When Just Following Orders Is Good Enough

July 27, 2010 • Commentary
This article appeared on The Huffington Post on July 27, 2010.

In my last post, while discussing a law journal article on how to prosecute a PMC should one commit an act of torture, I touched on the Nuremberg defense, i.e., I was just following orders. I said it would be the subject of another post but I did not expect to discuss it so soon.

But thanks to the magic of online searching I came across another current law journal article on just that subject. Really, honest, cross my heart and hope to die. Specifically it is an article in the Western New England Law Review ( 32 W. New Eng. L. Rev. 373) titled “I’m Just Following Orders: A Fair Standard of Immunity for Military Service Contractors,” by Thomas Gray

Gray’s take is different, though not necessarily opposite, the view I detailed in my last post. Gray asks whether private military service contractors should be afforded any level of immunity because of their contractual relationship with the United States military and the United States government. He concludes that contractors are entitled to some immunity. The critical question is just how much immunity should be granted, the situations in which such immunity would apply, and the basis for such immunity in relation to existing legal concepts and policy considerations. As the saying goes, the devil is in the details.

As everyone should know by now contractors are steadily replacing enlisted, uniformed soldiers in many aspects of the military’s various missions. Despite the decreased use of its own personnel, the military still has an active hand in dictating flight patterns, passenger lists, maintenance schedules, security protocols, and the job specifications for hosts of contractor jobs. This division of labor raises an important legal issue: a soldier cannot sue the United States for injuries he suffers incident to his service, but the soldier can sue a private contractor for such injuries. For example, during the Vietnam War, a soldier transported in a military plane flown by military pilots had no cause of action against the United States if his plane crashed. Today, however, a soldier in Iraq who suffers injury in the crash of a civilian military contractor plane has a cause of action against the airline.

According to Gray, while a plane crash might be a rare event it is an unfortunate fact of war that things often go wrong and many people are hurt. Even outside of direct combat, any endeavor as large and complicated as the civilian contractor operation in Iraq is bound to produce tragedy. In some of these cases, the genesis of the incident is not in the negligent execution of a task by a civilian contractor.

Perhaps not that rate, actually. I should note that, it was a Presidential Airways (former Blackwater subsidiary) plane that crashed on November 27, 2004 in Afghanistan. All aboard, three soldiers and three civilian crew members, were killed. A 60 Minutes investigation reported that the crash was caused by pilot error but that the company tried to avoid responsibility.

Anyway, Gray argues that military service contractors should be entitled to immunity in much the same way that contractors are afforded immunity in the products liability context. This Note proposes that a version of the Boyle v. United Technology Corp. test, logically modified to suit the services industry, would fairly determine the applicability of this immunity. This test would shield contractors from liability when (1) the injury in question resulted from an order, plan, or directive from the United States military, (2) the plan or order was executed without negligence by the contractor, and (3) the contractor had disclosed to the United States any concerns or potential risks.

In his view this test presents a workable solution that honors the rationales that have supported military immunity and military products‐​liability immunity for more than fifty years while at the same time fairly leaving liability to the contractors when their negligent execution of a contractual duty has caused an injury.

Not being a lawyer let me try to summarize some of his main points. Forgive me for going long but it is necessary to do justice to his argument.

Gray notes the doctrine of sovereign immunity far predates the founding of the United States. It is based on the notion that the King, as the “font of the law,” is not bound by the law; and that the King, as the “font of justice,” cannot be sued in his own courts. To me that sounds like an earlier version of Dick Cheney’s unitary executive theory. Who knew Dick was such an Anglophile!

In practical and modern terms, sovereign immunity shields the United States from civil suit and criminal prosecution. In the United States, the federal government was immune from tort actions for more than a century before Congress passed legislation that waived the immunity for certain torts and established jurisdiction in the federal courts over certain types of claims made against the government. This legislation came in the form of the Federal Tort Claims Act (FTCA), which authorized suit against the government for torts which would have been in violation of the local law had they been committed by an individual.

Four years after the passage of the FTCA, the United States Supreme Court decided Feres v. United States. In Feres, the Court held that the United States military was not liable for soldiers’ injuries suffered incident to service. The original Feres complaint alleged that the military’s negligence in housing Feres in barracks with a defective heating plant and failure to maintain adequate fire‐​prevention measures resulted in his death. In barring Feres’s claim, the Court gave broad immunity to the military for injuries arising in the course of a soldier’s duties, whether those duties were performed in peacetime or wartime and whether the duties were pedestrian or high risk.

The Supreme Court added a third factor four years later in United States v. Brown. There, the Court expressed concern about the dangers posed to military discipline by the litigation of claims brought by servicemen and servicewomen. In Brown, a discharged soldier alleged medical negligence at a Veterans’ Administration Hospital during his surgery to correct an injury incurred during military service. The Court read into the Feres decision a recognition of both the special nature of military discipline and the potential untoward results of litigating allegedly negligent command decisions or orders. The Court found that the Feres Court had read the FTCA to exclude claims that involved the “peculiar and special relationship of the soldier to his superior.” The Brown Court ultimately decided that Feres did not control in that case and thus provided little analysis of what eventually became the predominant Feres factor: military discipline.

Outside of the military realm, there is an extensive history of derivative sovereign immunity for those acting at the will of the government. In Yearsley v. W.A. Ross Construction Co., the Supreme Court held that an agent of the government was not amenable to suit when carrying out the will of Congress. In such cases, the Court held, the only way for the agent to be liable would be if he acted outside the bounds of his authority or if there was no legitimate power to give that authority.

The Supreme Court would take up the issue of military‐​contractor immunity in Boyle v. United Technologies Corp. where it recognized and established the test for military‐​contractor immunity for products liability. Boyle centered on the death of a United States Marine helicopter pilot and the subsequent suit the pilot’s father filed against the helicopter manufacturer. A primary focus of the Court’s decision was the tension between the wholly federal role of military contractors and the fundamental concepts of state tort law. Boyle held that federal law can supersede state tort law, even without statutory authorization, in cases that represent a “uniquely federal interest[].“Two uniquely federal interests were presented in Boyle: “obligations to and rights of the United States under its contracts” and “the civil liability of federal officials for actions taken in the course of their duty.” Despite the fact that the suit was nominally against the contractor, it was sufficiently related to a contract involving the United States to be considered within the first interest. As well, the policy ] goals of the second interest are maintained whether a federal official is involved directly or not.

Though the Court acknowledged that suits between private parties unrelated to the United States are left to state tort law, it distinguished Boyle, pointing out that because “the imposition of liability on Government contractors will directly affect the terms of Government contracts … the interests of the United States will be directly affected.”

A test ultimately emerged from Boyle that allows for immunity from suit for contractors in situations in which (1) the United States approved design specifications, (2) the materials produced by a civilian contractor met those specifications, and (3) the contractor warned the United States about any dangers in the use of the materials of which it was aware but the United States was not. The third element of the test, the Court stated, was necessary to create disincentives for contractors to withhold information from the military about potential dangers.

The various issues of contractor immunity discussed above converged in McMahon v. Presidential Airways, Inc., in which the Eleventh Circuit Court of Appeals heard a claim for derivative Feres immunity in a case involving a service contract. As noted above Presidential Airways had contracted with the United States to fly military officers and personnel to and from various locations in the Middle East. One of its trips unfortunately ended in a crash that proved fatal to three United States servicemen. The survivors brought suit against Presidential Airways on behalf of the deceased soldiers in Florida state court, alleging that it had caused the wrongful death of the soldiers.

Presidential Airways argued that it should be immune under the Feres doctrine, but the Eleventh Circuit disagreed. The court did not base its decision on the notion that Feres could not apply to suits against nongovernment entities. Instead, the Eleventh Circuit engaged the concept of derivative Feres immunity presented by Presidential Airways.

First the court analyzed Presidential Airways’s claim that, as a common law agent, it was entitled to the government’s sovereign immunity. The court never decided whether Presidential Airways was a common law agent, but it did disagree with Presidential Airways’s position that, if it was, it would be entitled to derivative sovereign immunity.

The court then considered the Feres doctrine and found that it was simultaneously too broad and too narrow to be applied in the claim against Presidential Airways. The doctrine was too broad, the court held, because it allowed immunity for any injury “incident to service,” which would protect contractors from things well outside the policy aims supported by Feres, the doctrine was held to be too narrow in that it only provided immunity from suits by soldiers, not by civilians. This paradoxical set of weaknesses of the Feres doctrine as applied to the McMahon facts would produce absurd results — such as having the claims on behalf of the soldiers completely barred regardless of merit — yet would allow for claims against Presidential Airways by any nonmilitary personnel on board the crashed flight. Because of these faults in the Feres argument, the court rejected its application.

The court did recognize the fact that the third Feres factor, a fear of interference and evaluation of sensitive military decisions, was applicable to the McMahon facts. Despite finding the other two factors inapplicable and ultimately rejecting Presidential Airways’s derivative Feres claims, the court found that the value of the all‐​important third factor could merit some level of immunity for Presidential Airways. The court went on to suggest that this standard for immunity would be somewhere between “incident to service” and the political‐​question doctrine. It would need to be less than “incident to service” for the same reason that the “incident to service” standard of Feres made that doctrine too broad, namely that it would protect contractors from liability in virtually all of their actions, regardless of negligence. The questions then posed by the court were whether the political‐​question doctrine was too narrow and whether there were instances in which Presidential Airways could merit immunity while at the same time not requiring the court to directly consider a political question. Ultimately, the court did not answer these questions and instead left them merely as suggestions.

Gray argues that the Boyle test should be applied to service contractors. Civilian companies who contract to provide services to the United States military should receive immunity from civil liability in cases where they have acted in compliance with specific directions of the United States military. This immunity is necessary for two reasons. First, it is necessary to protect the discretion of the United States in its military contracts, discretion that would be threatened by contract liability for actions performed by a contractor under the direction of the United States. Second, a service‐​contractor immunity is necessary to maintain the internal discipline of the United States military, which could be threatened if regular tort analysis was applied to the orders and directions given to military contractors.

The test used in Boyle provides the most effective and fair standard to use for military contractors. It shields contractors from liability in cases where the principle cause of the injury is not any individualized negligence but instead springs from some larger decision made by the United States military. A modification of this three‐​part test represents the best route to an immunity standard for service contractors.

The first prong of the test is that the contractor had a reasonably specific outline of its contractual duties. This flows from the first prong of Boyle’s test, which requires that “the United States approve[] reasonably precise specifications.” This factor guarantees that the military has actually been involved in the decision‐​making process by giving the contractor a reasonably precise set of requirements and parameters for its contractual duties. Within each individual type of service, the nature of these specifications would be different. For contracted airlines, it could be military control over flight plans, passenger lists, and other things that lead to very specific parameters within which to conduct each flight. For a maintenance contractor, it could be the protocols the military had established for the frequency and thoroughness of inspection and repair. For a private security contractor, it could be protocols covering the use of force or a host of other details. While the requirement might not be satisfied in exactly the same way for any two contractors, this standard is flexible enough to only provide immunity for contractors whose duties were discretionally decided by the United States military.

The key in any type of service contract would be that the guidelines provided by the government “constituted a comprehensive regime that [the contractor] was not expected to supplement through any procedures other than those specifically set forth.” Each attempt to establish this immunity would thus require contractors to show that the course of their actions was determined by a “comprehensive regime.” Contractors who were not given specific parameters for their actions and who were given broader discretion in determining how their duties would be carried out would not be protected in this immunity standard. Without the existence of specified protocols mandated by the military, there are no pertinent discretionary decisions made by the government which the court must protect. An example of this came in the application of Boyle in Chapman, where the court did not find evidence of any precise specifications and thus found the Boyle test inapplicable.

The second prong of the test requires that the contractor completed its duties according to the standard required by the specific governmental regime or protocol. This prong comes from the Boyle test’s requirement that the final product met government specifications.

This requirement is necessary to definitively connect the injury at issue to a discretionary decision made by the military and would preclude immunity in situations in which the contractor either did not complete its duties or did so negligently. Contractors who negligently perform their obligations should not be protected from liability simply because they have a contract with the government. Furthermore, because the military’s discretionary decision would be too far removed from claims involving contractor negligence, such claims would not be covered by the policy rationales underlying the discretionary‐​function exemption. In attempting to establish the immunity, the contractor would have to show that its performance complied with its government instructions.

The third prong of the test requires that the contractor disclose to the United States any knowledge of risks or dangers that it knew of within the government’s plans. This flows directly from the final part of the Boyle test, which requires that “the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not the United States.” The third factor, as in Boyle, is necessary to prevent contractors from protecting themselves merely by not disclosing their own awareness of risks.

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