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Harris v. Kellogg

March 31, 2009


The opinion of the court was delivered by: Judge Nora Barry Fischer



In this action, the Court must determine whether wrongful death and survival claims by Cheryl A. Harris and Douglas Maseth, executrix and executor of the Estate of Staff Sergeant Ryan D. Maseth ("Plaintiffs") against Defendant Kellogg, Brown & Root Services, Inc.*fn1 ("Defendant" or "KBR") present non-justiciable political questions or if such claims are preempted by the "combatant activities" exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2680(j).

Staff Sergeant Maseth, an Army Ranger and Green Beret serving with the 5th Special Forces Group (Airborne) of the United States Army, tragically died on January 2, 2008 after a water pump short circuited, causing him to be electrocuted while showering at a military base in Baghdad, Iraq. KBR, a private military contractor, provided operations and maintenance services at that base pursuant to a contract with the Army. Plaintiffs' claims allege that KBR's negligence proximately caused Staff Sergeant Maseth's death.

Pending before the Court is a motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure filed by KBR. (Docket No. 18). The Court has permitted the parties to conduct limited discovery related to the issues raised in KBR's motion to dismiss. Upon consideration of the present record and based on the following, the Court finds that Plaintiffs' claims neither raise non-justiciable political questions nor are they preempted by the combatant activities exception to the FTCA. Accordingly, KBR's Motion to Dismiss [18] is DENIED.


A. Factual Background Established During Limited Discovery*fn2

1. United States Army LOGCAP Program

In 1985, the United States Army issued Army Regulation 700-137 and thereby instituted the Logistics Civil Augmentation Program ("LOGCAP"), authorizing the use of "civilian contractors to perform selected services in wartime to augment Army forces." U.S. Army Reg. 700-137, at 1-1 (Dec. 16, 1985). The Regulations establish the "policies, responsibilities, and procedures" related to the Army's authorized use of civilian contractors in peacetime and wartime support operations, both in the continental United States and overseas. Id. at 1-1; 2-1.

The Regulations also recognize the importance of the use of civilian contractors in support of the Army's operations, explaining that the "[u]tilization of civilian contractors in a theater of operation will release military units for other missions or fill shortfalls." Id. However, the Army explicitly identifies in its Regulations that the "use of civilian contractors versus U.S. military personnel involves a higher degree of risk" because the performance of such contractors "cannot be accurately predicted." Id. at 2-4.

2. Invasion of Afghanistan and Iraq

"Following the terrorist attacks of September 11, 2001, the United States led a military invasion of Afghanistan and, later, Iraq." Lane v. Halliburton, 529 F.3d 548, 554 (5th Cir. 2008). In support of these missions, the United States Army engaged certain civilian contractors to provide services in Afghanistan and Iraq under the LOGCAP program, including Brown & Root Services, Inc., now known as Kellogg, Brown & Root Services, Inc., which was awarded the LOGCAP III*fn3 contract with the United States Army on December 14, 2001.

At some point during the invasion of Iraq, a military base was established outside of Baghdad named the Victory Base Complex ("VBC"). (Docket No. 122-6 at ¶ 2; Docket No. 122-7 at ¶ 5). The VBC "includes fourteen distinct military base camps" as well as Baghdad International Airport. (Docket No. 122-7 at ¶ 5). Within the VBC, the military controlled all decisions with respect to "where to house soldiers, where to station headquarters and command centers, and which existing hardstand*fn4 buildings to use as living quarters." (Docket No. 122-7 at ¶ 7). Many of the buildings in the VBC were pre-existing Iraqi structures with substandard electrical systems that needed to be upgraded by military personnel or government contractors. (Docket No. 122-7 at ¶¶ 6-8). These types of upgrades consisted of services that were outside of the scope of the LOGCAP III contract. (Docket No. 122-7 at ¶ 8). As the buildings were located in a war zone, they were also persistently under attack by mortar, missile and small arms fire. (Docket No. 122-7 at ¶ 3).

One of the base camps located within the VBC is the Radwaniyah Palace Complex ("RPC"). In its function as a military base, the RPC "serves as the headquarters for Combined Joint Special Operations Task Force personnel operating in Iraq." (Docket No. 122-6 at ¶ 7; Docket No. 20-2 at 5; Docket No. 23-2 at 2). The military "has overall responsibility for, and authority and control of, the activities and operations that take place at the RPC." (Id.). The RPC was built by the Iraqis during the regime of Saddam Hussein and consists of more than 100 separate buildings. (Docket No. 20-2 at 5; Docket No. 23-2 at 2; Docket No. 122-2 at 4, p. 98). Like the VBC generally, the military controlled and decided in which buildings soldiers were housed at the RPC. The military personnel that have presented the Court with sworn declarations or given deposition testimony in this matter have intimated that it was well known within the military that the buildings in the VBC and RPC did not meet Western construction standards and that there were deficiencies in the electrical systems, including a lack of proper grounding. (Docket No. 23-2 at 2; Docket No. 122-2 at 3, p. 62, 12, p. 206; Docket No. 122-6 at ¶ 4). Despite the presence of known substandard electrical systems, the military made a decision to house soldiers in these buildings as safer than manufactured housing, given the risk of mortar attacks and shelling.

Due to its size, the RPC was divided into compounds or areas. One such area was known as the Legion Security Forces Compound ("LSF").*fn5 (Docket No. 23-2 at 3; Docket No. 35-2 at 3). Staff Sergeant Maseth was housed in one of the buildings within the LSF, known as LSF-B1. (Docket No. 122-6 at ¶ 6).

3. LOGCAP III Contract*fn6

The military also made a decision to engage KBR to provide maintenance services at the RPC pursuant to its LOGCAP III contract with the United States Army and Task Order 139 issued pursuant thereto. The LOGCAP III base contract, Contract No. DAAA09-02-D-007, references the applicable statutes and regulations or portions thereof including various Army Regulations, Federal Acquisition Regulations ("FAR") and Defense Federal Acquisition Regulations ("DFAR"). As this document is a general contract designed to govern a wide range of supplies to be provided and services to be rendered by KBR, no specific supplies or services are outlined therein. Section I-215 of the base contract provides, in part, that "any ... services to be furnished under this contract shall be ordered by the issuance of ... task orders." (LOGCAP III contract, § I-215). In addition, the base contract specifies the applicable provisions of the Statement of Work ("SOW"), Attachment 001 to the base contract, that also govern the relationship.


The SOW attached to the base contract generally describes the LOGCAP program, the divisions of the United States Army that are responsible for oversight of the program, compliance and documentation requirements for the contractor as well as performance assessment standards. Like the base contract, the specific services to be performed by the contractor are not set forth in the SOW, which also provides that "[a]ll work to be performed shall be awarded by individual task orders." (LOGCAP III contract, Statement of Work at § 1.3). However, several provisions contained in the SOW are pertinent to the instant matter. Section 1.11 of the SOW clearly describes the relationship between the parties and establishes that the contractor maintains control over its employees, while the Army is responsible for managing and ensuring the contractor's compliance with the terms and conditions of the agreement. (Id. at 1.11). Specifically, section 1.11 provides that:

1.11 Contractor/Government Relationships. The relationship of the Contractor and the U.S. Army shall at all times be that of independent Contractor. The Contractor shall have exclusive supervisory authority and responsibility over employees. The government shall manage the contract but will not exert control or supervision over contractor employees. (Id. (emphasis added)). In addition, the base contract also delineates that the contractor is responsible for the quality of its services and has control of the coordination of all aspects of its performance, as agreed by the parties at paragraph 1.14:

1.14 Quality Control. The Contractor will be responsible for the quality, technical, logistical and financial accuracy, and the coordination of all aspects of performance. (Id. at § 1.14 (emphasis added)). The Army demands that the contractor strictly comply with the terms and conditions of the LOGCAP III contract. This is exemplified in section 7.0, which provides that:

7.0 Government Directives and Applicable Documents.

7.1 General. The Contractor is obligated to follow and adhere to the Governing directives and applicable documents as listed in the contract and the SOW. Supplements or amendments to those documents shall be considered to be in full force and effect upon receipt by the Contractor, except when such document is deemed to cause an increase or decrease in the cost of contract performance. In such event, the Contractor shall inform the Contracting Officer in writing prior to implementation of such supplement or change. If applicable, a negotiated change in contract price shall be made to the mutual satisfaction of both the Contractor and Government prior to the implementation of the change. (Id. at § 7.1).

5. Task Order 139

In December 2006, pursuant to the LOGCAP III contract, the United States Army issued Task Order 139. Applicable to the instant matter, Task Order 139 "governs the base life support functions" to be performed by KBR at military bases in Iraq, and specifies the services to be provided thereto including Facilities and Operations & Maintenance Services. (Task Order 139, version 16, § 1.0). Task Order 139 also contains specific language which further describes the roles of both the contractor and the government.

Pursuant to Task Order 139, the contractor is responsible for the safety of employees and base camp residents during its operations, controlling all aspects of its performance and maintaining supervision of its employees. These duties are highlighted in the following provisions:

1.1.2 Worksite Safety. The contractor shall be responsible for safety of employees and base camp residents during all contractor operations conducted in accordance with this Statement of Work and the Army and Occupational Safety and Health Administration (OSHA) safety regulations and guidance as it applies to the Iraq Theater of Operations. (Id. at § 1.1.2).

1.10 OPERATIONAL CONTROL. Operational Control (OPCON) in the context of this SOW is defined as the contractor being fully responsible for performing the function, service or capability specified by the government. The contractor shall report performance outcomes to the responsible or accountable government official in charge. The contractor shall maintain supervisory control over all contractor employees. (Id. at § 1.10 (emphasis added)).

6.0 CONTRACTOR PERSONNEL REQUIREMENTS. The contractor shall maximize opportunities to use host country national personnel, materials, products, and equipment. The contractor shall, to the maximum extent practicable, hire host country national (HCN) personnel in cooperation with diplomatic agreements between the USG and the host nation. The contractor shall have exclusive supervisory authority and responsibility over employees. (Id. at § 6.0. (emphasis added)). Moreover, the parties agreed that "[n]otwithstanding any other provisions of this [Scope of Work] SOW, the contractor shall comply with all U.S. laws applicable to contractors supporting United States Government (USG) operations overseas." (Id. at § 1.1.).

The Army's role under Task Order 139 remains to manage and ensure compliance with the contract. In addition, the Army controlled any changes to the terms and conditions of the contract. This is demonstrated in section 1.2, which provides that "[a]ll increases, decreases or modifications to requirements specified in this SOW are at the direction of the [Administrative Contracting Officer (ACO)] in coordination with the Procuring Contracting Officer (PCO)." (Id. at § 1.2.).

Task Order 139 also specifies the services to be provided by KBR to the United States Army in Iraq. Applicable to the instant matter, section 8 of Task Order 139 details Operations and Maintenance Services. Those provisions state as follows:

8.1. FACILITIES MANAGEMENT AND OPERATIONS & MAINTENANCE (O&M) SERVICES. The contractor shall provide O&M Services and establish a preventative maintenance program to maximize life expectancy of base camp facilities at a reasonable cost to the Government. O&M consists of maintenance and repair of facilities listed in Appendix F (Facilities)...

8.1.1 Operations & Maintenance also includes the repair and/or replacement of equipment and major electrical appliances such as electrical heating, air-conditioning, refrigeration systems, freezer systems, and kitchen systems used to provide services to facilities listed in Appendix F.

8.1.2. Technical Inspection of all facilities not initially designated as "Level A" in Appendix F (Facilities) shall be completed before the contractor assumes O&M responsibilities. Upon conclusion of the technical inspection, if a facility requires substantial repairs, then those repairs will be completed in coordination with the LSO and the base camp mayor and at the direction of the ACO, prior to assuming O&M. Upon completion of Technical Inspection and correction of any deficiencies, the ACO will direct the contractor to assume O&M and amend Appendix F (Facilities).


8.1.4. O&M maintenance, repairs or replacement will be initiated by a customer service request. The contractor shall establish a database to manage service requests and response times. Emergency*fn7 services requests shall be responded to within 2 hours. At a minimum, emergency repairs consist of failure in water, sewage, electric, general utility networks and those functions pertaining to force protection and operational considerations. The contractor shall notify the ACO and the Base Camp Mayor if repairs cannot be affected within the 2 hour time period. The initial response from the contractor back to the mayor's cell shall be made via telephone, followed up in writing, and will provide a mitigation plan.


8.4. ELECTRICAL DISTRIBUTION. The contractor shall replace, maintain, and repair electrical distribution systems and equipment to include, but not limited to, switchgear, distribution panels, lighting, and electrical outlets. Appendix F (Facilities) identifies those facilities that will receive full service. (Id. at § 8 (emphases added)). As recognized in many of the provisions above, Appendix F details the levels of O&M services that can be ordered by the military and provided by KBR under the contract. Appendix F states that:


F.1. Appendix F applies to all facilities (such as hard structure buildings, guard towers, etc.) located on military base camps. The appendix is subdivided into three Levels: A, B and C. Appendix F will be included in the consolidated MSOW as tab[s] "Facilities".

F.1.1. Determination for the total number of buildings located on a particular facility is a joint effort between the Mayoral Cell*fn8 and the contractor.

F.1.2. Prioritization of facility levels (A, B and C) is the responsibility of the Mayoral Cell.

F.2. There are two levels of maintenance that the contractor shall provide: Level A, Full Maintenance and Level B, Limited Maintenance. Facilities prioritized into Level C receive no contractor maintenance.

F.2.1. Level A, Full Maintenance.

F.2.1.1. The contractor shall provide maintenance on any items pertaining to these facilities that can be repaired (such as plumbing, electrical, HVAC, roofs, floors, windows, doors, walls and grounds around the facilities) and provide preventative maintenance (such as change out of filters, HVAC cleaning, etc).

F.2.1.2. The Government will initiate a service request for all maintenance repairs pertaining to Level A.

F.2.2. Level B: Limited Maintenance.

F.2.2.1. Limited Maintenance does not include inspections, preventative maintenance and upgrades.

F.2.2.2. Upon receipt of service request, the contractor shall conduct an assessment to determine feasibility of repair or replacement of existing items. The assessment shall be provided to the Mayoral Cell. F. If the assessment determines repair or replacement is warranted, the contractor shall repair or replace existing items only. F. Repair or replacement of existing items is defined as items, which currently exist in the facility, and are within current funding streams.

F. If the assessment exceeds the scope of repair or replacement; the contractor shall return the service request to the Mayoral Cell for disposition.

F.2.2.3. Any repairs or replacement that need to be done on the facility will be initiated with a service request by the customer.

F.3. Facility determination and prioritization should be reviewed jointly between the Mayoral Cell and the contractor F.4. Preventive Maintenance: F.4.1. A Category. Inspection should be conducted every 60 days, but can be modified by the base camp mayor for more or less frequent inspections on an individual basis. The purpose of these inspections is for safety and to save the government money by identifying deficiencies while they are still small and easy to fix. Inspection should include but is not limited to the following: F.4.1.1. Electrical. Check for damage or tampering with switches, outlets, junction boxes, control panels, circuit breakers, fuses, grounding rods, and overloading.

F.4.1.2. Plumbing. Check for leaks, drips, corrosion in showerheads, shower curtains, water pressure, hot water temperature, and evidence of water damage to floors and walls.

F.4.2. B Category. Contractor shall provide service support either by service order or ACL. Upkeep and inspection not part of services. Power generation: check based on Power Generation tab contained in the Consolidated MSOW and MSOW. (Id. at Appendix F).

6. Project Planning Estimate

On February 8, 2007, the United States Army, through the LOGCAP program, requested KBR "to provide a project planning estimate to perform maintenance services on 126 ... buildings, as well as other facilities and functions at RPC." (Docket No. 20-2 at 14, 36). KBR "requested several weeks to conduct technical inspections for the 126 buildings to evaluate their maintenance needs and current state of repair." (Docket No. 20-2 at 15). However, the Army granted KBR less than two weeks to complete the technical inspection process. (Id.). In addition, KBR and the Army discussed the level of maintenance service to be provided in the project planning estimate, i.e., whether KBR would provide Level A or Level B maintenance services as set forth in Appendix F to Task Order 139. (Id.). The Army determined that the cost associated with Level A maintenance was prohibitive and requested an estimate as to Level B maintenance, only. (Id. at 16).

Prior to the completion of the project planning estimate, KBR conducted a technical inspection*fn9 of the RPC on February 10, 2007 pursuant to Task Order 139.*fn10 Task Order 139 provides the following regarding a project planning estimate:

8.25. PROJECT PLANNING. The contractor shall provide assistance to the supported unit for project and facility planning and scheduling as requested by the LOGCAP Support Unit. Planning shall consist of site assessments, technical risk assessments, alternative analyses, environmental impact assessments, project schedules and project planning estimates for labor, equipment, materials and subcontract requirements. (Task Order 139, version 16, at § 8.25, version 14.2 at § 8.24). The February 10, 2007 technical inspection report prepared by KBR identified several electrical deficiencies at "Radwaniyah Palace D9" and "LSF Office."*fn11 (Docket No. 121-3). The problems identified in the report included, inter alia: a lack of grounding of a main distribution panel; incorrectly sized and not properly grounded wires on secondary feeder wire circuits; and, an improperly grounded water heater tank. (Id.). As set forth on the report, despite the noted deficiencies, the main distribution panel for the "Radwaniyah Palace D9" was identified by KBR with an equipment condition code ("CC") of "B5 Serviceable - used, fair (w/ qualifications)." (Id.).

In response to the Army's request and after completing the technical inspection, KBR submitted a Project Planning Estimate ("PPE") to the Army dated February 19, 2007 with revisions completed on February 20 and 23, 2007. (Docket No. 121-2). The PPE is essentially a quoted estimate for the cost of services to be performed by KBR under the contract. The period of performance for the PPE was identified as February 24, 2007 through August 31, 2007. (Id.). The PPE also contains several "Estimate Assumptions," many of which are applicable here. They are as follows:

8. KBR may, at its option, use any equipment, material, article or process that in the judgment of KBR will provide the performance requirements of the product and be consistent with good business practic[e].


14. The short suspense for the PPE does not allow for a complete TI of each building. KBR assumes the buildings are up to the quality standards of LOGCAP and has based the estimate on assuming O&M on buildings and peripheral equipment that are in acceptable condition.


16. KBR assumes the building systems to be in good condition and upon discovery of defective systems (Electrical, Mechanical, or Structural) repairs will be made only at the direction of an ACL. KBR has included the ...

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