Political Question Doctrine Requires Dismissal Of Wrongful Death Suit Against Government Contractor In Iraq

Earlier this month, in a lengthy and well reasoned opinion, a federal trial court relied on the Political Question Doctrine in dismissing a wrongful death action against a military contractor. In Harris v. Kellogg, Brown & Root Services, Inc., the court held that negligence claims asserted against a military contractor in connection with the performance of electrical services at a military base during the Iraq War were barred under the Political Question Doctrine. Harris v. Kellogg, Brown & Root Servs., Inc., No. 2:08-cv-00563, at 1 (W.D. Pa. July 13, 2012).

Staff Sgt. Maseth was electrocuted while showering at the Radwaniyah Palace Complex ("RPC"), headquarters for Special Operations Forces in Iraq. The plaintiffs claimed that Kellogg, Brown & Root Services, Inc. ("KBR") negligently failed to employ certain safety procedures regarding electrical maintenance services at RPC. Plaintiffs alleged that KBR's negligence caused an ungrounded water pump to fail, leading to Staff Sgt. Maseth's death. Id. at 2–3.

Following extensive fact and expert discovery, prior motion practice, and an appeal to the Third Circuit, KBR argued that the Political Question Doctrine barred the claims. KBR also argued that the claims were preempted by the Combatant Activities Exception to the Federal Tort Claims Act ("FTCA"). Id. at 2. In this Alert, we provide a brief overview of the Political Question Doctrine, discuss the Harris decision, and briefly analyze the potential application of Harris to other types of cases.

Political Question Doctrine. Under the Political Question Doctrine, "exclude[d] from judicial review [are] those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Id. at 43 (quoting Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986)). Courts analyze six factors to determine whether there is a non-justiciable political question, and the finding of even one of these factors indicates the presence of a political question. Id. at 43-44 (citing Baker v. Carr, 369 U.S. 186, 198 (1962); Gross v. German Found. Indus. Initiative, 456 F.3d 363, 377 (3d Cir. 2006)). The Political Question Doctrine applies, however, only where one of these factors is "inextricable" to the case. Id. at 44 (citing Gross, 456 F.3d at 378).

The six factors are: (1) "a textually demonstrable constitutional commitment of the issue to a...