PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETER TAYLOR,
Plaintiff-Appellant,
v.
No. 10-1543
KELLOGG BROWN & ROOT SERVICES,
INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(2:09-cv-00341-RGD-TEM)
Argued: October 26, 2010
Decided: September 21, 2011
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed in part and vacated in part by published opinion.
Judge King wrote the opinion, in which Judge Niemeyer
joined. Judge Niemeyer wrote a concurring opinion. Judge
Shedd wrote an opinion concurring in the judgment, in which
Judge Niemeyer joined.
2 TAYLOR v. KELLOGG BROWN & ROOT SERVICES
COUNSEL
ARGUED: William Shaw Stickman, DEL SOLE CAVA-
NAUGH STROYD LLC, Pittsburgh, Pennsylvania, for
Appellant. Lawrence S. Ebner, MCKENNA LONG &
ALDRIDGE LLP, Washington, D.C., for Appellee. ON
BRIEF: Raymond B. Biagini, Lisa M. Norrett, Daniel L. Rus-
sell, Jr., MCKENNA LONG & ALDRIDGE LLP, Washing-
ton, D.C., for Appellee.
OPINION
KING, Circuit Judge:
Peter Taylor appeals from the district court’s dismissal of
his negligence action against Kellogg Brown & Root Ser-
vices, Incorporated ("KBR"). On July 27, 2007, Taylor, an
enlisted United States Marine, was electrocuted and severely
injured while serving on an American military base in Iraq.
Taylor filed suit in the Eastern District of Virginia, alleging
that his injuries were proximately caused by the negligence of
KBR, a private contractor of the Army. KBR sought dismissal
of Taylor’s action for lack of subject matter jurisdiction, pur-
suant to Federal Rule of Civil Procedure 12(b)(1), contending
that his negligence claim is barred by the political question
doctrine, or, in the alternative, preempted by the "combat
activities" exception to the Federal Tort Claims Act (the
"FTCA"). By its decision of April 16, 2010, the district court
accepted both of KBR’s contentions and dismissed Taylor’s
negligence claim. See Taylor v. Kellogg Brown & Root Servs.,
Inc., No. 2:09-cv-00341 (E.D. Va. Apr. 16, 2010) (the "Opin-
ion").1 As explained below, we affirm the judgment on the
basis that an adjudication of Taylor’s claim against KBR
would necessarily implicate a political question, which the
1
The Opinion is found at J.A. 3-24. (Citations herein to "J.A. ___" refer
to the contents of the Joint Appendix filed by the parties in this appeal.)
TAYLOR v. KELLOGG BROWN & ROOT SERVICES 3
federal courts lack jurisdiction to decide. Accordingly, we
need not reach the FTCA preemption issue and we vacate that
aspect of the district court’s Opinion.
I.
A.
On July 24, 2009, Taylor initiated this civil action, alleging
a single common law negligence claim against KBR.2 When
the underlying events occurred in July 2007, Taylor was sta-
tioned at Marine Camp Fallujah near the city of Fallujah, Iraq
(the "Camp"), where he served as a Hospital Corpsman.
Inside the Camp were a tank ramp and a related assault vehi-
cle ramp (collectively, the "Tank Ramp"). The Tank Ramp
was used for the general maintenance of Marine tanks,
amphibious assault vehicles, and humvees, and was the only
Camp facility where tank maintenance occurred.
On July 27, 2007, the Tank Ramp’s main generator mal-
functioned. Because there had been several such power out-
ages, a group of Marines, including Taylor, decided to install
a wiring box at the Tank Ramp and hook up their own genera-
tor. When the Marines began installing the wiring box, the
Tank Ramp’s main generator had been turned off. While the
Marines were working, however, several KBR technicians
arrived at the Tank Ramp to perform repairs. They were
promptly advised by the Marines that work was being accom-
plished on the Tank Ramp’s main generator, which was not
to be turned on until the Marines confirmed that it was safe
2
Our factual recitation is drawn primarily from the Opinion, the Com-
plaint, and deposition testimony. The facts relevant to our disposition of
this appeal are not disputed — save for one that was resolved by the dis-
trict court after limited jurisdictional discovery, discussed infra. See Kerns
v. United States, 585 F.3d 187, 193 (4th Cir. 2009) (recognizing that dis-
trict court should conduct limited jurisdictional discovery to resolve fac-
tual disputes). That particular factual dispute has no bearing on our
disposition.
4 TAYLOR v. KELLOGG BROWN & ROOT SERVICES
to do so. Although the technicians agreed to the Marines’
request, one of them nevertheless turned on the main genera-
tor while the Marines were working on the wiring box.3 As a
result, a powerful electrical current surged through the wiring
box where Taylor was working, causing him to be badly elec-
trocuted and suffer severe injuries.
B.
On November 23, 2009, KBR filed its Rule 12(b)(1)
motion to dismiss Taylor’s negligence claim for lack of sub-
ject matter jurisdiction.4 KBR’s essential assertions were two-
fold: (1) that adjudication of Taylor’s claim would require a
judicial assessment of military operations and military deci-
sions made in fighting the Iraq War and thus presented a non-
justiciable political question; and (2) that Taylor’s claim is
preempted by the "combat activities" exception to the FTCA,
spelled out in 28 U.S.C. § 2680(j). With the motion’s support-
ing memorandum, KBR filed nine exhibits, including the dec-
larations of the Camp’s "Mayor," Marine Major Omar
Randall, and two enlisted Marines.5
3
In support of Taylor’s negligence claim against KBR, the Complaint
specifically alleges that,
upon being informed of [Taylor’s] work on the wiring box and
agreeing not to turn on the main generator, KBR assumed the
particular duty not to turn on the main generator and had actual
knowledge that turning on the generator would cause serious
injury to [Taylor].
Complaint ¶ 24. (The Complaint is found at J.A. 34-42.)
4
Rule 12(b)(1) specifies that a defense of lack of subject matter jurisdic-
tion may be asserted by motion made before pleading if a responsive
pleading is allowed. Although KBR’s motion to dismiss only asserts that
it was being made pursuant to "Rule 12," the supporting memorandum
clarifies that it was being pursued under Rule 12(b)(1).
5
The other six exhibits filed with KBR’s memorandum were: (1) a
"Task Order" explaining KBR’s responsibilities at the Camp; (2) a copy
of a document termed "Army Facilities Management"; (3) the "Army
TAYLOR v. KELLOGG BROWN & ROOT SERVICES 5
On December 4, 2009, Taylor filed in the district court a
legal memorandum opposing KBR’s Rule 12(b)(1) motion.
Taylor therein contended, inter alia, that the political question
doctrine does not apply because his negligence claim was
lodged against a private corporation and no decisions of the
legislative or executive branches were implicated. More par-
ticularly, Taylor maintained that any military orders should be
taken as "external constraints" within which KBR’s negligent
conduct against Taylor could be independently considered.
On December 10, 2009, KBR responded to Taylor’s opposi-
tion, contending that KBR’s defenses to Taylor’s negligence
claim would require the court to second-guess military poli-
cies, thus implicating decisions of the executive branch.
On February 1, 2010, the district court conducted a nonevi-
dentiary proceeding concerning KBR’s Rule 12(b)(1) motion,
and KBR specifically advised the court that it would be pre-
senting a contributory negligence defense.6 In response, the
court requested additional submissions on two subjects: (1)
the characteristics of the Tank Ramp; and (2) the situation on
the ground in Fallujah, specifically the nature of the military
hostilities, during the relevant time period. The following day,
the court entered a conforming order authorizing the parties
to conduct limited jurisdictional discovery. Then, on February
18, 2010, the court clarified its February 2 order and directed,
inter alia, that the deposition of Major Randall be completed
Safety Program," outlining Army safety regulations; (4) the "Sand Book,"
a manual on construction and base camp development; (5) regulations per-
taining to the "Logistics Civil Augmentation Program," under which the
Army hires private contractors; and (6) "The Safety Corner," a Marine
Corps safety presentation.
6
The parties agree that Virginia law applies to Taylor’s negligence
claim against KBR. In Virginia, contributory negligence is a complete
defense to such a claim, "based on the objective standard of whether a
plaintiff failed to act as a reasonable person would have acted for his own
safety under the circumstances." Ponirakis v. Choi, 546 S.E.2d 707, 710
(Va. 2001); see also Opinion 11 n.4.
6 TAYLOR v. KELLOGG BROWN & ROOT SERVICES
by the end of the month, and that KBR produce, to both Tay-
lor and the court, the relevant contract between KBR and the
Army (the "Contract").
Pursuant to the district court’s discovery orders, the parties
conducted the deposition of Major Randall, and it was filed
in connection with the Rule 12(b)(1) motion. The parties also
filed a map of the Camp, a copy of a Freedom of Information
Act request regarding Taylor’s injuries, and the Contract
itself. KBR then made what it called a "Supplemental Sub-
mission" on the Rule 12(b)(1) motion, describing the hostili-
ties in Fallujah and the Camp’s role therein, and explaining its
contentions concerning the political question doctrine and the
FTCA’s combat activities exception. Taylor made his own
supplemental submission opposing the Rule 12(b)(1) motion,
maintaining that the political question doctrine was not appli-
cable for at least three reasons: (1) Taylor’s injuries had not
occurred during a combat operation; (2) KBR technicians
were not under the plenary control of the military when they
arrived to conduct repairs on the Tank Ramp’s main genera-
tor; and (3) there was a relevant factual dispute concerning
whether the Marines’ actions in installing the wiring box were
authorized.7
C.
1.
By its Opinion of April 16, 2010, the district court granted
KBR’s Rule 12(b)(1) motion to dismiss, ruling in KBR’s
favor on both the political question doctrine and the FTCA’s
combat activities exception. As the Opinion related, the Camp
is located approximately fifteen miles outside Fallujah and
combat activities were ongoing in 2007. The military forces
7
In resolving this factual dispute, see supra note 2, the Opinion con-
cluded that the Marines had not been authorized to work on the Tank
Ramp. See Opinion 13.
TAYLOR v. KELLOGG BROWN & ROOT SERVICES 7
at the Camp included a Marine combat logistics battalion, a
Naval construction regiment, a Marine communications bat-
talion, a Marine transportation company, and Iraqi army units.
Other than the Iraqi army units, the Camp housed approxi-
mately 5000 personnel, with approximately 1200 of them
being members of a Marine Corps regimental combat team.
The military units at the Camp were directly involved in com-
bat operations and came under fire at least once or twice a
month. Among their other duties, the Marines at the Camp
provided support for supply convoys. The day-to-day support
functions of the Camp were overseen by a group of Marine
personnel called the "Mayor’s Cell." During Taylor’s service
at the Camp, Major Randall commanded the Mayor’s Cell.
However, the Camp and its personnel depended on military
contractors to keep things running. KBR was one of the sev-
eral contractors providing support to the military operations at
the Camp.
On December 14, 2001, KBR was awarded the Contract to
provide maintenance and management support at military
bases in Iraq.8 The Contract specified that KBR was to pro-
vide support for the Multi National Force-Iraq, which serves
as "the overall headquarters" of all coalition forces in Iraq.
J.A. 371. As such, although the Contract was made with the
Army, KBR provided support for non-Army personnel as
well. Of relevance here, KBR was obliged to install, inspect,
operate, repair, and maintain the electrical generators at the
Camp. The Contract delineated a "Statement of Work" for
KBR and provided, inter alia, that
[KBR] shall be responsible for safety of employees
and base camp residents during all [KBR] operations
8
The Contract was initially awarded to an entity called "Kellogg Brown
& Root, Incorporated." Pursuant to a novation made on August 1, 2003,
the Contract was transferred to a subsidiary entity that is the defendant
here, "Kellogg Brown & Root Services, Incorporated," which we call
"KBR."
8 TAYLOR v. KELLOGG BROWN & ROOT SERVICES
conducted in accordance with this Statement of
Work and the Army and Occupational Safety and
Health Administration (OSHA) safety regulations
and guidance as it applies to the Iraq Theatre of
Operations.
Id. at 584-85.
The Camp employed two methods for supplying electric
power to its various facilities. The first of those methods,
termed "prime power," utilized a connection to the Camp’s
primary power plant, while the alternative method involved
connecting a particular user to an individual generator. Cer-
tain critical facilities of the Camp were authorized to use
redundant power sources, typically in the form of secondary
and backup generators. The use of such secondary or backup
power, however, had to be authorized by the Mayor’s Cell. A
facility might be denied an authorization of backup power due
to "limited resources" or "priority of resources." J.A. 403-04.
For example, the Camp’s "battle square" was powered by
multiple backup generators, while certain facilities at the
Camp had no backup power at all. The Tank Ramp was
among the latter group; it was powered solely by an individ-
ual generator and had not been authorized by the Mayor’s
Cell for secondary or backup power.
2.
In assessing KBR’s political question contention, the dis-
trict court explained that "the key inquiry is whether a court
will have to consider the wisdom of military operations and
decision-making, or whether it need only consider the private
contractor’s performance." Opinion 9 (internal quotation
marks omitted).9 The court also recognized that, in making its
9
Pursuant to the political question doctrine, the judiciary is deprived of
jurisdiction to assess decisions exclusively committed to a separate branch
of government. For example, most military decisions lie solely within the
purview of the executive branch. See Baker v. Carr, 369 U.S. 186, 217
(1962).
TAYLOR v. KELLOGG BROWN & ROOT SERVICES 9
Rule 12(b)(1) analysis, it was entitled to look beyond the alle-
gations of the Complaint and consider how Taylor’s negli-
gence claim would be litigated.
The Opinion concluded that Taylor’s negligence claim
gave rise to a nonjusticiable political question that the court
was not permitted to assess. Specifically, KBR had placed the
district court on notice that it would raise a contributory negli-
gence defense, requiring a judicial assessment of military
operations and decisions made in the Iraq combat theatre. As
emphasized by the court,
[KBR] has indicated that it will defend this action,
at least in part, by raising a defense of contributory
negligence. This defense will inevitably force the
Court to question the judgment not only of [Taylor]
himself, but also of the United States military.
Id. at 11. As the Opinion explained, a judicial assessment of
the contributory negligence defense would "require the Court
to decide whether ‘the Marines’ made a reasonable decision"
to install a wiring box at the Tank Ramp. Id. at 12. The court
rejected Taylor’s contention that KBR’s actions could be iso-
lated and the military’s orders treated as "external con-
straints," because doing so "would completely eliminate the
political question doctrine in contractor suits." Id. at 12. The
court drew legal support for its conclusion from the Eleventh
Circuit’s recent decision in Carmichael v. Kellogg, Brown, &
Root Services, Inc., 572 F.3d 1271, 1275 (11th Cir. 2009).
There, the court of appeals concluded that determining the
amount of "control" that the military exercised over a contrac-
tor was merely a game of semantics, since KBR (in that case)
"was operating at all times under the orders and determina-
tions made by the military." Carmichael, 572 F.3d at 1284.
In further explaining its political question ruling, the dis-
trict court emphasized that
10 TAYLOR v. KELLOGG BROWN & ROOT SERVICES
the military determined how power should be sup-
plied to the [Tank Ramp]. The military authorized
certain individuals to perform electric maintenance
work, and forbade others from doing so. Members of
the military — acting without proper authorization
— decided to install a backup generator.
Opinion 13. An assessment of the contributory negligence
defense, according to the district court, would therefore "re-
quire an evaluation of several command decisions," such as
"whether back-up power should have been supplied to the
Tank Ramp." Id. at 12. Because it was the military that (1)
decided how to supply electric power to the Tank Ramp, and
(2) authorized who could work on the Camp’s generators, the
Opinion concluded that it was "not possible to view this case
in a vacuum, nor is it possible to resolve this case without
questioning actual sensitive judgments made by the military."
Id. at 13. (internal quotation marks omitted). As a result, the
district court ruled that Taylor’s negligence claim was barred
because it presented a nonjusticiable political question.10 Dis-
missal under Rule 12(b)(1) was thus warranted, and a judg-
10
The district court also analyzed the FTCA’s combat activities excep-
tion and decided that the exception barred Taylor’s negligence claim. See
Opinion 13-20. The FTCA generally authorizes damage claims against the
United States for the tortious actions of its employees, in the same manner
and to the same extent that a private individual would be liable under the
law of the place where the tortious conduct occurred. See 28 U.S.C.
§ 2674. The "combat activities" exception of the FTCA precludes Govern-
ment liability "arising out of the combat activities of the military or naval
forces, or the Coast Guard, during a time of war." Id. § 2680(j). In ruling
on the combat activities exception, the district court adopted the D.C. Cir-
cuit’s reasoning in Saleh v. Titan Corps., which explained that, "[d]uring
wartime, where a private service contractor is integrated into combat
activities over which the military retains command authority, a tort claim
arising out of the contractor’s engagement in such activities shall be pre-
empted." 580 F.3d 1, 9 (D.C. Cir. 2009). The district court concluded that
KBR’s maintenance of the Tank Ramp qualified as combat activity
because, as the court observed, "tanks are not deployed to peddle popsi-
cles." Opinion 19.
TAYLOR v. KELLOGG BROWN & ROOT SERVICES 11
ment to that effect was entered in favor of KBR on April 16,
2010.11
Taylor filed a timely notice of appeal, and we possess juris-
diction pursuant to 28 U.S.C. § 1291.
II.
We review de novo a district court’s dismissal for lack of
subject matter jurisdiction under Federal Rule of Civil Proce-
dure 12(b)(1). See Pitt Cnty. v. Hotels.com, L.P., 553 F.3d
308, 311 (4th Cir. 2009).
III.
A.
In pursuing this appeal, Taylor contends that his negligence
claim is not barred by the political question doctrine — and
that the district court erroneously ruled to the contrary —
because an adjudication of the claim would not require any
assessment of the Army’s retention of KBR or the terms of
the Contract. KBR, in turn, maintains that the court correctly
ruled that Taylor’s negligence claim is barred under the politi-
cal question doctrine because our adjudication of the claim
would require a judicial assessment of military decisions
made in a combat theatre — that is, decisions with respect to
whether backup power was to be supplied to the Tank Ramp
and whether the Marines should have been authorized to
install a backup generator at the Tank Ramp on their own
accord.
11
On April 19, 2010, the district court entered an amended judgment of
dismissal correcting its initial judgment that had inadvertently designated
the Rule 12(b)(1) motion as being "denied."
12 TAYLOR v. KELLOGG BROWN & ROOT SERVICES
1.
The political question doctrine had its genesis in the
Supreme Court’s decision of Marbury v. Madison, where
Chief Justice Marshall explained that "[q]uestions, in their
nature political, of which are, by the constitution and laws,
submitted to the executive, can never be made in this court."
5 U.S. (1 Cranch) 137, 170 (1803). More recently, in Baker
v. Carr, the Court articulated a six-factor test for assessing
whether a particular claim presents a nonjusticiable political
question. See 369 U.S. 186, 217 (1962). Three of those factors
— the first, second, and fourth — are pertinent here:
• First, an assessment of whether there has been "a
textually demonstrable constitutional commit-
ment of the issue to a coordinate political depart-
ment";
• Second, whether there is "a lack of judicially dis-
coverable and manageable standards for resolv-
ing [the question]"; and
• Fourth, whether there is an apparent impossibility
of a court’s independent resolution of the ques-
tion "without expressing lack of the respect due
to coordinate branches of government."
Id.12 KBR contends that an adjudication of Taylor’s negli-
gence claim would implicate a judicial assessment that runs
afoul of these three Baker factors. Specifically, the district
court would be required to assess the military’s decision on
12
The remaining three Baker factors are: Third, whether there is an
apparent "impossibility of deciding [the question] without an initial policy
determination of a kind clearly for nonjudicial discretion"; fifth, whether
there is "an unusual need for unquestioning adherence to a political deci-
sion already made"; and, sixth, whether there is a "potentiality of embar-
rassment from multifarious pronouncements by various departments on
one question." 369 U.S. at 217.
TAYLOR v. KELLOGG BROWN & ROOT SERVICES 13
how to supply power to the Tank Ramp (first factor); there is
no manageable judicial standard for assessing whether the
Marines involved in the underlying incident had been trained
properly (second factor); and, finally, an adjudication of Tay-
lor’s claim would show a lack of respect to the executive
branch (fourth factor).
In evaluating whether Taylor’s negligence claim against
KBR presents a nonjusticiable political question, we must rec-
ognize that KBR is not a part of the military. Nonetheless, we
are obliged to carefully assess the relationship between the
military and KBR, and to "look beyond the complaint, [and]
consider[ ] how [Taylor] might prove [his] claim[ ] and how
KBR would defend." Lane v. Halliburton, 529 F.3d 548, 565
(5th Cir. 2008); see Carmichael v. Kellogg, Brown, & Root
Servs., Inc., 572 F.3d 1271, 1292 (11th Cir. 2009) (deeming
political question doctrine applicable because KBR would
defend on ground that military decisions caused accident).
2.
We begin our inquiry by identifying the applicable legal
principles concerning political questions and military opera-
tions. Our decision in Tiffany v. United States is helpful in this
respect. See 931 F.2d 271 (4th Cir. 1991). There, a private
pilot had utilized an unauthorized flight plan, and, as a result,
several military planes scrambled over North Carolina to
determine whether the private plane was hostile. During their
encounter, one of the military aircraft collided with the private
plane, causing it to crash. Because the Government defended
the estate’s FTCA claim by asserting that the decision to
scramble fighter planes was related to the national defense,
our Court was called on to decide whether the political ques-
tion doctrine applied. We concluded that the FTCA claim
presented a nonjusticiable issue, emphasizing that the plaintiff
could not "reshape the national response to threats of hostile
air attack through the mechanism of tort law." Id. at 278. As
14 TAYLOR v. KELLOGG BROWN & ROOT SERVICES
Judge Wilkinson cogently explained, however, our decision
did not stand for the proposition
that any time a branch of the military asserts a
national defense interest to justify its acts, the court
must avert its eyes. The military does not enjoy a
blanket exemption from the need to proceed in a
non-negligent manner. When conducting training
exercises, for example, or acting in a civilian arena,
national defense interests may be more remote and
the military faces different restrictions.
Id. at 280.
Because the military (and certainly a military contractor) is
not, as a matter of course, insulated from liability when it
asserts a "national defense interest," we must, to resolve this
appeal, gauge the degree to which national defense interests
may be implicated in a judicial assessment of Taylor’s negli-
gence claim. Insofar as Tiffany did not address the justicia-
bility of a negligence claim initiated by a serviceman against
a private contractor concerning events that occurred in a com-
bat theatre, we look to our sister circuits for some guidance.
3.
In assessing the applicability of the political question doc-
trine, the district court identified and relied on the 2009 Elev-
enth Circuit decision in Carmichael. There, a negligence
claim initiated by Carmichael’s wife against KBR for injuries
that her husband, an Army Sergeant, had suffered in Iraq was
held barred by the political question doctrine. See 572 F.3d at
1275. Carmichael had been injured when a truck driven by a
KBR employee wrecked while moving in a military convoy,
and it was alleged that KBR had negligently failed to safely
navigate a dangerous curve. The convoy had been travelling
through notoriously hostile territory and was heavily milita-
rized. Furthermore, the KBR truck driver was under the "ple-
TAYLOR v. KELLOGG BROWN & ROOT SERVICES 15
nary control" of the military, which had decided when the
convoy would take place, where it would travel, and how fast
it would move. Id. at 1276. The court concluded that the polit-
ical question doctrine therefore barred Carmichael’s claim.
Pursuant to Carmichael, if a military contractor operates
under the plenary control of the military, the contractor’s
decisions may be considered as de facto military decisions.
Taylor contends that we should evaluate the reasonableness
of KBR’s acts within the parameters of the military’s orders
— that is, deeming such orders to be "external constraints"
within which KBR’s allegedly negligent acts should be
assessed. By way of analogy, Carmichael’s wife alleged that
KBR employees — rather than the military — controlled the
truck in which Carmichael had been injured and, notwith-
standing military regulations, the KBR driver could have
avoided the accident by slowing down or coming to a stop as
he approached the curve where the accident occurred. Car-
michael, 572 F.3d at 1284. The Eleventh Circuit rejected her
contention, however, concluding that the political question
doctrine barred her negligence claim against KBR because its
driver was under military orders and the defense would inevi-
tably rely on such orders. Id. at 1284-85.
More specifically, the court of appeals concluded that Mrs.
Carmichael’s claim ran afoul of the first and second Baker
factors. On the first factor, the court recognized that an adju-
dication of her negligence claim would involve assessing
issues constitutionally committed to the executive branch,
"[b]ecause the circumstances under which the accident took
place were so thoroughly pervaded by military judgment and
decisions." Carmichael, 572 F.3d at 1282-83. Assessing the
second Baker factor, the court observed that there were no
judicially discoverable and manageable standards for resolv-
ing the dispute — that is, because the claim was for KBR’s
negligence, the court had no way of assessing reasonableness
in the context of military orders and regulations. Id.
16 TAYLOR v. KELLOGG BROWN & ROOT SERVICES
A similar tack to the application of the political question
doctrine was taken in the Fifth Circuit’s decision in Lane v.
Halliburton, 529 F.3d 548, 554 (5th Cir. 2008). There, the
plaintiffs were all non-military personnel. Specifically, civil-
ian truck drivers, as well as their spouses and dependents,
were pursuing claims against KBR for injuries sustained
while working for KBR in Iraq. Their complaints alleged,
inter alia, fraud and misrepresentation, and the litigation cen-
tered on KBR’s promise of a safe work environment. The dis-
trict court had dismissed the consolidated cases because they
raised nonjusticiable political questions, in that KBR was
operating under orders of the military. On appeal, the Fifth
Circuit reversed and remanded. In so ruling, the court of
appeals concluded that, although the military was involved in
KBR’s operations in Iraq, "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." Lane, 529
F.3d at 561-62. As such, at least on the fraud and misrepre-
sentation claims, jurisdiction was not necessarily barred by
the political question doctrine and additional discovery was
warranted.
In this case, the district court did not directly rely on the
Baker factors, but deemed the Carmichael decision to be per-
suasive and ruled that Taylor’s negligence claim was barred
by the political question doctrine, explaining that "both Plain-
tiff and Defendant were operating at all times under orders
and determinations made by the military." Opinion 13 (inter-
nal quotation marks omitted). The court reasoned that "[i]t is
simply not possible to view this case in a vacuum," emphasiz-
ing that KBR was under orders of the military on how electric
power would be supplied to the Tank Ramp and concerning
who could work on the generators. Id.
Although the district court may have correctly recognized
that Taylor’s negligence claim could not be viewed in isola-
tion; nonetheless, that KBR was acting under orders of the
TAYLOR v. KELLOGG BROWN & ROOT SERVICES 17
military does not, in and of itself, insulate the claim from judi-
cial review. In disposing of this appeal, we must also assess,
first, the extent to which KBR was under the military’s con-
trol, and, second, whether national defense interests were
closely intertwined with the military’s decisions governing
KBR’s conduct.
4.
Unlike the situation in Carmichael, where the KBR truck
driver was under the military’s plenary control, the Contract
specifies that "[t]he contractor shall be responsible for the
safety of employees and base camp residents during all con-
tractor operations." J.A. 584. Moreover, the Contract provides
that "the contractor shall have exclusive supervisory authority
and responsibility over employees." Id. at 592. In other words,
unlike in Carmichael — where the military had plenary con-
trol over both the convoy and KBR — in this case the military
was not exercising direct control.
Because of the manner that responsibility was delegated to
KBR, the district court may have been incorrect in concluding
that "treat[ing] the military’s decisions as external constraints
. . . would completely eliminate the political question doctrine
from contractor suits." Opinion 12. Indeed, with respect to
generator maintenance at the Camp, KBR was nearly insu-
lated from direct military control and was itself solely respon-
sible for the safety of all "camp residents during all contractor
operations." J.A. 584.
Nonetheless, the district court correctly concluded that a
decision on the merits of Taylor’s negligence claim would
require the judiciary to question "actual, sensitive judgments
made by the military." Opinion 11 (internal quotation marks
omitted). More specifically, an analysis of KBR’s contribu-
tory negligence defense would "invariably require the Court
to decide whether . . . the Marines made a reasonable deci-
sion" in seeking to install the wiring box to add another elec-
18 TAYLOR v. KELLOGG BROWN & ROOT SERVICES
tric generator at the Tank Ramp. Id. (internal quotation marks
omitted). In assessing the contributory negligence defense and
the reasonableness of Taylor’s conduct, the court would be
obliged to evaluate military decisions made by the Mayor’s
Cell, including "whether back-up power should have been
supplied to the Tank Ramp area." Id. As the application of our
Tiffany decision makes clear, such an assessment, especially
the issue of whether to provide a backup generator for the
Tank Ramp, is beyond the scope of judicial review.13 In these
circumstances, therefore, the political question doctrine
deprived the district court of jurisdiction to adjudicate the
merits of Taylor’s negligence claim.
B.
Finally, because we agree with the district court that the
political question doctrine applies here, the second appellate
issue — whether Taylor’s negligence claim is preempted by
the FTCA’s combat activities exception — is rendered moot.
And, as we recently explained, our "customary practice when
a case is rendered moot on appeal is to vacate the moot
aspects of the lower court’s judgment." Norfolk S. Ry. Co. v.
City of Alexandria, 608 F.3d 150, 161 (4th Cir. 2010) (citing
Alvarez v. Smith, 130 S. Ct. 576, 581 (2009)). Typically, how-
ever, such a vacatur is only warranted where — as here —
"mootness has occurred through happenstance, rather than
13
More specifically, as Tiffany explained, such an assessment would run
afoul of the second and fourth Baker factors. In Tiffany itself, these factors
were implicated because (1) "[j]udges have no discoverable and manage-
able standards for resolving whether necessities of national defense out-
weigh risks to civilian aircraft," and (2) "[n]or [could] we even undertake
independent resolution without expressing lack of the respect due coordi-
nate branches of government." Tiffany, 931 F.2d at 279 (internal quotation
marks and alteration omitted). Here, we have no discoverable and manage-
able standards for evaluating how electric power is supplied to a military
base in a combat theatre or who should be authorized to work on the gen-
erators supplying that power. Furthermore, any such judicial assessment
thereof would show a lack of respect for the executive branch.
TAYLOR v. KELLOGG BROWN & ROOT SERVICES 19
through the voluntary action of the losing party." Id. at 162
(internal quotation marks omitted). Otherwise, a party seeking
appellate review of an adverse ruling, but which is frustrated
in that regard by "the vagaries of circumstance, ought not in
fairness be forced to acquiesce in the judgment." Id. (internal
quotation marks omitted).
Because the political question doctrine deprives the federal
courts of jurisdiction to resolve Taylor’s negligence claim, a
ruling on the FTCA issue would be little more than an advi-
sory opinion on a constitutional question — something the
Ashwander doctrine obliges us to avoid. See Ashwander v.
Tenn. Valley Auth., 297 U.S. 288, 341-47 (1936) (Brandeis,
J., concurring) (explaining that courts should not "decide
questions of a constitutional nature unless absolutely neces-
sary"). More specifically, our potential resolution of the
FTCA issue implicates the Supremacy Clause of the Constitu-
tion. See U.S. Const. art VI, cl. 2 ("This Constitution, and the
Laws of the United States . . . shall be the supreme Law of
the Land . . ."); Koohi v. United States, 976 F.2d 1328, 1333
(9th Cir. 1992) (recognizing that FTCA combat activities
exception preempts state law tort claim). In such circum-
stances, we are obliged to vacate the FTCA ruling, which con-
stitutes the moot aspect of the district court’s judgment.
IV.
Pursuant to the foregoing, we affirm in part and vacate in
part.
AFFIRMED IN PART
AND VACATED IN PART
NIEMEYER, Circuit Judge, concurring:
For the reasons stated both in Judge King’s opinion and in
my opinion in Al Shimari v. CACI International, Inc., ___
F.3d ___, No. 09-1335 (4th Cir. Sept. 21, 2011), I believe the
20 TAYLOR v. KELLOGG BROWN & ROOT SERVICES
political question doctrine requires dismissal of this case. I
also believe that federal preemption, as articulated by Judge
Shedd’s opinion and by our decision in Al Shimari, supports
dismissal of this case. As a result, I concur in both Judge
King’s opinion and Judge Shedd’s opinion with respect to
federal preemption, thus providing alternative grounds for the
judgment.
SHEDD, Circuit Judge, concurring in the judgment:
Because, at this early stage, I do not believe deciding Peter
Taylor’s case will cause the Court to "inevitably be drawn
into a reconsideration of military decisions," Lane v. Halli-
burton Corp., 529 F.3d 548, 563 (5th Cir. 2008), I am not
convinced that the political question doctrine applies in this
case. See also McMahon v. Presidential Airways, Inc., 502
F.3d 1331, 1365 (11th Cir. 2007) (same). I concur in the judg-
ment, however, because I agree that the district court correctly
dismissed Taylor’s negligence claim.
For the reasons stated in Saleh v. Titan Corp., 580 F.3d 1
(D.C. Cir. 2009), and in Al Shimari v. CACI International,
No. 09-1335 (4th Cir. 2011) and Al-Quraishi v. L-3 Services,
Inc., No. 10-1891 (4th Cir. 2011) — and also as found by the
district court — I believe that Taylor’s claim is displaced by
the uniquely federal interests in this case represented by the
Federal Tort Claims Act’s combatant activities exception, 28
U.S.C. § 2680(j). Under this approach, "where a civilian con-
tractor is integrated into wartime combatant activities over
which the military broadly retains command authority, tort
claims arising out of the contractors’ engagement in such
activities are preempted." Al Shimari, slip op. at 11-12. "Com-
batant activities" include "activities both necessary to and in
direct connection with actual hostilities," Johnson v. United
States, 170 F.2d 767, 770 (9th Cir. 1948), a standard satisfied
here.