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1 VECTORS TO FINAL: Suggestions for navigating military aviation accident cases By: Bob Spohrer and Keith Maynard Since the events of 9-11 the United States military has significantly increased its presence and activities throughout the world in support of the War on Terror. Even as the conflicts in Iraq and Afghanistan have largely wound down, new hot spots continue to appear on the U.S. radar, which require our assistance. With its ability to put troops on the ground and rounds on targets, aviation is at the forefront of modern military operations. Due to the harsh environments and combative nature of these operations, aircraft are subjected to brutal conditions and required to perform extraordinary feats. These battlefield conditions abroad, and often replicated for training purposes on U.S. soil, can push pilots, aircraft, and ground personnel beyond the limits, resulting in catastrophic injuries or loss of life. Multiple conflicts on different continents frequently surpass the resources of the U.S. military and lead to the increased privatization of traditionally military functions. One of those has been aviation support. As a result, civilian pilots have increasingly found themselves flying in the same conditions as military pilots. The result is that military aircraft accidents may involve both military and civilian personnel. The results of aviation accidents are often catastrophic and leave only the surviving family members to pick up the pieces. If the family member who was severely injured or killed in a military aircraft accident was the sole income source for the family, the loss can be disastrous. The aviation attorney may be their only hope for recovery. In some cases, the accident may have been caused by a foreign combative. In those instances the chance of recovery may be slim. However, more often the cause of military aircraft accidents can be attributed to maintenance issues, pilot error, manufacturer defect, air traffic

2 control failure, or military support personnel error. In each one of those situations there is the possibility of recovering damages for your client. The aviation attorney will need to think creatively as the road to recovery rarely lies in plain sight. The following discussion will help you understand the implications of a military aircraft accident, identify potential claims, investigate those claims, and prosecute them to a meaningful conclusion. 1. Conduct a thorough intake interview To properly evaluate a military aircraft accident case background information is crucial. Some of the most important facts can be provided by the clients themselves, such as: Where did the crash occur? Was it on U.S. or foreign soil? Who employed the client? Was the client military or civilian? Was the employer working under a government or civilian contract? Where does the employer reside? The answers to these questions will help you identify which state or country s laws will apply, what remedies are available under those laws, and what statute of limitations or repose exist. More specific information about the case will usually require additional investigation outside the client s scope of knowledge. For instance, the relationship between your client and any potential defendants will have a significant impact on the recovery available. You will need to determine if any of the potential defendants were government contractors, if there was an employment contract, if the client has a claim against the company that hired him, if the client was covered by Defense Base Act i benefits, whether any defendants are foreign corporations, and what aspects of the client s work was military responsibility versus contractor responsibility. The answers to the questions above will also give you an idea of who will be investigating the accident. If the case involved all military personnel and aircraft then the NTSB will not investigate the case. The military will convene a Military Safety Mishap Board to

3 investigate the accident. If the personnel involved in the accident were civilians flying in support of military training or operations, then the NTSB will handle the investigation instead of the military. Should the accident involve both military and civilian personnel, the NTSB will investigate as well as the military. We will discuss later what reports are available from both agencies in support of your investigation into a claim. 2. Plaintiffs A number of factors will determine whether your client will be able to recover damages for his/her injuries. The most significant may be the client s employer and their relationship to the U.S. Government or military. Plaintiffs will typically fall into one of three categories: 1) Military Personnel 2) Civilians in the U.S. or Foreign Nationals 3) U.S. Government Employees. Military Personnel The first category typically involves U.S Military personnel who are injured in the line of duty. For example, your client is an active duty Army Pilot who is injured while serving in Iraq when his co-pilot ground taxis into a retaining wall on an airfield. Although the Army co-pilot may have been negligent your client will not be able to sue the military. Under the Feres Doctrine ii the client is precluded from suing the Army or the United States. His damages will be limited to those afforded under Army regulations. Nevertheless, your law office will not be much help. If the result was slightly different and the Army Pilot was killed in the accident, his surviving family members would be subject to the same limitation against suing the military. Government Contractor Government contractors, like military personnel, often have claims that are limited by workers compensation-like remedies. Suppose that your client was a military contractor riding in the back of the same aircraft who worked for private security contractor, OpCon, Inc. OpCon

4 was contracted by the U.S. Department of Defense (DOD) to provide security for VIPs while traveling in Iraq. Companies contracting with the U.S. Government are required to secure worker s compensation coverage under the Defense Base Act (DBA) iii. As long as the employer complied with this requirement, the client s cause of action against OpCon will be barred. The Defense Base Act provides workers' compensation protection to civilian employees working outside the United States on U.S. military bases or under a contract with the U.S. government for public works or for national defense. Once again your client will be limited to those benefits received pursuant to the DBA. However, you should continue your analysis into other potential causes of the accident to determine if there is another entity that may have been responsible who is not covered by one of the aforementioned exemptions. U.S. Civilians or Foreign Nationals An example within the next category of Plaintiff is the civilian who is injured by a military aircraft accident on U.S. soil. A real-world example of this type of case occurred in 2008 when a Marine Corp F/A 18D Hornet fighter jet crashed into a civilian home killing a man s wife, two young daughters, and mother in law iv. The surviving husband in this case had a claim against the U.S. under the Federal Tort Claims Act (FTCA), 28 U.S. Code 1336 (b), , et.seq. The FTCA is a limited waiver of sovereign immunity by the United States that allows it to be sued as if it were a private citizen for the negligent acts or omissions of its employees. In order to sue the United States under the FTCA, a private citizen must first file an administrative claim with the appropriate government agency within two years of the injury. The agency then has six months to decide if it will pay the claim. The Government will notify the claimant in writing of its decision regarding their claim. If the government denies the claim the client will need to file a lawsuit in federal court that will be tried before a judge. The law of the state where

5 the negligent act or omission occurred will apply to the case. It is important to remember that a plaintiff will generally not be able to recover more damages than those alleged in the claim v. Therefore, it is important for plaintiffs to demand a sufficient amount in its initial claim under the FTCA to compensate for all allowable damages. Punitive damages are prohibited under Section 2674 of Title 28 for lawsuits brought under the FTCA as is prejudgment interest. Attorney s fees in a FTCA lawsuit are also limited to 25%. It is important to follow the FTCA rules accurately or your client will lose their claim. The United States Military works with contractors on U.S. soil as well as abroad. In many cases contractors fly civilian aircraft in support of military training or actually ride in military aircraft in supporting roles. When those contractors are involved in an accident that is allegedly due to the negligence of the U.S. Military on U.S. soil, they will have a claim under the Federal Tort Claim Act as well. It is important to remember that the FTCA only applies on U.S. soil. The Military Claims Act (10 U.S.C ) (MCA) applies to claims against the U.S. military arising on foreign soil. The MCA authorizes payment to American citizens by the military for claims arising in a foreign country for property damage, personal injury, or death caused by military personnel or civilian employees of the Air Force acting in the scope of their employment or otherwise incident to the Air Force s noncombat activities. Each branch of the military has a department that deals with claims under the MCA in a similar manner as administrative claims under the FTCA. Claimants are required to fill out a Standard Form 95 and submit it to the applicable office for the military branch responsible for the damages within two years from the date of the incident. The Military will then have 6 months to process the claim. Unfortunately, the Military Claims Act only allows for an administrative determination of claims. There is no judicial

6 remedy under the Military Claims Act if a claim is denied. The victim may appeal the determination but the appeal goes to the same office that made the initial determination. U.S. Government Employees U.S. Government employees who are injured in a military aviation accident while in the performance of their duties will be covered by the Federal Employees Compensation Act (FECA). FECA provides workers compensation benefits including wage-loss for total or partial disability, medical benefits, vocational rehabilitation, monetary benefits for permanent loss of use of a schedule member, and survivor benefits for eligible dependents should the employee s injury end in death. Federal employees who are entitled to FECA benefits are precluded from suing the United States government under 5 U.S.C. 8116(c). 3. Defendants Rarely in aviation accident cases is there just one defendant to pursue. This is a byproduct of the complex nature of aviation itself. Aircraft are made up of thousands of components and equipment which are manufactured by different companies. The companies or government organizations that maintain and operate those aircraft consist of multiple entities. Then there are the entities that support aviation like the air traffic controllers, refuelers, weather personnel, flight services, etc. In each layer of the aviation operation including the manufacture of the aircraft, certification of its airworthiness, maintenance, operation, and support, exists a potential defendant when that aircraft ultimately crashes. In large part that is because aviation accidents can rarely be attributed to just one factor. Military aviation accidents are no different. When evaluating a potential military aviation accident case it is important to evaluate all potentially responsible parties. Take for example a private aircraft that is built by a manufacturer, purchased and owned by a business, operated by another business, maintained by a different

7 business, contracted by the U.S. military, flown by two pilots with different employers, and crashes while under the control of military air traffic control personnel while supporting a military training exercise on U.S. soil. A case like this is fertile ground for potential defendants and unique defense theories. Suppose the cause of the crash was determined to be partly due to maintenance, contributed to by pilot error, and when the pilot called the tower to request weather information and landing instructions, the military ATC personnel gave him bad information, contributing to the crash and death of the two pilots. The spouse of one of the pilots retains your firm to represent her and her three children. What causes of action do you bring? Against which defendants? What are the issues? If this sounds like a bar exam question that s because a lot of military aviation accident cases present themselves as such. However, with some careful consideration and investigation, the aviation attorney can find more than one way to recover for their client s damages. 4. Defenses In addition to the customary affirmative defenses common to all aviation accident litigation, there are a number of special doctrines which are frequently invoked in military cases: The Feres Doctrine In Feres v. United States, 340 U.S. 135 (1950) the Supreme Court stated that the U.S. government could not be held liable under the FTCA for injuries to armed forces members arising from activities incident to military service. Further solidifying the Feres decision, the court in United States v. Brown, 348 U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954), reasoned that the "the peculiar and special relationship of the soldier to his superiors" might be affected if suits

8 were allowed under the Tort Claims Act "for negligent orders given or negligent acts committed in the course of military duty." Government Contractor Defense In Boyle v. United Technologies, 487 U.S. 500 (1988) the Supreme Court outlined the circumstances where a private contractor is immune from tort liability for work performed pursuant to a government contract. The Court said liability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States. Combatant Activities Exception to the Federal Tort Claims Act 28 U.S.C. 2680(j) provides an exception to the FTCA for any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war. There is currently a split in the legal application of this exception. The holding in Koohi v. United States, 976 F.2d 1328 (9 th Cir. 1992) expanded the reasoning of Boyle to preempt state tort law and apply the combatant activities exception to private military contractors. The court in Koohi held that the combatant activities exception only applied to those against whom force is directed, allowing private military contractors to be sued in some circumstances. However, in Saleh v. Titan Corporation, 580 F.3d 1 (D.C. Cir. 2009) the D.C. Circuit Court of Appeals ruled that the combatant activities exception did apply to private military contractors who supplied services to the military, thereby granting them immunity from tort liability. The court said that during wartime, where a private service contractor is integrated into combatant activities over

9 which the military retains command authority, a tort claim arising out of the contractor s engagement in such activities shall be preempted Saleh, 580 F.3d at 9. The mere fact that an aircraft accident occurs in a conflict zone does not invoke the combatant activities defense. Aviation attorneys faced with this defense should carefully analyze the facts of the case to see if the circumstances fit within the narrow exception. Few cases have extended combatant activities exception in a Federal Tort Claims Act to civilian contractors. Foreign Country Exception to the Federal Tort Claims Act, The exception to the FTCA under 28 U.S.C. 2680(k) states that a civilian injured or killed abroad by the negligence of a branch of the military, as previously mentioned in this paper, comes under the Military Claims Act. An administrative claim is submitted and reviewed. A final decision is made by the Secretary of the appropriate branch. The decision of the Secretary is final and, unlike the FTCA, there is no right to a judicial remedy. Discretionary Function Exception to the Federal Tort Claims Act One of the most important exceptions to the FTCA is the discretionary function exception. The exception provides that the United States is not liable for any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused vi. In the most recent discussion of the exception, United States v. Gaubert, 499 U.S. 315 (1991), the Supreme Court set forth standards for when the exception applies. An allegedly negligent act or omission falls within the discretionary function exception (and thus bars jurisdiction over the case) if: (1) it did not violate a pertinent self-imposed statute, regulation, or policy that prescribed a specific course of action (the function was

10 discretionary ); and (2) it was susceptible to policy analysis involving social, economic, or political policy considerations. Id. at , 325. To determine if government conduct falls within the discretionary function exception, the court must apply the two-part test set forth by the U.S. Supreme Court in Berkovitz v. United States 486 U.S. 531 (1988). The first part of the test requires the court to determine if the conduct was discretionary, meaning it was a matter of judgment or choice for the acting Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive Berkovitz, 486 U.S. at 536. If the first element of Berkovitz is satisfied, the court will then consider the second element: whether the decision in question is one requiring the exercise of judgment based on considerations of public policy Id. at The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis. United States v. Gaubert, 499 U.S. 315, 325 (1991). If both the first and second elements of the Berkovitz test are met the discretionary function exception to the waiver of sovereign immunity applies. If one of the elements is not met then Plaintiffs may pursue the government for tort liability. Political Question Doctrine The leading case discussing this exception is Baker v. Carr, 369 U.S. 186 (1962). In that case the court said that unless one of the following factors is inextricable from the case at bar, there should be no dismissal for non-justiciability on the grounds of a political question's presence : a textually demonstrable Constitutional commitment of the case to a coordinate political department;

11 a lack of judicially discoverable and manageable standards for resolving it; the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; an unusual need for unquestioning adherence to a political decision already made; the potentiality of embarrassment from multifarious pronouncements from various departments on one question. The courts will not intrude on the decision making responsibilities of the two other branches of government. When military contractors are involved the courts will look to the degree of control the contractor had over its own activities. A military contractor who is under the direct order of a military officer, with no discretion as to how it follows that order, will probably fall within this exception. However, most military contractors are simply given a task, job description, area of responsibility, or mission with the ability to determine how they will accomplish the task. When that is the case, the contractor will not be able to invoke the political question doctrine. The military, on the other hand, will have more latitude to use this exception unless the plaintiff can show that the military acted contrary to some law, statute, or regulation that it was required to follow. Westfall Act Immunity This is the name for the FTCA exception under 28 U.S.C. 2679(b)(1). Employees of the Federal Government and the United States Government have no personal liability for their conduct in the course of their official duties.

12 6. Resources and Obstacles NTSB Docket: The NTSB is charged, among other things, with responsibility for investigating civilian aircraft accidents. It generally does not get involved in military aviation accidents. When it does, the entire report and docket must be obtained and carefully reviewed. These are publicly available on the NTSB s website, once the investigation is concluded. Military Investigations: Each branch of the military has its own Safety Mishap Board which will investigate and issue a confidential Safety Mishap Report. In addition, the service will conduct a Collateral Board Investigation which will issue a JAG report. Although helpful, this report often omits much of the forensic investigation and technical analysis found in the Safety Board Report. FOIA Requests: Case specific requests for information should be directed to the appropriate military or government agency. Collateral information may be available through these requests that may not have been supplied or reviewed by the investigating authority in an accident investigation. It is important to remember that the NTSB and the Military accident investigations are conducted primarily to increase safety. The investigators are not looking through the lens of an aviation attorney who is looking for the parties responsible. Important details and information are often overlooked or not considered relevant in those investigations that may be important to the military aviation accident case. Internet: There is a wealth of information on the internet that is helpful in prosecuting military aviation accident cases. Information about military aircraft including maintenance manuals are online. Another source of information to determine private companies who have military contracts is USAspending.gov. In addition, most military regulations are available through a simple Google search. By carefully reviewing those regulations the aviation attorney

13 can get a better understanding for military operations, responsibilities, standard operating procedures, maintenance practices, etc. It is important to have a thorough understanding of how military aviation operations work before you start conducting depositions of military witnesses. The military will rely heavily on the discretionary function exception to the FTCA since it gives great deference to military leaders in conducting military training and operations. It is important to understand the regulations that the military is required to follow to counteract their use of the discretionary function. Government and Military Discovery Requests: The military is typically helpful in scheduling aircraft and wreckage inspections and complying with discovery requests. Since a military aviation accident will involve multiple military witnesses, who may be transferred every few years to different bases and through overseas deployments, you can expect a significant amount of travel in deposing these witnesses. However, the attorneys for the military are typically very flexible in scheduling these depositions and may be willing to do video depositions when necessary to help save time. Obstacles: While the military and government may be forthcoming with a lot of helpful information, they will also invoke a number of precautionary measures to prevent plaintiffs from viewing any classified information and deposing certain witnesses. Active duty, retired Guard and Reserve military witnesses may only be deposed if counsel complies with the prerequisites US ex rel Touhy v Regan 240 US 642 (1951). Counsel should reach out to the appropriate JAG or government office and explain the importance of the witness testimony. Each government agency has Touhy regulations they follow. Those regulations describe the factors which the agency must consider when reviewing a Touhy request. The factors that are typically considered are the ability to obtain the information from another source; the appropriateness of the

14 testimony under federal law; the effect on the agency s ability to conduct official business unimpeded; the effect on the agency s ability to maintain impartiality in conducting business; the effect on the agency s ability to avoid spending employees time for private purposes; the effect on the agency s ability to ensure that privileged matters remain confidential; and the effect on the agency s ability to avoid an undue burden on it. A denial of a Touhy request is reviewable by the court. In most cases the testimony will be limited to factual matters only and will be limited in scope. Professional cooperation is the goal but it is important to identify necessary government or military witnesses early and start the Touhy request as soon as possible. This will give you time to litigate any contested matters regarding your request without unnecessary delay in the case. 7. Conclusion Military aviation accidents are dynamic cases which present unique challenges. Although complex, they are not something to be avoided. The most important step is the investigation into all of the potential defendants in the case. Identifying multiple responsible parties will increase the likelihood of recovery. Men and women in the Armed Forces deserve aggressive advocacy when injured in aircraft mishaps. When it results in fatalities, their families are entitled to no less. Bob Spohrer Keith Maynard

15 i The Defense Base Act is the federal equivalent of workers compensation coverage for those who work abroad under contracts between the U.S. government and private enterprise. For more on the DBA, visit ii Feres v. United States, 340 U.S. 135 (1950)- The Federal Tort Claims Act (FTCA) does not cover injuries to Armed Services personnel in the course of military service. iii 42 U.S.C iv Don Yoon, et al. v. United States Case No. 3:10-CV-1578 JM United States District Court for the Southern District of California The Hon. Jeffery Miller, presiding. v 28 U.S.C. 2675(b) vi 28 U.S.C. 2680(a)

16 DOCTRINAL DEFENSE CASE ABSTRACTS Feres Doctrine Feres v. United States, 340 U.S. 135 (1950). Estate of active duty serviceman sued the Army under the Federal Tort Claims Act ("FTCA") after he was killed in a barracks fire. Held: The FTCA did not waive sovereign immunity for injuries to active duty service men arising out of or in the course of activity incident to military service, and therefore, the claim was barred. Durant v. Neneman, 884 F. 2d 1350 (10th Cir. 1989). A serviceman was struck and killed by the vehicle of another serviceman while the second serviceman was driving to his duty station on a military base. The decedent's estate sued the driver. Held: When military members are engaged in non-military acts, they are acting as civilians and should be subject to civil liability. The act of driving to a duty station was held to be non-military in character, and thus, the driver/servicemember was not entitled to Feres immunity. Uptegrove v. United States, 600 F. 2d 1248 (9th Cir. 1979). Serviceman was killed when the military transport plane in which he was riding as Space-A passenger crashed into a mountain. His estate sued air traffic controllers under the FTCA. Held: Estate's FTCA suit was barred by the Feres doctrine because serviceman's death arose out of his transportation aboard a military aircraft, an activity incident to military service. The court also opined that the status of the decedent as military or civilian, rather than that of the tortfeasor, controlled the Feres inquiry. Chapman v. Westinghouse Elec. Corp., 911 F. 2d 267 (9th Cir. 1990). A serviceman was injured when a deck collapsed at a government owned nuclear reactor facility while he was on duty. The plaintiff sued the corporation that operated the facility, and the corporation moved for summary judgment, arguing that the suit was precluded by the Feres Doctrine, that the military contractor defense provided it with immunity, and that the suit was pre-empted by the Veteran's Benefits Act. The trial court granted summary judgment for the defendant, but the Ninth circuit reversed. Held: The corporation was not protected from suit under the Feres doctrine because it was not the government or a government employee. The GCD was not available because there was no evidence that the government provided or approved precise specifications as to the design or manufacturer of the deck that collapsed. Finally, the suit was not pre-empted by the Veteran's Benefits Act even though there was a contract provision that the government would reimburse the corporation for all judgments incurred in connection with the contract, because even if indemnification would frustrate the Veteran's Benefit Act's purpose, preemption of the plaintiff s claim would operate against the corporation's indemnity claim against the government and not against the serviceman's claim against the corporation. Page 1 of 8

17 Stencel Aero Engineering Corp. v. United States, 421 U.S.666 (1977). National Guard officer was injured by a malfunction of the ejection system in his fighter jet. He sued the manufacturer of the ejection system and the manufacturer filed a cross claim against the United States for indemnity. Held: The same rationale underlying Feres applies to bar a government contractor's claim for indemnity from the United States where a servicemember is injured. Overton v. New York State Div. Of Military & Naval Affairs. 379 F. 3d 83 (2d Cir., 2004). An individual employed by the National Guard in a military capacity and by the Air Force in a civilian capacity sued the State of New York and the Air Force for racial harassment and retaliation. Held: The Feres doctrine barred the plaintiff s suit, including the claim arising from his civilian employment, because the suit would undermine his relationship with his superiors in his military job. United States v. Johnson, 481 U.S. 681 (1987). The widow of a coast guard helicopter pilot sued the United States under the FTCA, alleging negligence on the part of civilian air traffic controllers, after the helicopter crashed and killed the pilot. Held: The Feres doctrine barred the FTCA claim since the servicemember was killed in an activity incident to military service and the defendant was the government. The tortfeasor s status as a military or civilian employee of the government does not control the Feres inquiry. United States v. Shearer, 473 U.S. 52 (1985). Mother of Army private sued government under FTCA, alleging negligent supervision, after her son was kidnapped and murdered by another serviceman while off-duty and away from the military base. Held: The Feres doctrine barred the claim which challenged a "straightforward personnel decision." Such a claim involves examining military command decisions. Foster v. Day & Zimmermann, Inc., 502 F. 2d 867 (8th Cir. 1974). Plaintiff, an Army ROTC trainee, was injured when a grenade exploded in his hand during a training exercise. Plaintiff sued the grenade manufacturer and the fuse manufacturer. This case was cited in Judge Antoon's Order in McMahon for the following proposition: "The doctrine of sovereign immunity may not be extended to cover the fault of a private corporation, no matter how intimate its connection with the government." Government Contractor Defense Boyle v. United Tech. Corp., 487 U.S. 500 (1988). Estate of helicopter pilot sued helicopter manufacturer, alleging defective design of an emergency escape-hatch system, after the helicopter crashed into water and the pilot drowned. Held: Manufacturer could not be liable because it satisfied the following elements of the GCD: 1) the government approved reasonably precise procedures; 2) the contractor conformed to the procedures; 3) the contractor warned the government of damages known to the contractor but not the government. Page 2 of 8

18 Travino v. General Dynamics Corp., 865 F. 2d 1474 (5th Cir. 1989). Survivors of navy divers who died from vacuum induced bends while in submarine s hanger diving system brought action against military contractor that designed the system. Held: GCD did not shield contractor from liability where the government merely rubber stamped specifications and left critical design decisions to the private contractor. Brinson v. Raytheon Co., 571 F.3d 1348 (11th Cir. 2009). Widow filed suit against the U.S. for the wrongful death of her U.S. Air Force pilot husband who was killed when his single-propeller aircraft experienced a failure in the trim aid device (TAD) system during takeoff, sending the aircraft into an un-commanded left roll, causing the aircraft to crash. Held: The USAF approved reasonably precise specifications of the rudder trim system, including the TAD in particular, and therefore Raytheon was entitled to use the Government Contractor Defense. Evidence of exhaustive communication between a contractor and the military is a persuasive indication that the military's approval, if given, was meaningful. Hudgens v. Bell Helicopters Textron, 328 F. 3d 1329 (11th Cir., 2003). Army helicopter pilots injured in crash caused by fin spar cracks brought claims against maintenance contractor. Held: GCD applied to preclude liability on the part of a helicopter maintenance contractor because the Army provided reasonably precise maintenance specifications and the Army was aware of the danger of not requiring more extensive tests for fin spar cracks. Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242 (5th Cir. 1990). After two servicemen were killed and another was seriously injured when a defective mortar shell exploded, suit was brought by plaintiffs, survivor and decedents' representatives, for negligence, strict liability, and implied warranty against defendants, projectile body manufacturer and shell manufacturer. Held: The government contractor defense only applies in cases of defective design, not in cases of defective manufacture. If a defect is the result of shoddy contractor workmanship, no federal interest justifies an immunity from liability. Harduvel v. General Dynamics Corp., 878 F. 2d 1311 (11th Cir. 1989). Estate of service member brought products liability action against manufacturer of F-16 aircraft. Held: GCD shielded manufacturer from liability. Besides analyzing the GCD, the court noted that service members, unlike civilian tort victims, get military death benefits. Political Question Doctrine McMahon v. Presidential Airways. Inc., Case No. 6:05cvl002, Dkt. No. 117 (M.D. Fla. Sept. 27, 2006). Estates of active duty servicemen sued defense contractor after a transport flight being operated by the contractor impacted mountainous terrain in Afghanistan, killing all souls aboard. The contractor filed a motion to dismiss, arguing it was immune from suit under the political question doctrine and the combatant activities exception to the FTCA. The contractor also argued it was immune from liability under the Feres doctrine. Held: The court denied the motion to dismiss, holding that the political question doctrine did not bar the claim since the contractor was responsible for ensuring flight safety Page 3 of 8

19 and compliance with civilian aviation regulations. The court also concluded that the combatant activities exception to the FTCA does not apply to private defendants. Finally, the court concluded that the Feres doctrine is inapplicable to private defendants and held that there was no basis for expanding the Feres doctrine to allow private parties to share sovereign immunity. Baker v. Carr, U.S. 186 (1962). The Supreme Court established a six prong test for determining whether a case involves a political question. One of the following factors must be prominent on the surface of any case held to involve a political question : 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 the controversy; 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 the government; 5) An unusual need for unquestioning adherence to a political decision already made; and 6) The potentiality of embarrassment from multifarious pronouncements by various departments on one question. Lessin v. Kellogg, Brown & Root. Inc., 2006 U.S. Dist. LEXIS (S.D. Tex. June 12, 2006). The plaintiff, an active-duty servicemember, suffered a traumatic brain injury when a convoy truck operated by a military contractor malfunctioned and hit plaintiff in the head with the arm of its loading ramp. The contractor moved to dismiss on political question grounds and the combatant activities exception to the FTCA. Held: The court denied the motion to dismiss and opined that application of the political question doctrine would expand the doctrine beyond its current boundaries, particularly before discovery is complete. The court distinguished Koohi and Bentzlin and noted that besides those two cases, no case has ever extended the combatant activities exception to a private party. Carmichael v. Kellogg, Brown & Root. Inc., 2006 U.S. Dist. LEXIS (N.D. Ga. Sept. 19, 2006). Plaintiff, an active-duty serviceman, brought negligence claims against a military contractor after he was severely injured when the truck in which he was riding overturned. The truck was driven by a civilian employee of the contractor. The contractor moved to dismiss on political question grounds and the combatant activities exception to the FTCA. Held: In denying the motion to dismiss, the court expressly disagreed with the conclusion in Whitaker, followed the holding in Lessin, and held that no political question had been presented. The court also refused to extend the combatant activities exception beyond the Koohi and Bentzlin cases, following reasoning from Lessin. Whitaker v. Kellogg, Brown & Root, Inc., 2006 WL (M.D. Ga. July 6, 2006). Parents of a servicemen sued a contractor for negligent hiring, training, and supervision after their son was killed in Iraq when a convoy driver crashed his truck. Held: The case presented Page 4 of 8

20 a nonjusticiable political question because the convoy plans, including placement of vehicles, speed, and security were made by military personnel. The court also noted that the convoy commander, not the contractor, was charged with inspecting convoy personnel and vehicles prior to departure. Smith v. Halliburton Co., 2006 WL (S.D. Tex., May 16, 2006). (Smith I) After a U.S. citizen and non-military member was killed in a suicide bomb attack on a mess hall in Iraq, his estate sued a defense contractor for negligent security. Defendant moved to dismiss arguing that the political question doctrine and the combatant activities exception to the FTCA afforded it immunity from suit. Held: The court denied the motion to dismiss pending further discovery on the political question issue and rejected the contractor's combatant activities argument. Political Question Reasoning: Resolution of the political question issue was premature because the court could not determine whether mess hall security had been contractually delegated to the contractor. The court opined that if security had been delegated, no political question would be presented. Combatant Activities Reasoning: The court distinguished Koohi by pointing out that Koohi involved action by the United States against a perceived enemy, whereas this case involved action by an enemy against the U.S. military. Thus, the Ninth Circuit's reluctance, in Koohi, to extend a duty of care owing to a perceived enemy did not apply. The court also noted that application of the combatant activities exception has been limited to defective product claims. Smith v. Halliburton Co., 2006 U.S. Dist. LEXIS (S.D. Tex. Aug. 30, 2006). (Smith II) This is the second opinion from this case. The court dismissed plaintiff's claims as nonjusticiable, finding specifically that the contract between the government and Halliburton left security of the mess hall to the Army. Since the conduct at issue was that of the military, the case was nonjusticiable. Ibrahim v. Titan Corp., 391 F. Supp. 2d 10 (D.D.C. 2005). Iraqi national detainees and spouses of deceased detainees sued two private government contractors who provided interrogators and interpreters to the U.S. Military in Iraq, alleging the contractors tortured the Iraqi nationals. Held: Case did not present political question, even though the claims had some relationship to foreign relations, because plaintiffs sought only monetary damages. GCD Reasoning: "Defendants want me to expand Boyle's preemption analysis beyond Koohi's negligence/product liability context to automatically pre-empt any claims, including these intentional tort claims, against contractors performing work they consider to be combatant activities. This would be the first time that Boyle has ever been applied in this manner. Boyle explicitly declined to address the question of extending federal immunity to non-government employees." Bentzlin v. Hughes Aircraft Co., 832 F. Supp 1486 (C.D. Cal., 1993). Families of six marines brought state tort suit against missile manufacturer after marines' vehicle was struck by missile fired from friendly aircraft. United States intervened for missile manufacturer. Held: Page 5 of 8

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