Vivian S. Chu
Legislative Attorney
Kate M. Manuel
Legislative Attorney
Pending litigation and judicial decisions in recent tort suits filed by U.S. civilian and military personnel, other U.S. persons, and other parties against federal contractors have prompted congressional and public interest. Many of these suits allege that contractors were negligent or committed fraud or intentional torts (e.g., false imprisonment, infliction of emotional distress) in the course of providing services in support of combat operations in Iraq and Afghanistan.
There has been particular interest in cases that have been dismissed on jurisdictional grounds, or because a federal court does not have power over the parties or subject matter. Personal jurisdiction over the defendant appears to be a particular issue in cases where the injury occurred while the contractor and U.S. persons worked for the government abroad. For example, courts recently disagreed as to whether they could exercise specific jurisdiction over contractors who allegedly exposed members of the National Guard to toxic chemicals at the Qarmat Ali water treatment plant in Iraq. Similarly, courts recently held that they cannot, absent additional contacts between the contractor and the forum state, exercise general jurisdiction over a contractor in any state from which the government administers the contract.
The court’s subject matter jurisdiction can also be challenged or defeated. Some contractors have asserted that claims against them are nonjusticiable under the political question doctrine because resolution of these claims would require the court to decide issues that the Constitution has committed to another branch of government or that there are no judicially discoverable and manageable standards for resolving. To date, courts have reached differing conclusions as to whether the political question doctrine bars suits against federal contractors, although their decisions can, in part, be explained by differences in contract terms and performance.
Other contractors have asserted that state tort law claims against them are preempted under the Federal Tort Claims Act. The Supreme Court’s decision in Boyle v. United Technologies Corporation recognized that such claims may be preempted where, among other things, the government approved reasonably precise specifications and the equipment manufactured by the contractor conformed to those specifications. While Boyle only addressed contracts for goods, recent decisions by some lower courts have extended it to service contracts, although there appears to be some disagreement between the courts as to how the test established in Boyle should be applied. Additionally, while the Boyle Court specifically based its decision on the “discretionary function” exception to the FTCA, some lower courts have found that state tort law claims may also be preempted under the FTCA’s “combatant activities exception.” Currently, there appear to be significant disagreements among the courts as to whether the combatant activities exception applies narrowly, only in circumstances like those in the cases originally recognizing it, or whether a broader “battlefield preemption” exists in certain cases.
Contractors may also be able to claim derivative absolute immunity in certain circumstances if they are seen as performing discretionary functions, and the court finds that the contributions of immunity to “effective government” within the particular context outweigh the potential harm to individual citizens. However, contractors have been less successful in asserting derivative immunity under the Feres doctrine, which bars service members from bringing suit against the U.S. government for injuries that arise “out of or are in the course of activity incident to service.”
In some cases, the government may have agreed to indemnify the contractor, or pay any liability that it might incur for injuries to third parties during performance of the contract.
Date of Report: April 7, 2011
Number of Pages: 28
Order Number: R41755
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
Legislative Attorney
Kate M. Manuel
Legislative Attorney
Pending litigation and judicial decisions in recent tort suits filed by U.S. civilian and military personnel, other U.S. persons, and other parties against federal contractors have prompted congressional and public interest. Many of these suits allege that contractors were negligent or committed fraud or intentional torts (e.g., false imprisonment, infliction of emotional distress) in the course of providing services in support of combat operations in Iraq and Afghanistan.
There has been particular interest in cases that have been dismissed on jurisdictional grounds, or because a federal court does not have power over the parties or subject matter. Personal jurisdiction over the defendant appears to be a particular issue in cases where the injury occurred while the contractor and U.S. persons worked for the government abroad. For example, courts recently disagreed as to whether they could exercise specific jurisdiction over contractors who allegedly exposed members of the National Guard to toxic chemicals at the Qarmat Ali water treatment plant in Iraq. Similarly, courts recently held that they cannot, absent additional contacts between the contractor and the forum state, exercise general jurisdiction over a contractor in any state from which the government administers the contract.
The court’s subject matter jurisdiction can also be challenged or defeated. Some contractors have asserted that claims against them are nonjusticiable under the political question doctrine because resolution of these claims would require the court to decide issues that the Constitution has committed to another branch of government or that there are no judicially discoverable and manageable standards for resolving. To date, courts have reached differing conclusions as to whether the political question doctrine bars suits against federal contractors, although their decisions can, in part, be explained by differences in contract terms and performance.
Other contractors have asserted that state tort law claims against them are preempted under the Federal Tort Claims Act. The Supreme Court’s decision in Boyle v. United Technologies Corporation recognized that such claims may be preempted where, among other things, the government approved reasonably precise specifications and the equipment manufactured by the contractor conformed to those specifications. While Boyle only addressed contracts for goods, recent decisions by some lower courts have extended it to service contracts, although there appears to be some disagreement between the courts as to how the test established in Boyle should be applied. Additionally, while the Boyle Court specifically based its decision on the “discretionary function” exception to the FTCA, some lower courts have found that state tort law claims may also be preempted under the FTCA’s “combatant activities exception.” Currently, there appear to be significant disagreements among the courts as to whether the combatant activities exception applies narrowly, only in circumstances like those in the cases originally recognizing it, or whether a broader “battlefield preemption” exists in certain cases.
Contractors may also be able to claim derivative absolute immunity in certain circumstances if they are seen as performing discretionary functions, and the court finds that the contributions of immunity to “effective government” within the particular context outweigh the potential harm to individual citizens. However, contractors have been less successful in asserting derivative immunity under the Feres doctrine, which bars service members from bringing suit against the U.S. government for injuries that arise “out of or are in the course of activity incident to service.”
In some cases, the government may have agreed to indemnify the contractor, or pay any liability that it might incur for injuries to third parties during performance of the contract.
Date of Report: April 7, 2011
Number of Pages: 28
Order Number: R41755
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
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