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Court calls for the government’s view in suit against military contractor

Monday the Court called for the views of the Solicitor General in Carmichael v. Kellogg, Brown & Root Services, No. 09-683, a case arising from an auto accident in Iraq.  The petition raises an interesting question regarding application of the political question doctrine to tort suits against military contractors in a combat zone.


The plaintiff, Sergeant Keith Carmichael, was assigned to ride in a fuel truck in a convoy between bases outside of Baghdad.  The convoy was operated by a military contractor, which employed the drivers.  In addition to placing soldiers in the trucks, the military provided escort vehicles to protect the convoy and extensively regulated the details of the trip, including when the convoy would move, its route, how many vehicles would participate, their speed, and the distance between the trucks.  During the convoy, Carmichael’s driver lost control of the truck on an S-curve.  The vehicle went off the road and flipped over.  Carmichael was thrown from the vehicle and eventually pinned under it.  The accident left him in a persistent vegetative state.  The contractor’s subsequent inquiry found that the accident was caused by the driver’s carelessness and excessive speed.

Carmichael’s wife subsequently sued the driver and the contractor in Georgia state court, alleging negligent operation of the vehicle by the driver and negligent hiring, supervising, and training by his employer.  The defendants removed the case to federal court, where the district court dismissed it for lack of jurisdiction under the political question doctrine.

The Eleventh Circuit’s Decision

The Eleventh Circuit affirmed.  It explained that under the political question doctrine, courts lack jurisdiction over cases “which revolve around policy choices and value determinations constitutionally committed” to Congress or the Executive Branch, as well as those in which there is a “lack of judicially discoverable and manageable standards for resolving it.”  It found that both were true in this case.

First, the court of appeals held that the case would require “reexamination of many sensitive judgments and decisions entrusted to the military in a time of war,” ranging from the “decision to utilize civilian contractors in conduct the war in Iraq” to the details of the convoy’s planning and execution.  “The rollover in which Sergeant Carmichael was injured never would have taken place if these basic decisions had not been made.”

Second, the court held that there are no judicially manageable standards for applying traditional tort principles in this context.  A negligence claim requires the jury to decide whether the defendant complied with a standard of care, but – the court concluded – there are no manageable standards for determining a standard of care of military contractors in combat zone.  While judges and juries can rely on “common sense and everyday experience” to decide whether a driver acted reasonably in normal circumstances, they are ill-equipped, the court believed, to decide what constitutes reasonable care in the context of an armed conflict.

Petition and Opposition

Carmichael petitioned for cert., arguing that the Eleventh Circuit’s decision effectively immunizes all private military contractors from liability for injuring American soldiers in combat zones, regardless of how negligent their conduct was.  The petition asserts that no other court has ever dismissed a case against a private entity on political question grounds and that the question is of great importance given the military’s increasing reliance on private contractors.

The petition further insists that the court of appeals was wrong in concluding that a jury would be required to second-guess military judgments to resolve the suit.  Instead, petitioner asserts that the facts would show that the sole cause of the plaintiff’s injuries was the driver’s simple negligence in driving too quickly through the curve; nothing in the rules governing the convoy, petitioner argues, prohibited the driver from slowing down and paying more careful attention to the road.

In their brief in opposition, the defendants argue that the petition alleges no circuit split and that the Eleventh Circuit’s meticulous opinion was consistent with the Supreme Court’s political question precedents.  Only two circuits (the Fifth and, in this case, the Eleventh) have considered the political question doctrine’s application to suits against military contractors in a combat zone, respondents argue, and both found the suits barred.  Moreover, the Eleventh Circuit and district court found, after an exhaustive examination of the facts of this case, that the negligence claim unavoidably required second-guessing military judgments.  If the case were to go to trial, respondents argue, they would defend the suit by showing that the accident was not caused solely by the driver’s lack of diligence and care, but also by decisions – controlled by the military – about the route the convoy took, its speed, and the guidance given to the driver about the upcoming S-curve from the convoy’s military commander.


Monday’s call for the views of the Solicitor General is notable, given the lack of an asserted circuit split.  It likely reflects that at least several members of the Court are concerned about the broad ramifications of the ruling below, whose rationale (particularly on “judicially manageable standards”) would seemingly extend to a broad range of lawsuits against military contractors in Iraq and elsewhere.  Because the plaintiff did not sue the military, the Government has not participated in the case thus far.  The invitation brief will therefore provide the United States an opportunity to weigh in on the basic questions raised, including perhaps the extent to which the Government believes that tort suits against contractors affects the military’s ability to perform its mission in Iraq and elsewhere.

There is no due date for responses to invitation briefs, but it is likely that the Solicitor General will attempt to file a response in time for the Court to rule on the petition before it breaks for the summer recess.