Because the military made decisions regarding the faulty electrical systems in the housing for soldiers in Iraq, a federal judge ruled that the court cannot delve into the claims of negligence lodged against the contractor, Kellogg, Brown & Root, that maintained the systems.

“In this court’s estimation, the military presence looms large over nearly every aspect of this case,” U.S. District Judge Nora Barry Fischer of the Western District of Pennsylvania said, addressing the application of the non-justiciable political question doctrine, which bars the judiciary from deciding issues that are constitutionally assigned to other branches of government. Although she found that basis sufficient to dismiss the case, she also discussed the combatant activities exception of the Federal Tort Claims Act, which extends tort liability immunity to certain government contractors working in combat zones.

“There is still no binding precedent from the Supreme Court of the United States or the U.S. Court of Appeals for the Third Circuit analyzing the political question doctrine or the combatant activities exception to the FTCA as applied to a government contractor providing logistical support services to the military in an active war zone,” she said in her opinion in Harris v. Kellogg, Brown & Root — the latter is an area of jurisprudence that has been developing since the wars in Afghanistan and Iraq began.

Following the 2008 electrocution of Army Staff Sergeant Ryan Maseth while he showered in the Radwaniyah Palace Complex in Iraq, his family filed a suit against KBR alleging negligence.

Fischer was considering the case on remand from the Third Circuit, which did not address the merits of the case. While Fischer had denied KBR’s first motion to dismiss, which raised the same arguments — that the political question doctrine and the combatant activities exception applied — she held the opposite after reviewing the extensive discovery that was produced on remand.

Also, Fischer said, “the legal landscape has shifted considerably since this court last analyzed KBR’s defenses in this case.” At the time of her earlier opinion, she said, “no court of appeals had dismissed a tort action against a government contractor providing wartime support to the military under the political question doctrine.”

However, she noted, “That statement no longer rings true as the U.S. Courts of Appeals in the Eleventh and Fourth Circuits have held that cases brought against KBR for alleged negligence toward soldiers in the Iraq war theater were properly dismissed under the political question doctrine.”

Given her scrutiny of the factual record following discovery, Fischer said, “the court concludes that further consideration of this case would violate the doctrine of separation of powers between co-equal branches of our federal government. From this court’s perspective, it would be impossible to evaluate this case without questioning sensitive military political-based decisions over which no judicially manageable standards can be crafted, and requiring military personnel to appear at trial and defend these wartime policies would offend the constitutional principles we have discussed.

“When evaluating claims against a private military contractor in a war zone, the key question 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,’” she said, citing a 2008 opinion from the Northern District of California in Getz v. Boeing.

She noted that in recent cases arising from the war in Iraq, courts have held that the doctrine precluded tort suits against contractors regarding the operation of a military convoy, power generation services for the maintenance of war tanks, and security services.

William S. Stickman IV, of Del Sole Cavanaugh Stroyd in Pittsburgh, represented Maseth’s family and said an appeal is being planned and they expect that the Third Circuit will want to address the issues.

“We submitted nothing more than a common law negligence claim,” he said, maintaining that Fischer’s opinion lends too much reach to the political question doctrine and the combatant activities exception. The long-standing rule of thumb in order to apply the exception, he said, is that the act has to be directly related to combat. If the standard set in this opinion were permitted to stand, Stickman said, it could lead to blanket immunity in a combat zone, because at no point were the KBR employees who worked on the electrical system under fire.

“We do not believe that this case can be further adjudicated without questioning the military’s wartime decisions which directly affected the safety of the electrical facilities in the building,” Fischer said. “It is not the role of the judiciary to pass judgment on the military’s decisions which affect the safety of a military base located in an active war zone and we conclude that an evaluation of KBR’s defenses cannot be divorced from these military decisions.”

A representative for KBR could not immediately be reached for comment. Lawyers from McKenna Long & Aldridge in Washington, D.C., and Dingess, Foster, Luciana, Davidson & Chleboski in Pittsburgh represented KBR.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.

(Copies of the 87-page opinion in Harris v. Kellogg, Brown & Root, PICS No. 12-1310, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •