicial handling in the light of its nature and posture in the specific case, and
of the possible consequences of judicial action.” Id. at 211-12; see Dickson v.
Ford, 521 F.2d 234, 235-36 (5th Cir. 1975).
With these principles in mind, we turn to the district court’s application
of the Baker formulations to these particular cases.
C. Application of the Baker Formulations
The district court concluded that the Plaintiffs’ cases met “not one, but
three of the formulations described in Baker v. Carr.” Fisher, 454 F. Supp. 2d

12
 No. 06-20874

at 644. As we discuss the Baker factors, we are mindful that the purpose of the
political question doctrine is to bar claims that have the potential to undermine
the separation-of-powers design of our federal government. Although the Baker
formulations provide useful analytical guideposts in our analysis, “[w]hether an
issue presents a nonjusticiable political question cannot be determined by a
precise formula.” Saldano v. O’Connell, 322 F.3d 365, 368 (5th Cir. 2003). We
are asked to declare that the very design of our federal government compels the
Plaintiffs to seek redress from the political branches for KBR’s alleged
fraudulent and negligent acts. This requires a “delicate exercise in
constitutional interpretation,” an exercise that is not satisfied by simplistically
plugging facts into factors. See Baker, 369 U.S. at 211.
1. Textual commitment
The district court first found that the issues raised by the Plaintiffs’ claims
implicated a “textually demonstrable constitutional commitment” to the
Executive Branch, namely, that war and foreign policy decisions are for the
Executive. Fisher, 454 F. Supp. 2d at 640-41. Of course, the Constitution
commits to Congress the power to raise and support an army and navy, and to
the Executive the responsibilities of commanding those armed forces. U.S.
Const. art. I, § 1, cls. 12-14; art. II, § 2. The “decisions whether and under what
circumstances to employ military force are constitutionally reserved for [these
two] branches.” Tiffany v. United States, 931 F.2d 271, 277 (4th Cir. 1991). The
“strategy and tactics employed on the battlefield are clearly not subject to
judicial review.” Id.
We disagree with the district court’s “textual commitment” analysis
because at this stage 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. Examples of cases that implicate a textual
commitment of constitutional authority to the Executive Branch include a

13
 No. 06-20874

challenge to the President’s decision to deploy troops in a foreign land,
Eisentrager, 339 U.S. at 789, or mine the harbors of another country in the
course of a war against that country, DaCosta v. Laird, 471 F.2d 1146, 1153-57
(2d Cir. 1973); so too has such a textual commitment been involved when a suit
seeks judicial oversight of training procedures employed by the National Guard,
Gilligan, 413 U.S. at 5-10, requests an injunction of all nuclear testing, Pauling
v. McNamara, 331 F.2d 796 (D.C. Cir. 1963), or requires the resolution of a
territorial dispute between foreign sovereigns, Occidental, 577 F.2d at 1202-03.
These are matters that the President is constitutionally privileged to address.
In addition, as these cases suggest, the first Baker formulation is primarily
concerned with direct challenges to actions taken by a coordinate branch of the
federal government. See McMahon v. Presidential Airways, Inc., 502 F.3d 1331,
1359 (11th Cir. 2007). KBR is not part of a coordinate branch of the federal
government. Therefore, to invoke the “textual commitment” factor, KBR faces
a “double burden.” Id. “First, [KBR] must demonstrate that the claims against
it will require reexamination of a decision by the military. Then, it must
demonstrate that the military decision at issue is . . . insulated from judicial
review.” Id. at 1359-60 (emphasis in original; citation omitted).
Contrary to the situations regarding matters of war, there is no textual
commitment to the coordinate branches of the authority to adjudicate the merits
of the Plaintiffs’ claims against KBR for breach of its duties. In fact, when faced
with an “ordinary tort suit,” the textual commitment factor actually weighs in
favor of resolution by the judiciary. See Klinghoffer v. S.N.C. Achille Lauro, 937
F.2d 44, 49-50 (2d Cir. 1991). It is an extraordinary occasion, indeed, when the
political branches delve into matters of tort-based compensation. See, e.g.,
September 11th Victim Compensation Fund of 2001, Pub. L. No. 107-42, §§ 401-
409, 115 Stat. 230, 237-41 (2001). Viewing the facts in a light most favorable to
the Plaintiffs, their claims challenge actions taken and omissions made only by

14
 No. 06-20874

KBR. That company’s conduct can be examined by a federal court without
violating the Constitution’s separation of powers.
2. Lack of Judicially Manageable Standards
A political question looms menacingly when a claim suffers from “a lack
of judicially discoverable and manageable standards for resolving it.” Baker, 369
U.S. at 217. “One of the most obvious limitations imposed by [Article III, § 1, of
the Constitution] is that judicial action must be governed by standard, by rule.”
Vieth, 541 U.S. at 278 (plurality opinion). This is arguably the most critical
factor in the political question analysis in the present litigation because at least
some of the allegations would draw a court into a consideration of what
constituted adequate force protection for the convoys.4
This factor relates most directly to our later analysis of the elements that
the Plaintiffs must prove in order to prevail on their state tort claims.
Consequently, our analysis under Baker is incomplete, as it is not until the final
section of the opinion – where we review in some depth what the Plaintiffs must
prove to prevail – that all considerations will be reviewed. What is the cart, and
which is the horse, may be disputed, but we seek to get the proper analytical
alignment before we are finished.
The district court found that the actions of KBR and the Army regarding
the decision-making and control of the Plaintiffs’ convoys were so intertwined
that to question KBR’s decisions is necessarily to question the Army’s decisions.
Fisher, 454 F. Supp. 2d at 642. In the district court’s view, in order for the

4
We recognize that the first and second Baker factors overlap in the circumstances
presented by these cases, where military judgments are potentially subject to review. The
Plaintiffs’ claims, which do not directly challenge any government actor or Executive action,
are far-enough removed from the type of textual commitment envisioned by Baker and its
progeny to shift our primary analysis to the second factor. However, we do not suggest that
the first factor is wholly irrelevant. On remand, the district court may well find that it
continues to be an important consideration in these cases. Again, we are mindful that the
claims need not fit neatly under a particular factor. The inextricableness of any factor will
reveal the existence of a political question. Occidental, 577 F.2d at 1203.

15
 No. 06-20874

Plaintiffs to prevail, the court would have to determine whether the Army gave
sufficient information to KBR about the route the convoys were to take, whether
the force protection provisions were sufficient, and whether the military
personnel assigned to protect the convoys performed properly.
KBR argues that the judiciary will find no manageable standards for
assessing the reasonableness of the Army’s professional military judgments.
The Plaintiffs stress that Army judgments are not the issue. Instead, it is
argued that the fraud and negligence claims, leveled only against KBR, are
uniquely suited for judicial resolution. American courts have resolved such
matters between private litigants since before the adoption of the Constitution.
See THE FEDERALIST NO. 80 (Alexander Hamilton). KBR does not deny that the
judiciary possesses the expertise and has available the required standards to
resolve ordinary fraud and negligence claims, but suggests that the unique
factual setting of Plaintiffs’ injuries renders these claims extraordinary.
KBR’s argument and the district court’s opinion rely on the fact that the
relevant LOGCAP contracts and implementing Task Orders place the
responsibility for force protection squarely on the Army. Warding off attacks
capable of inflicting injury on these civilian truck drivers was a military duty,
not a duty owed by KBR to its employees. KBR’s argument in effect is that no
matter how unsafe the roads of Iraq might be, KBR’s assurances to potential
employees could be made under the assumption that the military would provide
sufficient force protection for any convoy mission.5 A court, KBR posits, can
neither ignore the Army’s role in these cases nor judge whether the Army
adequately performed that role.

5
At oral argument, counsel for KBR suggested that only if KBR could determine that
the military had breached the LOGCAP contract could it then refuse to direct its civilian
employees to participate in a convoy. The only example of a demonstrable breach that counsel
could provide was the military’s failure to “show up at the gate” at the appointed departure
time; that is, a failure to provide any force protection at all.

16
 No. 06-20874

Evaluating this assertion by KBR requires us to understand just what the
Plaintiffs must prove to prevail. We defer a detailed discussion of that until
later when we review the elements of Texas tort law. The central issue will be
causation. If we must examine the Army’s contribution to causation, “political
question” will loom large. However, the Plaintiffs have presented a plausible set
of facts as to the fraud and misrepresentation claims that might allow causation
to be proven under one tort doctrine without questioning the Army’s role. That
would occur if KBR made assurances to prospective employees that were
premised on others, such as the Army, performing in a way that was unrealistic
to expect or even impossible. As this court noted long ago, “[i]f the misconduct
is of a character which, according to the usual experience of mankind, is
calculated to afford an opportunity for the intervention of some subsequent
cause, the subsequent mischief may be held to be a result of such misconduct.”
The Mariner, 17 F.2d 253, 254 (5th Cir. 1927). The Plaintiffs allege that they
accepted employment in a war zone because KBR guaranteed that they would
not be dispatched to perform work if conditions were unsafe. If KBR tortiously
guaranteed safety when it knew there was no such safety, it may be liable for
resulting injuries despite that the immediate causes were determined attackers
that could not be thwarted by the best efforts of American defenders. These are
the risks to which KBR allegedly promised not to expose the Plaintiffs. We will
later discuss the tort standards for judging causation in such cases.
We now review how such claims as we just defined them might violate the
second Baker factor. The factor is a recognition that “courts are fundamentally
underequipped to formulate national policies or develop standards for matters
not legal in nature.” Japan Whaling, 478 U.S. at 230 (quoting United States ex
rel. Joseph v. Cannon, 642 F.2d 1373, 1379 (D.C. Cir. 1981)).
In Japan Whaling, the Supreme Court faced a challenge to the Secretary
of State’s refusal to certify that Japan’s whaling practices were out of compliance

17
 No. 06-20874

with an international treaty; this certification was allegedly mandated by certain
congressional legislation. Id. at 224-28. The Court acknowledged “the premier
role which both Congress and the Executive play in [the field of foreign
relations],” but resolved the challenge nonetheless because a decision in the case
“call[ed] for applying no more than the traditional rules of statutory
construction, and then applying this analysis to the particular set of facts
presented below.” Id. at 230. The ready availability of legal standards and the
traditional role of the judiciary in interpreting statutes compelled the court to
resolve the matter even while it recognized that its “decision may have
significant political overtones.” Id.
By contrast, the court in Cannon could find no judicial standards by which
to resolve a claim that a Senator’s aide was illegally paid his federal salary while
engaging in campaign activity. 642 F.2d at 1375-76. Describing the suit as a
“challenge to the interworkings of a Senator and his staff member,” the court
noted the utter absence of statutory, administrative or case law – on which
courts rely on to resolve legal disputes – covering this particular matter. Id. at
1379-80. In fact, the Senate itself had failed to reach a consensus on the issue
confronting the court. Id. at 1380. Under these circumstances, the court refused
to resolve the dispute because doing so would “require the judiciary to develop
rules of behavior for the Legislative Branch.” Id. at 1385; see also Tiffany, 931
F.2d at 278-79 (refusing to craft “prudent intercept” standard for judging
whether North American Air Defense Command’s order to intercept potentially
hostile aircraft was legally sufficient).
The cases before us are closer to Japan Whaling than Cannon or Tiffany.
They primarily raise legal questions that may be resolved by the application of
traditional tort standards that we discuss below. We are not asked to develop
a “prudent force protection” standard and then impose that standard directly on
the Army. See Tiffany, 931 F.2d at 278-79. While the resolution of Plaintiffs’

18
 No. 06-20874

claims may require a court to adjust traditional tort standards to account for the
“less than hospitable environment” in which KBR operated, the court will
arguably have no need to develop any standards at all. Cf. McMahon, 502 F.2d
at 1363-64. The standards for judging at least the assertions of civilian
employers that cause injury to their employees are readily available.
3. Nonjudicial policy determination
The district court also determined that a resolution of the Plaintiffs’ claims
would necessarily entail a judicial pronouncement as to the wisdom of the
military’s use of civilian contractors in a war zone. Id. at 644.6 As such, the
court would be compelled to make a policy determination that is reserved to the
discretion of the political branches, implicating the third Baker factor. Id. If
that is part of the Plaintiffs’ claims, then the political question doctrine does
prevent resolution. For example, the Eleventh Circuit refused to entertain tort
suits by Turkish sailors against the United States Navy for injuries sustained
during a multi-national military training exercise because, inter alia, resolution
of the suits would require the court to “render a policy determination regarding
the necessity of simulating actual battle conditions.” Aktepe v. United States,
105 F.3d 1400, 1404 (11th Cir. 1997). The judiciary cannot announce policy
positions on military readiness for which it is neither equipped nor, more
importantly, constitutionally empowered to speak.

6
In its brief as amicus curiae in support of KBR, the National Defense Industrial
Association stresses the importance of the combat support services that civilian contractors
have long provided to the United States Armed Forces. It suggests that a decision that KBR
may be liable for the Plaintiffs’ injuries may deter civilian contractors from entering military-
related contracts in the future. We agree that the employment of civilian contractors has
proved vital to the military’s maximizing its force projection. Though we make no final
determinations today, if some liability ultimately is imposed, it likely would be for torts largely
committed in this country during the hiring process, with damages arising in a war zone. The
impact of such a result on a civilian company’s willingness to contract with the military is not
a factor that we may use to deny Plaintiffs a forum in federal court. See Japan Whaling, 478
U.S. at 230 (“[W]e cannot shirk this responsibility [to resolve justiciable cases] merely because
our decision may have significant political overtones.”).

19
 No. 06-20874

To recover, the Plaintiffs may not need a court to evaluate the Executive’s
longstanding policy of employing civilian contractors in combat-support roles.
KBR’s intended defense has not been shown as legitimately implicating this
broad, policy-based decision. All parties accept that the Executive acted within
his discretionary authority to employ KBR to support the military mission in
Iraq. The court will be asked to judge KBR’s policies and actions, not those of
the military or Executive Branch.
In sum, our analysis of the Baker factors convinces us that the district
court will not inevitably be drawn into a reconsideration of military decisions or
be forced to announce its opposition to an Executive or Congressional policy.
Instead, as we discuss below, the application of traditional tort standards may
permit the district court to navigate through this politically significant case
without confronting a political question.
We turn now to the tort elements and attempt a “discriminating inquiry
into the precise facts and posture” of these cases against KBR.
D. The Plaintiffs’ Claims
We find it useful at the beginning of this final section of analysis to
identify with some precision the elements Plaintiffs must prove in order to
prevail on their tort claims. Ultimately, we focus our attention on causation
because it is under this element that the confluence of the Plaintiffs’ proof and
KBR’s defense presents the greatest potential for inextricableness.7
1. Claims and Elements

7
On appeal, the Plaintiffs have focused their efforts on demonstrating that the fraud
claims and “traditional personal injury claims” are justiciable. Therefore, we do not attempt
to set forth the elements necessary to establish the alleged violations of federal law under 42
U.S.C. § 1983 and 18 U.S.C. § 1962(c)-(d). Still, we do not deem these claims to be waived.
The district court dismissed all claims based on a lack of jurisdiction; the court did not consider
the merits of any particular claim. In light of our decision today, all of the Plaintiffs’ claims
remain viable unless and until a “discriminating inquiry” reveals that they are, in fact,
nonjusticiable under the political question doctrine.

20
 No. 06-20874

Plaintiffs’ fraud-based claims arise under Texas law. To recover for fraud
in Texas, the Plaintiffs must prove: “(1) that a material representation was
made; (2) the representation was false; (3) when the representation was made,
the speaker knew it was false or made it recklessly without any knowledge of its
truth and as a positive assertion; (4) the speaker made the representation with
the intent that the other party should act upon it; (5) the party acted in reliance
on the representation, and (6) the party thereby suffered injury.” In re
FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001); see also Stone v. Lawyers
Title Ins. Corp., 554 S.W.2d 183, 185 (Tex. 1977). These elements are applicable
to claims of both fraud in the inducement and intentional misrepresentation.
See Haase v. Glazner, 62 S.W.3d 795, 798-99 (Tex. 2001); RenCare, Ltd. v. United
Med. Res., Inc., 180 S.W.3d 160, 166 (Tex. App. 2005).
The Plaintiffs’ claim of intentional or fraudulent concealment is also
grounded in common law fraud. To prevail on a fraudulent concealment claim,
the Plaintiffs must prove the elements of fraud that we have noted above, and
that “the particular circumstances impose a duty on the party to speak and he
deliberately remains silent.” In re Seigel, 198 S.W.3d 21, 29 (Tex. App. 2006).
In order to prove their final fraud-based claim of civil conspiracy, the Plaintiffs
must show that two or more persons combined “to accomplish an unlawful
purpose or to accomplish a lawful purpose by unlawful means.” Eagle Props.,
Ltd. v. KPMG Peat Marwick, 912 S.W.2d 825, 828 (Tex. App. 1995). “The
elements of a civil conspiracy are: (1) two or more persons; (2) an end to be
accomplished; (3) meeting of the minds on the end or course of action; (4) one or
more overt, unlawful acts; and (5) proximately resulting in injury.” Id.
With regard to their remaining claims, all Plaintiffs allege that KBR
intentionally inflicted emotional distress. In order to prevail on these claims
under Texas law, the Plaintiffs must show that the defendant: (1) intentionally
or recklessly (2) engaged in conduct that was “extreme and outrageous” (3)

21
 No. 06-20874

thereby causing the plaintiff to suffer emotional distress (4) and that distress
was severe. Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606,
613 (5th Cir. 1999). The Lane Plaintiffs also allege that KBR committed
negligent and grossly negligent acts. “Under Texas law, the elements of a
negligence claim are (1) a legal duty on the part of the defendant; (2) breach of
that duty; and (3) damages proximately resulting from that breach.” Sport
Supply Group, Inc. v. Columbia Cas. Co., 335 F.3d 453, 466 (5th Cir. 2003).
Gross negligence is a heightened form of negligence which requires proof of “an
extreme degree of risk” and a “conscious indifference” by the negligent actor. See
Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998).
2. Element of Causation
With the parameters of the political question doctrine and the nature and
elements of the Plaintiffs’ tort claims in mind, we focus on the element that is
the most critical element for political question analysis – causation. The parties
in their briefs appear to agree that this element presents the greatest potential
for implicating the political question bar. This element is critical because we
must “analyze appellant’s claim as it would be tried, to determine whether a
political question will emerge.” Occidental, 577 F.2d at 1202. We must look
beyond the complaint, considering how the Plaintiffs might prove their claims
and how KBR would defend. Nonetheless, a court must satisfy itself that
political question will certainly and inextricably present itself. Id.
We recognize that the district court was not presented with a focused
argument regarding the significance of the causation element. Much more was
presented below. For example, in the suit brought by Fisher’s survivors, KBR
initially moved to dismiss on the grounds that the Defense Base Act, 42 U.S.C.
§§ 1651-1654, and the Federal Tort Claims Act barred the Plaintiffs suit. Later
KBR renewed its motion to dismiss, arguing that it was immune from suit under
the doctrines of official immunity, derivative sovereign immunity, impact-on-the-

22
 No. 06-20874

federal-treasury immunity under Land v. Dollar, 330 U.S. 731 (1947), and the
Defense Production Act of 1950, 50 App. U.S.C. § 2061 et seq. KBR also re-urged
its Defense Base Act defense and argued for the first time that the Plaintiffs’
claims were nonjusticiable under the political question doctrine. However, only
in a third motion – a reply to the Plaintiffs’ opposition to KBR’s motion to
dismiss – did KBR begin to focus its argument on the difficulty of proving
causation without second-guessing military actions and decisions. The Plaintiffs
responded (in a six-page surreply) by arguing that only KBR’s actions needed to
be examined in order to determine direct and proximate cause. These motions
were filed only three weeks prior to the district court’s final order dismissing the
Plaintiffs’ claims under the political question doctrine.
Only after the district court’s final judgment has the broader array of
defenses been laid aside, permitting the parties to sharpen their appellate
arguments regarding the importance of the causation element in any political
question analysis of these claims. We regret that the district court did not
benefit in the first instance from these arguments, but we cannot ignore their
import on appeal. Invocation of the political question doctrine implicates the
district court’s jurisdiction. We are “duty-bound to examine the basis of subject
matter jurisdiction sua sponte, even on appeal.” Union Planters Bank Nat’l
Ass’n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004) (reversed on jurisdictional
challenge not raised until appellate reply brief). Our analysis has the benefit of
arguments not presented to the district judge, which because of the nature of the
issue does not invoke considerations of waiver that often would apply. We are
only seeking to determine, based on all that we may consider, whether there is
a plausible set of facts that supports the claim and would justify relief.
Twombly, 127 S.Ct. at 1965-66.
KBR argues that no determination as to causation can be made without
examining whether the Army fulfilled its contractual duty to provide force

23
 No. 06-20874

protection for the KBR convoys. Assuming that Plaintiffs could establish all
other elements of their claims, they must still demonstrate that the acts or
omissions of KBR – as opposed to those of the Army or Iraqi insurgents –
proximately caused their injuries. KBR has made clear that, were a trial to be
held, its defense would involve the alleged inadequacy of the Army’s intelligence
gathering, route selection and defensive response to the attacks that actually
occurred. In other words, KBR would make the case that Plaintiffs’ injuries
were not caused by KBR’s actions or inactions, but by the insurgents’ attack and
the Army’s failure to provide adequate protection of the convoy.
The Plaintiffs counter KBR’s argument by pointing to a familiar theory of
tort law that permits recovery even though another actor or cause intervenes to
be the direct cause of injury. See RESTATEMENT (SECOND) OF TORTS §§ 448-449
(1965); PROSSER AND KEETON ON THE LAW OF TORTS § 44, at 303-06 (W. Page
Keeton et. al., eds., 5th ed. 1987). According to the Restatement, “[i]f the
likelihood that a third person may act in a particular manner is the hazard or
one of the hazards which makes the actor negligent, such an act whether
innocent, negligent, intentionally tortious, or criminal does not prevent the actor
from being liable for harm caused thereby.” REST. (2D) TORTS § 449. Texas
courts have applied this theory of liability in previous cases. See Nixon v. Mr.
Prop. Mgmt., 690 S.W.2d 546, 549 (Tex. 1985); Kimbriel Produce Co. v. Mayo,
180 S.W.2d 504, 507 (Tex. Civ. App. 1944); see also Engle v. Dinehart, No. 99-
10087, 2000 WL 554942, **11-12 (5th Cir. April 19, 2000) (unpublished) (noting
that Texas courts have adopted the causation theory embodied in Sections 448
and 449 of the Restatement); cf. Sheridan v. United States, 487 U.S. 392, 398
(1988) (interpreting Federal Tort Claims Act) (“[I]n at least some situations the
fact that an injury was directly caused by an assault or battery will not preclude
liability against the Government for negligently allowing the assault to occur.”).
The comments to Section 449 elaborate on this theory of causation:

24
 No. 06-20874

The happening of the very event the likelihood of which makes the
actor’s conduct negligent and so subjects the actor to liability cannot
relieve him from liability. The duty to refrain from the act
committed or to do the act omitted is imposed to protect the other
from this very danger. To deny recovery because the other’s
exposure to the very risk from which it was the purpose of the duty
to protect him resulted in harm to him, would be to deprive the
other of all protection and to make the duty a nullity.
REST. (2D) TORTS § 449, cmt. b.8 Although couched in terms of negligence, this
theory of causation is applicable to intentional torts as well. Id. at § 870, cmt. l.
Applying the Restatement approach to the events leading to the Plaintiffs’
injuries and bearing in mind our standard for reviewing a Rule 12(b)(1)
dismissal, we cannot say that all plausible sets of facts that would permit the
recovery from KBR would also raise a political question. The Plaintiffs and KBR
were not strangers in Iraq, possessing no duties to each other. The Plaintiffs
were in Iraq as employees of KBR and, more particularly the Plaintiffs allege,
because KBR had drawn them there with explicit representations of safety.
Assuming, as we must, that Plaintiffs’ allegations are true, KBR might be seen
as making representations as to safety knowing it likely that the Government
could not provide the assured risk-free environment. Causation would exist if
KBR’s misrepresentations were a cause in fact of the Plaintiffs’ ultimate injuries.
See Nixon, 690 S.W.2d at 549 (“Cause in fact denotes that the negligent act or
omission was a substantial factor in bringing about the injury and without which
no harm would have been incurred.”).
Under this theory of causation, the district court may be able to resolve the
Plaintiffs’ fraud and negligence claims under Texas tort law without second-
guessing the acts and decisions of the Army. The court would be asked to
determine whether KBR made assurances to the Plaintiffs about conditions in

8
The Reporter’s Notes to Section 449 cite Jesse French Piano & Organ Co. v. Phelps,
105 S.W. 225 (Tex. Civ. App. 1907), as authority for the last two sentences of Comment b.

25
 No. 06-20874

Iraq which KBR knew or should have known were untrue. This determination
may very well require a review of the information KBR received from the Army,
understanding also when it was received. The question would be what KBR did
after receiving the information, not how ably the military gathered or
interpreted it. The Plaintiffs do not allege that the Army guaranteed their
safety; they allege KBR did. Therefore, the court may not have to inquire into
the adequacy of the Army’s intelligence and planning to determine whether,
based on the information it possessed, KBR made misrepresentations or
breached a duty to its employees.
For example, the Plaintiffs might prove that, based on the intelligence
provided to KBR by the military and collected by KBR’s own employees, that
KBR knew or should have known at the time that it was recruiting the Plaintiffs
to work for KBR in Iraq that the situation was likely to be so hostile that KBR
could not reasonably believe that its employees would be “100% safe.” Similarly,
later in Iraq when the April 2004 convoys were about to roll out, KBR might be
shown to have known of the likelihood of danger and that KBR had assumed a
duty to its employees not to proceed in such circumstances. The evidence may
instead reveal that, based on the information available to KBR, it did not make
any fraudulent misrepresentations or that it did not have any duty to the
Plaintiffs that was breached. Under either scenario, the cases might be triable
without raising a political question because the court could assess KBR’s liability
by simply being aware of the information the military provided to KBR, not
second-guessing that information.
Proving KBR’s negligent breach of a duty in Iraq not to allow a convoy to
proceed if conditions were too dangerous will involve rather different evidence
than would proof of misrepresentations made during hiring or later about safety.
Though the causation analysis applies to both issues, at some point the political
question analysis between the two will likely diverge. The Plaintiffs’ negligence

26
 No. 06-20874

allegations move precariously close to implicating the political question doctrine,
and further factual development very well may demonstrate that the claims are
barred. However, like the fraud claims, we cannot say at this point that
negligence claims necessarily implicate the political question doctrine.
Distinguishable from political question concerns is the fact that a trial
might require the use of classified information. As the district court in this case
has already demonstrated, federal courts are capable of evaluating sensitive or
privileged information in camera and providing other needed protections.
3. Cases relied on by the District Court
In reaching its conclusion that Plaintiffs’ claims were barred by the
political question doctrine, the district court relied on two other district court
opinions that barred tort suits against private contractors operating in a war
zone. See Smith v. Halliburton, No. 4:06-cv-00462, 2006 WL 2521326 (S.D. Tex.
Aug. 30, 2006) (unpublished); Whitaker v. Kellogg Brown & Root, 444 F. Supp.
2d 1277 (M.D. Ga. 2006).9 Among the distinctions we find significant, in Smith
the injuries occurred inside a military base in Iraq after a suicide bomber
penetrated security checkpoints operated solely by the military. Smith, 2006
WL 2521326, at **4-6. Whitaker involved a claim by an American soldier
against private contractors whom he was ordered to escort in Iraq. 444 F. Supp.
2d at 1279, 1281 n.4.10 There are other recent precedents that find tort claims
against civilian contractors performing support services in a war zone do not
necessarily raise nonjusticiable political questions. See McMahon, 502 F.3d at
1357-65; Carmichael v. Kellogg, Brown & Root Servs., 450 F. Supp. 2d 1373,

9
These decisions were not appealed.
10
Of course, the political branches have long-provided “simple, certain and uniform
compensation” for members of the armed forces who suffer service-related injuries. See United
States v. Johnson, 481 U.S. 681, 688-90 (1987) (citing the Veterans’ Benefits Act, codified as
amended at 38 U.S.C. § 301 et. seq).

27
 No. 06-20874

1374-76 (N.D. Ga. 2006); Potts v. Dyncorp Int’l, LLC, 465 F. Supp. 2d 1245, 1248-
54 (M.D. Ala. 2006); cf. Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 15-16 (D.D.C.
2005) (“An action for damages arising from the acts of private contractors and
not seeking injunctive relief does not involve the courts in ‘overseeing the
conduct of foreign policy or the use and disposition of military power.’”) (quoting
Luftig v. McNamara, 373 F.2d 664, 666 (D.C. Cir. 1967)).
In summary, different cases involving different claims require their own
discriminating inquiry under Baker.
III. CONCLUSION
We recognize the difficulty presented by cases that arise at least in part
in a war zone. There are constitutional as well as practical considerations that
may prevent judicial resolution. It appears, though, that these tort-based claims
of civilian employees against their civilian employers can be separated from the
political questions that loom so large in the background.
The district court already has exhibited a willingness to make a
discriminating inquiry into the facts and applicable legal standards. This court
on appeal has had the advantage not available below of the parties’ sharpened
focus on the legal requirements of the torts on which these claims are based.
That focus has revealed that it may be possible to resolve the claims without
needing to make a constitutionally impermissible review of wartime decision-
making. It is conceivable that further development of the facts on remand will
again send this case toward the political question barrier. Permitting this
matter to proceed now does not preclude the possibility that the district court
will again need to decide whether a political question inextricably arises in this
suit. The litigation is not yet there, if it ever will be.
REVERSED and REMANDED for proceedings consistent with this
opinion.

28