Earlier last week, the Professional Services Council filed an amicus brief in the United States Supreme Court in support of a writ of certiorari of a Third Circuit decision regarding contractor immunity in war zones. The case involves a wrongful death suit by the estate of a member of the military who was accidentally electrocuted in Iraq while taking a shower in his barracks.
The Third Circuit, in Harris v. Kellogg Brown & Root Services, Inc., found that the combatant activities exception to the Federal Tort Claims Act did not preempt plaintiff’s claim. 724 F.3d 458, 462 (3d Cir. 2013). The Third Circuit also denied many of the contractor’s arguments regarding the political question doctrine and remanded other questions about the political question doctrine for further proceedings in district court. The contractor is seeking review of the Third Circuit’s decision.
The amicus brief filed by the Professional Services Corporation raises a valuable point to consider in cases involving government contractors: pursuant to FAR 52.228-7, contractors with cost-reimbursement contracts have the right to reimbursement for negligence claims brought against contractors. Thus, as the brief points out, the net effect of a successful claim against the contractor will result in the government paying for the claim. That result could not occur had the government been found negligent, because the government is protected by sovereign immunity.
The amicus brief highlights one aspect of the various and complex doctrines that may apply when federal contractors are sued under state law for work performed as part of their government contract. Depending on the type of contract, the type of work being performed, and the nature of the state law claim, a number of immunities and federal defenses may apply.