Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
New York
PeNNsYlvaNia
CaliforNia
washiNgtoN, D.C.
New JerseY
DelawareNew York
PeNNsYlvaNia
CaliforNia
washiNgtoN, D.C.
New JerseY
DelawareNew York
PeNNsYlvaNia
CaliforNia
washiNgtoN, D.C.
New JerseY
Delaware
July
2012
(continued on page 2)
Political Question Doctrine Requires
Dismissal of Wrongful Death Suit Against
Government Contractor in Iraq
By Alison C. Finnegan and Peter Colonna-Romano
Earlier this month, in a lengthy and well reasoned opin-
ion, 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 as-
serted 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 Doc-
trine. 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”) negli-
gently 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 mo-
tion practice, and an appeal to the Third Circuit, KBR ar-
gued 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 briey analyze the potential applica-
tion of Harris to other types of cases.
Political Question Doctrine. Under the Political Question
Doctrine, “exclude[d] from judicial review [are] those con-
troversies which revolve around policy choices and value
determinations constitutionally committed for resolution
to the halls of Congress or the connes 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 nding of even one of these fac-
tors indicates the presence of a political question. Id. at 43-
v. German Found. Indus. Initiative, 456 F.3d 363, 377 (3d
Cir. 2006)). The Political Question Doctrine applies, how-
ever, only where one of these factors is “inextricable” to
The six factors are: (1) “a textually demonstrable consti-
tutional commitment of the issue to a coordinate political
department;” (2) “a lack of judicially discoverable and
manageable standards for resolving it;” (3) “the impossi-
bility of deciding without an initial policy determination of
a kind clearly for nonjudicial discretion;” (4) “the impossi-
bility of a court’s undertaking independent resolution with-
out expressing lack of the respect due coordinate branches
of government;” (5) “an unusual need for unquestioning
adherence to a political decision already made;” or (6)
“the potentiality of embarrassment from multifarious pro-
nouncements by various departments on one question.” Id.
at 43–44 (quoting Baker, 369 U.S. at 217). Because KBR
primarily relied on the rst, second, and fourth factors, the
court focused only on those issues.
Textually demonstrable commitment to coordinate
political branches. With respect to the rst factor, KBR
was required to demonstrate that the claims against it re-
quired the reexamination of a military decision and that
the military decision is insulated from judicial review. Id.
at 45. KBR argued these factors were present because, if
the case went to trial, it would be required to use military
witnesses and documents to prove that Staff Sgt. Maseth’s
death was a result of discretionary decisions made by the
military. Id. at 52.
The court agreed with KBR. The evidence demonstrated
that the military was aware both that buildings in the RPC
had substandard electrical systems and that these systems
created the specic risk of electrocutions in the showers.
AviAtion
alert
