The Government Contractor Defense &
Its Impact on Litigation Against Military Contractors
By Kateryna Rakowsky
December 29, 2005
This Memorandum addresses the history of the government contractor defense and its
present-day applications in pending litigation arising from alleged misconduct by military
contractors in Iraq and Afghanistan.
The government contractor defense, or GCD, is the primary defense historically used by
military contractors (or Private Military Firms, aka “PMFs”). The GCD grants PMFs
immunity from state tort claims against federal government contractors. While the
history of civil litigation against PMFs runs along several distinct tracks of case law,1 the
most prominent track centers around traditional articulations of the GCD. The GCD is a
judicially created doctrine, rooted in courts’ interpretations of the Federal Tort Claims Act
(FTCA). Traditionally, the GCD has been anchored to one particular exception to the
FTCA, the “discretionary function” exception.2 It was typically applied to products
liability claims, although the 1990s saw an expansion in both its scope and its asserted
legal foundation. Current litigation tests this expansion in unprecedented ways.
Part I of this Memorandum traces early articulations of the GCD, its development after
passage of the FTCA in 1945, and the modern-day justification for its expansion. 3 It also
considers some limitations to the GCD, and certain strategies that have been advanced for
defeating it. Part II examines pending litigation arising from the use of military
contractors in current military operations in Iraq and Afghanistan. The causes of action
span the full range of tortious behavior, from recklessness in the operation of airplane
flights and truck convoys, to torture in the Abu Ghraib prison. Their resolution will force
courts to address the many new uses of PMFs by the military. It will also more fully
delineate the framework of rights available to soldiers and civilians harmed by PMF
1
Another track of litigation involves claims made by civilians while working for PMFs on military bases.
The case law in these suits centers on federal preemption of claims under the Defense Base Act (DBA).
The DBA is a federal statute that extends the Longshore and Harbor Worker’ Compensation Act
(LHWCA), providing a worker’s compensation scheme to certain groups of individuals employed in
defense work outside the United States (typically on military, air, or naval bases).CITE It is read to
preempt personal injury claims by civilian contractors against their PMF-employers. Yet another track is
based in an exception to the Federal Tort Claims Act, the “combatant activities” exception, which states that
the US is immune from “any claim arising out of combatant activities of the military or naval forces, or the
Coast Guard, during time of war.” 28 U.S.C. § 2680(j). This exception, like the “discretionary function”
exception discussed in this memo, has been applied to immunize not only the government, but its military
contractors, from suit, as well. See e.g., Koohi v. United States, 976 F.2d 1328, 1333 (9th Cir. 1992).
2
28 U.S.C. § 1346(b
3
For an comprehensive overview of the development and current scope of the government contractor
defense, see also “The Government-Contractor Defense to State Product Liability Laws,” 53 A.L.R.5th 535
(2004); and Alison M. Levin, Note: “The Safety Act of 2003: Implications for the Government Contractor
Defense,” 34 Pub. Cont. L.J. 175, 183-87 (2004) (providing detailed discussion of the history and status of
the GCD).
Page 1 of 33
misconduct.
Table of Contents
I. The Government Contractor Defense (GCD): Its initial application to military
contractors in products liabilities cases & subsequent expansion………………………………….3
A. Early Judicial Articulation of the Government Contractor Defense & Its Application
to Construction Projects………………………………………………………………………………………3
B. The FTCA & Immunity Arising Out Of The Feres Doctrine……………………………….. 5
C. Stencel: Extension of the Feres doctrine to bar military contractors’ third party
indemnifications…………………………………………………………………………………………………8
D. Effects of the Feres-Stencel doctrine: courts turn to the GCD to immunize military
contractors…………………………………………………………………………………………………………9
E. Foundation of The Modern-Day Defense: Boyle v. United Technologies Corp….. 13
F. Boyle’s Progeny: The subsequent expansion of the GCD………………………………….. 15
1. Boyle’s vertical expansion into failure-to-warn and manufacturing claims……… 16
2. Boyle’s horizontal expansion beyond military contractors & procurement
contracts……………………………………………………………………………………………………… 17
G. Challenges to raising a Boyle government contractor defense…………………………… 20
1. Limiting Boyle—the Ninth Circuit’s more restricted application of the GCD…..20
2. Hurdles to passing Boyle’s three prong test—where plaintiffs have had the most
success fighting the GCD……………………………………………………………………………….22
H. Conclusion to Part I………………………………………………………………………………………24
II. Select Summary of Currently Pending Cases Against Military Contractors……………. 26
A. Soldiers (or their estates) suing contractors / PMFs: McMahon et al. v. Presidential
Airways Inc. et al…………………………………………………………………………………………….. 26
B. Contractors (or their estates) suing PMFs: Richard P. Nordan v. Blackwater
Security Consulting, LLC…………………………………………………………………………………. 28
C. Civilians (or their estates) suing contractors / PMFs: The Abu Ghraib Cases……..30
D. Conclusion to Part II…………………………………………………………………………………… 32
Page 2 of 33
I. The Government Contractor Defense (GCD): Its initial application to military
contractors in products liabilities cases & subsequent expansion
The government contractor defense “shields contractors from tort liability for products
manufactured for the Government in accordance with Government specifications, if the
contractor warned the United States about any hazards known to the contractor but not to
the Government.”4 It is a federal common law defense traditionally immunizing
independent government contractors from being held strictly liable in state tort actions.5
This Memo examines the origins of the GCD, tracing its evolution alongside the
development of the Feres Doctrine. It also examines how these two affirmative defenses
created the original foundation for military contractor immunity, under what came to be
known as the Feres-Stencel doctrine. This doctrine was invoked by many courts until
1988, when Justice Scalia’s decision in Boyle v. United Technology Corp., 487 U.S. 500
(1988) disavowed Feres-Stencel as the legal basis for military contractor immunity.6 This
Memo further considers the impact of Boyle and its progeny on the scope of the
immunity, and concludes with a final analysis of its current boundaries.
A. Early Judicial Articulation of the Government Contractor Defense & Its
Application to Construction Projects
The history of the GCD is complex, as its justifications are rooted in several different
doctrines, spanning over half a century of jurisprudence. Originally applied to
government construction projects,7 it was not until the late 1970s that the GCD was
broadened to include military contractors.8
Most courts and scholars place the origins of the GCD (in its most generic form) in
Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940).9 In that case, the Supreme
Court held that a government contractor / construction company could not be held liable
for washing away part of plaintiff’s land, where “authority to carry out the project was
validly conferred” by the federal government and where the contractor complied with
government specifications in executing the contract.10 The precise basis for the defense
4
Hercules Inc. v. United States, 516 U.S. 417, 421-22 (1996).
5
R. Joel Ankney, “But I was only following orders”: The Government Contractor Defense in
Environmental Tort Litigation, 32 WM AND MARY L. REV. 399, 399 (1991).
6
Examined further in Part I, E.
7
McKay v. Rockwell Intern. Corp., 704 F.2d 444, 448 (C.A.Cal.1983) (noting origins of GCD); see also
Tozer v. LTV Corp., 792 F.2d 403, 405 (4th Cir. 1986) (citing to McKay).
8
McKay v. Rockwell Intern. Corp., 704 F.2d 444, 448 (C.A.Cal.,1983)(noting origins of GCD).
9
See e.g., U.S. ex rel. Ali v. Daniel, Mann, Johnson & Mendenhall, 355 F.3d 1140, 1146-47 (9th Cir.
2004); Smith v. Lockheed Propulsion Co., 56 Cal.Rptr. 128, 139 (Cal.App. 4, 1967); R. Joel Ankney,
supra note 7, at 401-02; R. Todd Johnson, Comment, In Defense of the Government Contractor Defense,
36 CATH. U.L. REV. 219, 228 (1986). See also Bynum v. FMC Corp., 770 F.2d 556, 564 (5th Cir. 1985).
Bynum is also interesting in that it was pre-Boyle case that declined to extend the GCD to military
contractors, stating that “[t]he difficulty of establishing a traditional agency relationship with the
government makes the derivative sovereign immunity defense ill-suited to many manufacturers of military
equipment.” Id.
10
Yearsley v. W.A. Ross Construction Co., 309 U.S. 18, 20 (1940).
Page 3 of 33
was not clear, but it seemed to rest on a combination agency theory11 and, in response to
petitioners’ arguments, the Fifth Amendment’s Takings Clause.12
Subsequent cases, such as Myers v. United States, 323 F.2d 580 (9th Cir.1963), cited to
Yearsley in upholding that defense—based on a similar combination of agency theory and
the Fifth Amendment—for government contractors performing construction work.13 “To
the extent that the work performed by [highway construction company] McLaughlin, Inc.,
was done under its contract with the Bureau of Public Lands, and in conformity with the
terms of said contract, no liability can be imposed upon it for any damages claimed to
have been suffered by the appellants.”14
Two years later, the court in Dolphin Gardens, Inc. v. United States, 243 F. Supp. 824 (D.
Conn. 1965), held that the contractor in question was immune from liability for damages
caused by fumes from dredged material, where the contractor performed its contract
according to government specifications.15 The court cited Yearsley’s agency arguments:
‘Where an agent or officer of the Government purporting to act on its behalf has
been held to be liable for his conduct causing injury to another, the ground of
liability has been found to be either that he exceeded his authority or that it was
not validly conferred.’
However Dolphin Gardens also intertwined the traditional agency-based GDC theory
with another defense, the “discretionary function” exception to the Federal Tort Claims
Act (discussed in more detail below, in parts B & E). This exception precludes FTCA
claims based upon the exercise of “a discretionary function or duty on the part of a federal
agency.”16 The government (which was sued alongside the contractor) successfully raised
this defense in its motion for summary judgment, inspiring the court to invoked it when
applying the GCD to the contractor, as well:
To impose liability on the contractor under such circumstances would render the
Government’s immunity for the consequences of acts in the performance of a
‘discretionary function’ meaningless, for if the contractor was held liable,
contract prices to the Government would be increased to cover the contractor’s
risk of loss from possible harmful effects of complying with decisions of executive
officers authorized to make policy judgments17
Although it was not especially prominent in the debate over military contractor immunity
11
Yearsley v. W.A. Ross Construction Co., 309 U.S. 18, 21 (1940) (“Where an agent or officer of the
Government purporting to act on its behalf has been held to be liable for his conduct causing injury to
another, the ground of liability has been found to be either that he exceeded his authority or that it was not
validly conferred”)
12
“So, in the case of a taking by the Government of private property for public use such as petitioners
allege here, it cannot be doubted that the remedy to obtain compensation from the Government is as
comprehensive as the requirement of the Constitution, and hence it excludes liability of the Government’s
representatives lawfully acting on its behalf in relation to the taking.” Yearsley, 309 U.S. at 22.
13
Myers v. United States, 323 F.2d 580, 583 (9th Cir.1963).
14
Id.
15
Dolphin Gardens, Inc. v. United States, 243 F. Supp. 824, 827 (D. Conn. 1965)
16
Specifically, the exemption pertains to “[a]ny claim … based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a)
17
Dolphin Gardens, Inc., 243 F. Supp. at 827.
Page 4 of 33
at that time, this legal justification would eventually form the basis for the defense in the
late 1980s.
B. The FTCA & Immunity Arising Out Of The Feres Doctrine
However, this immunity was not extended to military contractors until the late 1970s,
although defendants did (unsuccessfully) attempt to invoke it as early as the 1960s.18 This
was in part because larger questions concerning the military’s own immunity from suit
loomed over courts as a result of the Federal Tort Claims Act.19
When Congress enacted the FTCA in 1945, it waived the government’s immunity from
suit where negligent government employees, acting within the scope of their employment,
caused “injury or loss of property, or personal injury or death.”20 Originally, the FTCA
specifically included the military, and acts undertaken in the line of duty.21
The Supreme Court initially upheld this right, albeit cautiously. In Brooks v United
States (337 US 49 (1949)), the first case addressing service members’ right to recovery to
reach the Court, a soldier sued the government for injuries he sustained off-duty when his
automobile collided with a negligently operated Army truck.22 The Court held that the
FTCA gave service members the right to bring claims against the government, where
those claims arose out of negligence.23 Justice Murphy, writing for the majority, asserted
that “[t]he statute’s terms are clear. They provide for District Court jurisdiction over any
claim founded on negligence brought against the United States. We are not persuaded that
‘any claim’ means ‘any claim but that of servicemen.’24
The Court did, however, limit its holding to exclude injuries sustained incident to the
claimant’s service.25 Justice Murphy wrote:
The Government envisages dire consequences should we reverse the judgment. A
battle commander’s poor judgment, an army surgeon’s slip of hand, a defective
jeep which causes injury, all would ground tort actions against the United States.
But we are dealing with an accident which had nothing to do with the Brooks’
army careers, injuries not caused by their service except in the sense that all
human events depend upon what has already transpired. Were the accident
incident to the Brooks’ service, a wholly different case would be presented. We
18
See, e.g., Littlehale v. E.I. du Pont de Nemours & Co, 380 F.2d 274 (2d Cir. 1967) and discussion infra
at n.54.
19
28 U.S.C.A. §§ 1346, 2671 et seq.
20
28 U.S.C.A. § 1346(b)(1).
21
28 U.S.C.A. § 2671, see also Herbert B. Chermside, Jr., J.D. Serviceman’s Right to Recover under
Federal Tort Claims Act (28 U.S.C.A. §§ 2671 et seq.), 31 A.L.R. Fed. 146, § 2 (1977-2000). Chermside
goes on to write, “especially since another section of the Act (28 U.S.C.A. § 2680(j)) specifically excepts
liability on any claim arising out of the combatant activities of the military or naval forces, or the Coast
Guard, during time of war…it might be concluded that the Act authorizes all servicemen’s actions except
those arising from combatant activities.” Id.
22
Brooks v United States, 337 US 49, 50 (1949).
23
Brooks, 337 US at 51.
24
Id.
25
Id., at 52.
Page 5 of 33
express no opinion as to it… that is not the case before us.26
Such a “wholly different” case did arise, just one year later in Feres v United States, 340
US 135 (1950). Feres consolidated three cases into one,27 unified by fact that all three
involved a claimant whom, “while on active duty and not on furlough, sustained injury
due to negligence of others in the armed forces.”28 In Feres, the Court held that “the
Government is not liable under the Federal Tort Claims Act for injuries to servicemen
where the injuries arise out of or are in the course of activity incident to service.”29
Justice Jackson, writing for a unanimous Court, noted the dearth of legislative history
addressing the FTCA’s scope vis-à-vis the armed forces.30 The decision turned in large
part on “private parallel liability” and a reading of what Justice Jackson described as “the
test of allowable claims”: text in the statute stating that “[t]he United States shall be
liable…in the same manner and to the same extent as a private individual under like
circumstances…”31 The Court understood this to mean that the FTCA was not intended to
create a new cause of action where none had hereto existed; rather, it was to allow
liability “under circumstances that would bring private liability into existence.”32 This
reading limited claims available to the plaintiffs in question:
One obvious shortcoming in these claims is that plaintiffs can point to no liability
of a ‘private individual’ even remotely analogous to that which they are asserting
against the United States. We know of no American law which ever has permitted
a soldier to recover for negligence, against either his superior officers or the
Government he is serving. Nor is there any liability ‘under like circumstances,’
for no private individual has power to conscript or mobilize a private army with
such authorities over persons as the Government vests in echelons of command.33
Justice Jackson considered the analogy of the state militia, as well, finding no instances
where a state allowed tort actions against it to go forward, where injuries were incident to
service.34
Interestingly, Justice Jackson admitted that private liability would “undoubtedly” ensue if
the status of the parties were not considered.35 That is to say, the three cases at hand did
not consist of injuries incurred during the course of the soldiers’ duty in the most
traditional sense: two cases (Jefferson v. U.S., and Griggs v. U.S) were medical
26
Brooks, 337 US at 52-53 (1949) (internal citations omitted).
27
The three cases were Jefferson v. U.S., 178 F.2d 518 (4th Cir. 1949) (brought by Arthur K. Jefferson);
Feres v. U.S., 177 F.2d 535 (2nd Cir. 1949) (brought by Bernice B. Feres, as executrix under the last will
and testament of Rudolph J. Feres, deceased); and Griggs v. U.S., 178 F.2d 1 (10th Cir. 1949) (brought by
Edith Louise Griggs, as executrix of the estate of Dudley R. Griggs, deceased).
28
Feres v United States, 340 US 135, 138 (1950).
29
Feres, 340 US at 146.
30
Id., at 138.
31
Id., at 141, citing 28 U.S.C. § 2674 and 28 U.S.C.A. § 2674.
32
Id., at 141.
33
Id., at 141-42 (footnotes omitted).
34
Id., at 142.
35
Id., at 142.
Page 6 of 33
malpractice claims, while the third (Feres v. U.S.) arose out of a wrongful death claim
based on a fire in army barracks. Although Justice Jackson drew out the analogy for
readers—comparing the government to doctors and landlords, respectively—he
nonetheless concluded that “the liability assumed by the Government here is that created
by ‘all the circumstances,’ not that which a few of the circumstances might create.”36
Finally, in addition to the “private parallel liability” argument, the Court also considered
two additional rationales: the availability of alternative sources of compensation, i.e. the
Veterans’ Benefits Act (VBA),37 and the “distinctively federal” relationship between the
government and members of its armed forces, which would be otherwise subject to local
tort law.38
The Feres Court’s open-ended reading of when precisely injuries are “incident to service”
has given rise to a line of controversial decisions by lower courts. Scholars39 and even
subsequent courts,40 have objected to what they say are overly broad interpretations of the
“incident to service” test. Other authorities merely note that the standard encompasses
situations well beyond those that would fall under a comparable “disabled in line of duty”
36
Feres, 340 US at 142. Ironically, Justice Scalia would criticize this reasoning almost four decades later
in United States v. Johnson (481 U.S. 681 (1987)), where, contemplating the Feres Court’s “parallel private
liability” test, he observed that “[u]nder this reasoning, of course, many of the [FTCA’s] exceptions are
superfluous, since private individuals typically do not, for example, transmit postal matter, 28 U. S. C. §
2680(b), collect taxes or customs duties, § 2680(c), impose quarantines, § 2680(f), or regulate the monetary
system, § 2680(i).” United States v. Johnson, 481 U.S. 681, 703 (1987) (Scalia, J., dissenting).
37
Feres, 340 US at 144. Note that this rationale has been since denominated as “no longer controlling”
(United States v. Shearer, 473 U.S. 52, 58, n. 4. (1985)).
38
Feres, 340 US at 144. While the Feres Court was primarily concerned with the fairness to the soldier
(at 143), this argument has been redefined by subsequent decisions to turn on the military’s need for
uniformity (See, e. g., Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 672 (1977)). Note
that although this reading of the decision comports with Justice Scalia’s interpretation in Boyle, other courts
have read the Feres decision differently (See, e.g., Pringle v. United States, which replaces the “private
parallel liability” argument with a later adopted “fear of damaging the military disciplinary structure”
rationale. Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir. 2000), citing Madsen v. United States ex
rel. United States Army Corps of Engineers, 841 F.2d 1011, 1013 (10th Cir. 1987) (quotation omitted).
39
See Elizabeth A. Reidy, Comment, Gonzalez v. United States Air Force: Should Courts Consider Rape
to be Incident to Military Service?, 13 AM. U.J. GENDER SOC. POL’Y & L. 635 (2005). Reidy discusses
Gonzalez v. United States Air Force (88 Fed. Appx. 371, 374-75 (10th Cir. 2004)), an unpublished decision
by the Tenth Circuit, where a suit for monetary relief under the FTCA “for negligence, gross negligence,
and violation of statutory duties,” along with a Title VII civil rights claim, arising from the rape of one
service member by another, was barred because the injury occurred on-base and while the plaintiff was on
active duty and “subject to military discipline and control.” See also Jonathan Turley, Pax Militaris: The
Feres Doctrine and the Retention of Sovereign Immunity in the Military System of Governance, 71 GEO.
WASH. L. REV. 1 (2003); and John Astley, Note, United States v. Johnson: Feres Doctrine Gets New Life
and Continues to Grow, 38 AM. U.L. REV. 185, (1988) (arguing that “[t]he Johnson Court…failed to
acknowledge that a civilian’s negligence might cause an injury incident to service yet not implicate the
Feres doctrine”).
40
See, e.g. Pringle v. United States, 208 F.3d 1220, 1223-24 (10th Cir. 2000) (quoting Persons v. United
States, 925 F.2d 292, 296 n.7 (9th Cir. 1991)) (observing that the Feres doctrine has been expanded “to the
point where it now “encompasses, at a minimum, all injuries suffered by military personnel that are even
remotely related to the individual’s status as a member of the military”); see also Dreier v. United States,
106 F.3d 844, 848 (9th Cir. 1997) (“Courts applying the Feres doctrine have given a broad reach to Feres’
‘incident to service’ test and have barred recovery by members of the armed services for injuries that at first
blush may not have appeared to be closely related to their military service or status”).
Page 7 of 33
test.41 Since its inception in Feres, the “incident to service” test has been broadened to
block claims made by, among others, soldiers secretly tested with LSD,42 discharged
soldiers held in military-run prisons,43 and soldiers raped by other soldiers.44
C. Stencel: Extension of the Feres doctrine to bar military contractors’ third
party indemnifications
Feres had implications for contractors as well as service members. In Stencel Aero Eng’g
Corp. v. United States, 431 U.S. 666 (1977), the Supreme Court held that because Feres
barred claims against the government by servicemen where injuries were “incident to
duty,” it also protected the government from third party indemnity actions by military
contractors, where indemnity was sought as a result of service-related law suits brought
by servicemen.45
Stencel involved the case of a National Guardsman who was injured when his egress life-
support system malfunctioned during a mid-air emergency.46 He brought suit against the
United States and Stencel Aero Engineering Corporation, manufacturer of the ejection
system.47 Stencel then cross-claimed against the United States for indemnity, claiming
that “any malfunction in the egress life-support system used by [the Plaintiff] was due to
faulty specifications, requirements, and components provided by the United States or
other persons under contract with the United States.”48 The United States moved to
dismiss the cross claim, arguing that Feres barred an indemnity action for damages paid
to military personnel who could not otherwise recover from the government.49
The Court agreed. Writing for the Majority, Justice Burger recalled Feres arguments
concerning the “distinctly federal” nature of relationships between the military and
servicemen:
The relationship between the Government and its suppliers of ordnance is
certainly no less “distinctively federal in character” than the relationship
between the Government and its soldiers. The Armed Services perform a unique,
nationwide function in protecting the security of the United States. To that end
military authorities frequently move large numbers of men, and large quantities of
41
This test is typically used to determine benefits for naval reservists injured during inactive duty training
as provided by 10 U.S.C.A. § 6148. Herbert B. Chermside, Jr., J.D. Serviceman’s Right to Recover under
Federal Tort Claims Act (28 U.S.C.A. §§ 2671 et seq.), 31 A.L.R. Fed. 146, § 2 (1977-2000).
42
United States v. Stanley,483 U.S. 669, (1987) (holding that the secret LSD drugging by the CIA of an
Army sergeant was “incident to service” because it took place on an Army base, pursuant to official orders).
43
Ricks v. Nickels, 295 F.3d 1124 (10th Cir. 2002) (claims made by ex-soldier in possession of Certificate
of Discharge still subject to Feres doctrine)
44
Gonzalez v. United States Air Force (88 Fed. Appx. 371, 374-75 (10th Cir. 2004)) (unpublished
opinion) (rape included among events arising out of military recreational activities that are considered
“incident to service” for the purpose of barring tort claims).
45
Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 673-74 (1977).
46
Stencel Aero Eng’g Corp, 431 U.S. at 667.
47
Id., at 668.
48
Id., at 668.
49
Id., at 669.
Page 8 of 33
equipment, from one end of the continent to the other, and beyond. Significant risk
of accidents and injuries attend such a vast undertaking. If, as the Court held in
Feres, it makes no sense to permit the fortuity of the situs of the alleged
negligence to affect the liability of the Government to a serviceman who sustains
service-connected injuries, it makes equally little sense to permit that situs to
affect the Government’s liability to a Government contractor for the identical
injury.50
Burger’s argument also considered another factor, “[t]he peculiar and special relationship
of the soldier to his superiors [and] the effects of the maintenance of such suits on
discipline.”51 He reasoned that, regardless of whether or not a suit was allowed to be
brought by a serviceman or a contractor, the effect on military discipline would be the
same.52 It would “involve second-guessing military orders, and would often require
members of the Armed Services to testify in court as to each other’s decisions and
actions,” providing another reason to bar such suits.53
The resulting Feres-Stencel doctrine “created an insurmountable dilemma for military
contractors by excusing the government both from suit by servicemen and from
indemnification actions brought by the contractor.”54 As a result, military contractors
turned to traditional defenses, such as the GCD.
D. Effects of the Feres-Stencel doctrine: courts turn to the GCD to immunize
military contractors
As mentioned in Part XX above, the traditional GCD was applied to construction
contracts. Although military contractors attempted to extend the immunity to cover
liability arising from their own manufacture and design of military equipment, courts
refused to do so until the late 1970s,55 when it became clear that the Feres-Stencel
doctrine would force military contractors “to pay for injuries resulting from their
implementation of government specifications.”56 Interestingly, the Feres-Stencel doctrine
was not cited in early cases that laid the groundwork for applying the GCD to military
contractors.57 However subsequent cases drew heavily on Feres in particular, until the
50
Stencel Aero Eng’g Corp., 431 U.S. at 672 (internal citations omitted).
51
Stencel Aero Eng’g Corp., 431 U.S. at 671 (1977); citing to United States v. Brown, 348 U.S. 110, 112
(1954).
52
Id., at 673.
53
Id., at 673.
54
R. Todd Johnson, Comment, In Defense of the Government Contractor Defense, 36 CATH. U.L. REV.
219, 228 (1986)
55
Johnson discusses early attempts at extending the GCD to military contractors in In Defense of the
Government Contractor Defense, 36 CATH. U.L. REV. 219, 229-231 (1986); citing Littlehale v. E.I. du Pont
de Nemours & Co, 380 F.2d 274 (2d Cir. 1967) and Foster v. Day & Zimmermann, Inc. 502 F.2d 867 (8th
Cir. 1974).
56
Charles E. Cantu & Randy W. Young, The Government Contractor Defense: Breaking the Boyle
Barrier, 62 ALB. L. REV. 403, 412 (1998).
57
See, e.g., Sanner v. Ford Motor Company, 144 N.J. Super. 1, (Law Div. 1976);.and In re “Agent
Orange” Product Liability Litigation, 506 F. Supp. 762 (E.D.N.Y. 1980)
Page 9 of 33
Supreme court’s decision in Boyle in 1988.58
The GCD was first extended to military contractors in Sanner v. Ford Motor Company,
144 N.J. Super. 1, (Law Div. 1976).59 In Sanner, the plaintiff was injured when he was
involved in an automobile accident in his military-issued Ford Jeep.60 The Jeep lacked a
roll bar and seatbelts, items that the Army had specifically requested not be included. The
district court granted summary judgment for the defendant, holding that “[a]
manufacturer is bound to comply with plans and specifications provided to it by the
Government in the production of military equipment. If it does it is insulated from
liability.”61
In 1980, Judge Pratt of the District Court for the Eastern District of New York considered
the GCD in depth, in In re “Agent Orange” Product Liability Litigation, 506 F. Supp. 762
(E.D.N.Y. 1980).62 The litigation involved claims brought by veterans and their families
against chemical companies that produced the herbicide Agent Orange (used by the
military during the Vietnam War). In his initial ruling on the GCD, Judge Pratt reviewed
the case law behind the affirmative defense,63 evaluated Dolphin Gardens “discretionary
function” arguments for the extension of governmental immunity to contractors,64 and
considered a recent opinion examining the role of contractors during war time.65 He
concluded that “[h]aving considered all the authorities cited and the arguments of
counsel, the court is satisfied that a government contract defense exists and has possible
application to the facts at bar.”66
58
See In re Chateaugay Corp.146 B.R. 339, 347, n.14 (S.D.N.Y. 1992) (“Prior to Boyle, many Circuits
premised the government contractor defense on the Feres doctrine, which provides that the Federal Tort
Claims Act (“FTCA”) does not cover injuries to Armed Services personnel in the course of military
service”), citing Tozer v. LTV Corp., 792 F.2d 403, 408 (4th Cir.1986); Bynum v. FMC Corp., 770 F.2d
556, 565-66 (5th Cir.1985); Tillett v. J.I. Case Co., 756 F.2d 591, 596-97 (7th Cir.1985).
59
Aff’d, 154 N.J. Super. 407 (App. Div. 1977). See Harry A. Austin, Case Comment, Boyle v. United
Technologies Corporation: A Questionable Expansion of the Government Contract Defense, 23 GA. L.
REV. 227, 237 n.45 (1988); and R. Todd Johnson, Comment, In Defense of the Government Contractor
Defense, 36 CATH. U.L. REV. 219, 228 (1986).
60
Sanner v. Ford Motor Company, 144 N.J. Super. 1, 3-4 (Law Div. 1976).
61
Sanner, 144 N.J. Super. At 8.
62
In re “Agent Orange” Prod. Liab. Litig., 506 F. Supp. 762 (E.D.N.Y. 1980).
63
See In re “Agent Orange” Prod. Liab. Litig., 506 F. Supp. at 792; citing Yearsley, 309 U.S. 18; Myers,
323 F.2d at 583; Dolphin Gardens, Inc., 243 F. Supp. at 827; and Green v. ICI America, Inc., 362 F. Supp.
1263, 1265 (E.D.Tenn.1973).
64
In re “Agent Orange” Prod. Liab. Litig., 506 F. Supp. at 794.
65
Judge Pratt quoted the following passage in Casabianca v. Casabianco: “A supplier to the military in
time of war has a right to rely on such specifications and is not obligated to withhold from the United States
armed forces material believed by the latter to be necessary because the manufacturer considers the design
to be imprudent or even dangerous. His conformance, under such circumstances, to the specifications
provided to him should be, and is, a complete defense to any action based on design, whether faulty or not.”
In re “Agent Orange” Prod. Liab. Litig., 506 F. Supp. at 794; citing Casabianca v. Casabianca. 428
N.Y.S.2d 400, 401-402 (S. Ct. Bronx County 1980) (Stecher, J.). Casabianca is an odd case, in that the
product in question was a dough mixer manufactured according to Army specifications during World War
II. Id. at 401. The case arose almost forty years after the manufacture of the dough mixer, when a child
was harmed by the mixer in his father’s pizza shop. Id. Stating the argument quoted above, the court
dismissed all claims against the manufacturer.
66
In re “Agent Orange” Prod. Liab. Litig., 506 F. Supp. at 796.
Page 10 of 33
When he returned to the question of the GCD two years later, Judge Pratt set out a three
part test that would emerge as a model for future evaluation of similar applications of the
affirmative defense. In In re “Agent Orange” Product Liability Litigation, 534 F. Supp.
1046 (E.D.N.Y. 1982), Judge Pratt stated that, for chemical companies to avail
themselves of the government contractor defense, they must prove that: “(1) [t]hat the
government established the specifications for ‘Agent Orange’; (2) [t]hat the ‘Agent
Orange’ manufactured by the defendant met the government’s specifications in all
material respects; and (3) [t]hat the government knew as much as or more than the
defendant about the hazards to people that accompanied use of ‘Agent Orange’.”67
Soon the majority of federal district courts adopted some variation of Judge Pratt’s three-
prong test.68 In 1983, the Ninth Circuit reintroduced the Feres-Stencel doctrine into the
analysis, building on the fairness rationale and policy considerations mentioned in that
line of cases. McKay v. Rockwell Intern. Corp., 704 F.2d 444 (9th Cir., 1983)69
consolidated two wrongful death actions arising from accidents involving defective
ejection systems in RA-5C naval aircraft.70 Although the deaths in question were found to
be caused by the ejection systems in the aircraft, the Ninth Circuit reversed the lower
court’s finding that the manufacturer was liable.71
The court observed that “[t]he reasons for applying the government contractor defense to
suppliers of military equipment with design defects approved by the government parallel
those supporting the Feres-Stencel doctrine.”72 The court elaborated with four arguments:
First, allowing liability against contractors in these situations would subvert the doctrine,
the court argued, since military suppliers would simply pass the associated costs through
to the government (this was a variation of earlier justifications).73 Secondly, holding
contractors liable for designs approved by the government would “thrust the judiciary into
67
In re “Agent Orange” Prod. Liab. Litig., 534 F. Supp. 1046, 1055 (E.D.N.Y. 1982).
68
Charles E. Cantu & Randy W. Young set out the following comprehensive list of cases that adopted
some form of the Agent Orange test in The Government Contractor Defense: Breaking the Boyle Barrier,
62 ALB. L. REV. 403, 415, n.72 (1998): “Shaw v. Grumman Aerospace Corp., 778 F.2d 736, 746-47 (11th
Cir. 1985) (denying immunity from liability, under a test slightly different from Agent Orange, to contractor
who exclusively designed a defective airplane stabilizer system); Schoenborn v. Boeing Co., 769 F.2d 115,
121, 125 (3d Cir. 1985) (adopting the Agent Orange test and finding under the third prong that a contractor
would not be held liable for a defect of which the government had knowledge, but nevertheless approved);
Brown v. Caterpillar Tractor Co., 741 F.2d 656, 661-62 (3d Cir. 1984) (remanding for new trial in
accordance with a slightly adapted government contractor defense); …Bynum v. General Motors Corp., 599
F. Supp. 155, 158 (N.D. Miss. 1984), aff’d, 770 F.2d 556 (5th Cir. 1985) (denying recovery to a plaintiff
who was injured in an Army cargo carrier accident because the parties to the litigation had stipulated to all
three elements of the government contractor defense as set forth in Agent Orange); Hubbs v. United Techs.,
574 F. Supp. 96, 98 (E.D. Pa. 1983) (applying the three-prong government contractor defense in a case
involving alleged defective design of a Navy helicopter); Koutsoubos v. Boeing Vertol, 553 F. Supp. 340,
343-44 (E.D. Pa. 1982) (finding that the contractor failed to prove the third element of the Agent Orange
test).”
69
Cert. denied, 464 U.S. 1043 (1984).
70
McKay v. Rockwell Int’l Corp., 704 F.2d 444, 446 (9th Cir.1983).
71
McKay, 704 F.2d at 446.
72
Id., at 449.
73
Id., at 449.
Page 11 of 33
the making of military decision.”74 Third, the court stated that military needs may require
“push[ing] technology towards its limits,” and incurring risks beyond those normally
accepted for consumer goods.75 Lastly, the court observed that the defense provided
military contractors with incentives to work closely with the military in developing
equipment.76
As a result, the Ninth Circuit set forth its own test for determining contractor immunity.
It held that immunity would result where
“(1) the United States is immune from liability under Feres and Stencel, (2) the
supplier proves that the United States established, or approved, reasonably
precise specifications for the allegedly defective military equipment, (3) the
equipment conformed to those specifications, and (4) the supplier warned the
United States about patent errors in the government’s specifications or about
dangers involved in the use of the equipment that were known to the supplier but
not to the United States.”77
Although courts seemed to be building on a shared set of rationales in the adoption of
similar tests, not all the circuits fell in line. For instance, in Shaw v. Grumman Aerospace
Corp., 778 F.2d 736 (11th Cir. 1985), the Eleventh Circuit focused on a different rationale
for what it termed the “military contractor defense.”78 This defense, the court held, was
an affirmative defense entirely separate from the GCD and based not on an extension of
sovereign immunity, but instead rooted in separation of powers doctrine.79 In refusing to
hold the defendant military contractor responsible for the design defect implicated in the
case, the court applied its own rule.
A contractor may escape liability only if it affirmatively proves: (1) that it did not
participate, or participated only minimally, in the design of those products or
parts of products shown to be defective; or (2) that it timely warned the military
of the risks of the design and notified it of alternative designs reasonably known
by the contractor, and that the military, although forewarned, clearly authorized
the contractor to proceed with the dangerous design.80
Subsequent cases applied their own combinations of tests and rationales81 until the
74
McKay, 704 F.2d at 449.
75
Id., at 449-50.
76
Id., at 450.
77
Id., at 451.
78
Shaw v. Grumman Aerospace Corp., 778 F.2d 736, 740 (11th Cir. 1985)
79
“The military contractor defense is available in certain situations not because a contractor is
appropriately held to a reduced standard of care, nor because it is cloaked with sovereign immunity, but
because traditional separation of powers doctrine compels the defense.” Shaw, 778 F.2d at 740.
80
Id., at 746.
81
See, e.g., Tozer v. LTV Corp., 792 F.2d 403, 405-09 (4th Cir. 1986) and Hendrix v. Bell Helicopter
Textron Inc., 634 F. Supp. 1551, 1555 (N.D. Tex. 1986), which both applied the McKay tests, but used the
Shaw separation of powers justification as at least one primary rationale. Hendrix specifically (mis)states
that the McKay test is “based on the recognition that courts are ill-equipped to second guess military
judgments and is rooted in the separation of powers doctrine in the Constitution.” Hendrix, 634 F. Supp at
1555-56. Both Tozer and Hendrix, as well as Bynum v. FMC Corp., and Tillet v. J.I. Case Co., also
invoked the Feres-Stencel doctrine. Tozer, 792 F.2d, at 408; Hendrix, 634 F. Supp at 1555-56; Bynum v.
Page 12 of 33
Supreme Court addressed the issue in Boyle v. United Technology Corp., in 1988.
E. Foundation of The Modern-Day Defense: Boyle v. United Technologies Corp.
In Boyle v United Technologies Corp., 487 US 500 (1988), the Supreme Court resolved
the discrepancies among circuits. Writing for a split court, Justice Scalia stated that
military contractor immunity was not based in the Feres-Stencel doctrine, nor in a vague
appeal to separation of powers, but rather in a specific exception to the FTCA.82
Boyle was a Virginia tort action brought by the estate of a Marine helicopter pilot who
drowned when his escape hatch failed to allow him to escape his downed aircraft.83
Boyle’s estate sued the builders of the helicopter, the Sikorsky Division of United
Technologies Corporation (Sikorsky).84 The Fourth Circuit held Sikorsky to be immune
from suit under the “military contractor defense,”85 citing Tozer v. LTV Corp., 792 F.2d
403 (4th Cir. 1986), in which, earlier that same day, it had recognized the defense.86
Scalia first sought to justify the GCD. Citing to Yearsley, he observed that “[t]he federal
interest justifying [that] holding surely exists as much in procurement contracts as in
performance contracts; we see no basis for a distinction.”87 He elaborated with his own
interpretation of the “pass-through” rationale. “The imposition of liability on Government
contractors will directly affect the terms of Government contracts: either the contractor
will decline to manufacture the design specified by the Government, or it will raise its
price.”88 Scalia asserted that procurement of equipment is an area of “unique federal
concern,”89 concluding that displacement of state tort law was appropriate where a
“significant conflict” exists between a federal or interest and state law.90
Scalia went on to delineate when that interest was at odds with state-imposed duties of
care. The guiding principle could not be the Feres doctrine, he explained, since “the
Feres doctrine, in its application to the present problem, logically produces results that
are in some respects too broad and in some respects too narrow.”91 The doctrine lead to
overly broad results since it would prevent all service-related tort claims against
manufacturers.92 Conversely, it would also be too narrow in that it would not be available
FMC Corp., 770 F.2d 556, 565-566 (CA5 1985); Tillett v. J.I. Case Co., 756 F.2d 591, 596-597 (CA7
1985).
82
Boyle v United Technologies Corp., 487 US 500, 511 (1988).
83
Boyle, 487 US at 502.
84
Id., at 502.
85
Id., at 503.
86
Tozer cited to both the Feres doctrine and Stencel. Tozer v. LTV Corp., 792 F.2d 403, 407-09 (4th
Cir. 1986)
87
Id., at 506.
88
Id., at 507; see also 510-11.
89
Id., at 505-508.
90
Id., at 509.
91
Id., at 511.
92
Id.
Page 13 of 33
for tort claims made by non-service members, i.e. civilians.93
The Court instead decided that the necessary framework for immunity lay instead in an
exception to the FTCA. 28 U.S.C. § 2680(a) exempts from the FTCA claims based on
the exercise of a discretionary function or duty on the part of a federal agency or
employee of the government.94 Scalia wrote that
[T]he selection of the appropriate design for military equipment to be used by our
Armed Forces is assuredly a discretionary function within the meaning of this
provision. It often involves not merely engineering analysis but judgment as to
the balancing of many technical, military, and even social considerations,
including specifically the trade-off between greater safety and greater combat
effectiveness.95
He then set forth the test against which all future immunity claims would be measured.
The resulting federal displacement of state law would be appropriate where:
(1) the United States approved reasonably precise specifications; (2) the
equipment conformed to those specifications; and (3) the supplier warned the
United States about the dangers in the use of the equipment that were known to
the supplier but not to the United States.96
Key is Scalia’s explanation for each prong of the test. The first two, he noted, ensure that
the suit falls within the scope of discretionary function, “that the design feature in
question was considered by a Government officer, and not merely by the contractor
itself.”97 The third prong is necessary to avoid providing contractors with incentives to
hide dangers. If contractors withhold important knowledge of risks to avoid liability, the
ensuing “discretionary decision” made by government is devoid of highly relevant
information.98
Justice Brennan’s dissent (joined by justices Blackmun and Marshall)99 criticized the
Court for stepping outside its bounds, citing a past dissent by Scalia advocating judicial
deferment to the legislature.100 It was an astute observation, given Congress’s decision to
“remain[] silent [on the issue]—and conspicuously so, having resisted a sustained
campaign by Government contractors to legislate for them some defense.”101 Examining
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), Milwaukee v. Illinois, 451 U.S. 304 (1981)
93
Id.
94
Specifically, the exemption pertains to “[a]ny claim … based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a)
95
Boyle, 487 US at 511.
96
Id., at 512. Here the Court explicitly adopts the test set forth by the Ninth Circuit in McCays. See
discussion, supra notes at 69-77, citing McKay v. Rockwell Int’l Corp., 704 F.2d 444, 451 (9th Cir.1983).
97
Boyle, 487 US at 512.
98
Id., at 512-13.
99
Justice Stevens wrote as separate dissent, arguing for deferment to the legislature in deciding “novel
question[s] of policy involve[ing] a balancing of the conflicting interests in the efficient operation of a
massive governmental program and the protection of the rights of the individual.” Boyle, 487 US at 532
(Brennan’s dissent).
100
Id., at 514 (Brennan’s dissent); citing United States v. Johnson, 481 U.S. 681, 703 (1987) (dissenting
opinion of Scalia, J.).
Page 14 of 33
and other cases forming the jurisprudence of federal common law, Brennan observed that
“our power to create federal common law controlling the Federal Government’s
contractual rights and obligations does not translate into a power to prescribe rules that
cover all transactions or contractual relationships collateral to Government contracts.”
Never before had the immunity from suit associated with the FTCA “discretionary
function” exception been approved by the Supreme Court for extension to non-
governmental employees.102 Doing so “skew[ed] the balance” the Court had historically
struck between facilitating effective governmental administration and protecting citizens
from harm.103
Turning to Yearsley (“the sole case cited by the Court immunizing a Government
contractor”), Brennan argued that that case was based on a performance contract with the
government, and as such was legally distinct from a case based on allegations of a design
defect.104
The contractor in Yearsley was following, not formulating, the Government’s
specifications, and (so far as is relevant here) followed them correctly. Had
respondent merely manufactured the … helicopter, following minutely the
Government’s own in-house specifications, it would be analogous to the
contractor in Yearsley, although still not analytically identical since Yearsley
depended upon an actual agency relationship with the Government, which plainly
was never established here. But respondent’s participation in the helicopter’s
design distinguishes this case from Yearsley, which has never been read to
immunize the discretionary acts of those who perform service contracts for the
Government105
It was in response to this observation that Scalia argued that the justification for
performance contracts was equally as valid for procurement contracts.106
As the next section notes, the Court has remained otherwise silent on the distinction
between contract-types, and on the larger question of precisely how broadly the GCD in
Boyle should be interpreted. As a result, Boyle has been invoked to expand the
government contractor defense in the military context far beyond its original design
defect origins.
F. Boyle’s Progeny: The subsequent expansion of the GCD
The rationale in Boyle has served as the legal foundation for the subsequent expansion of
the government contractor defense. Although the Court has yet to revisit its ruling in
101
Boyle, 487 US at 514 (Brennan’s dissent); citing H.R. 4765, 99th Cong., 2d Sess. (1986) (limitations
#n civil liability of Government contractors); S. 2441, 99th Cong., 2d Sess. (1986) (same). See also H.R.
2378, 100th Cong., 1st Sess. (1987) (indemnification of civil liability for Government contractors); H.R.
5883, 98th Cong., 2d Sess. (1984) (same); H.R. 1504, 97th Cong., 1st Sess. (1981) (same); H.R. 5351,
96th Cong., 1st Sess. (1979) (same).
102
Boyle, 487 US at 522-23.
103
Id., at 522-23.
104
Id., at 525.
105
Id., at 525.
106
See Scalia’s discussion of Yearsley, supra at note 90.
Page 15 of 33
Boyle in any substantive manner, some lower courts have expanded the government
contractor defense, in the words of one practitioner, “vertically as well as horizontally.”107
However there is a division among courts as to the precise scope of the defense, and some
circuits, the Ninth Circuit in particular, have a more narrow reading of the GCD and its
applicability. It is also important to note that even if the defense is allowed in a case,
defendants must nevertheless meet the three part test. These issues are addressed in the
following Section.
1. Boyle’s vertical expansion into failure-to-warn and manufacturing claims
The defense has been expanded vertically, beyond design defect cases and into other areas
of product liability.108 This includes allowing the defense in failure-to-warn tort actions109
and manufacturing defect cases.110
In In re Joint E. & S. Dist. N.Y. Asbestos Litig. 897 F2d 626 (2nd Cir.1990), the Second
Circuit followed the Fifth Circuit and other federal courts in being among the first to
extend the GCD to failure-to-warn claims. In that case, workers exposed to asbestos-
based cement while working in Navy shipyards sued the manufacturer of the product,
Eagle-Picher.111 Eagle-Picher raised the Boyle military contractor defense, arguing that
warnings on the product had been created in accordance with Navy specifications, and
that they were therefore immune from suit.112
The Second Circuit disagreed with plaintiffs’ counter-arguments that Boyle was limited to
design defect actions and could not be applied to a failure-to-warn claim.
When a federal contract and state tort law give contrary messages as to the
nature and content of required product warnings, they cause the sort of conflict
Boyle found so detrimental to the federal interest in regulating the liabilities of
military contractors. Just as with conflicting federal and state design
requirements, the existence of conflicting federal and state warning requirements
can undermine the Government’s ability to control military procurement.
Consequently, we follow the other federal courts which already have held that
Boyle may apply to a state law failure-to-warn claim.113
Subsequent courts have followed suit, recognizing failure-to-warn claims as within the
107
Interview with Robert Spohrer, of Spohrer, Wilner, Maxwell & Matthews, the law firm representing
plaintiffs in the McMahon case. See infra at Part II, A.
108
This reasoning has also led courts to extend Boyle to include negligence cases, discussed below in
Part II.
109
In re Joint E. & S. Dist. N.Y. Asbestos Litig. 897 F2d 626, (2nd Cir.1990).
110
Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 801 (5th Cir. 1993) (quoting Harduvel v. Gen.
Dynamics Corp., 878 F.2d 1311, 1317 (11th Cir. 1989).
111
In re Joint E. & S. Dist. N.Y. Asbestos Litig. 897 F2d 626, 627-28 (2nd Cir.1990).
112
In re Joint E. & S. Dist. N.Y. Asbestos Litig. 897 F2d at 627-28.
113
Id., at 630; citing Garner v. Santoro, 865 F.2d 629, 635 (5th Cir. 1989); Niemann v. McDonnell
Douglas Corp., 721 F. Supp. 1019, 1024-25 (S.D. Ill. 1989); Dorse v. Armstrong World Indus., 716 F.
Supp. 589, 590 (S.D. Fla. 1989); Nicholson v. United Technologies Corp., 697 F. Supp. 598, 604 (D.Conn.
1988).
Page 16 of 33
parameters of the FTCA exception cited in Boyle.114
The same result emerged for manufacturing claims: in Bailey v. McDonnell Douglas
Corp., 989 F.2d 794 (5th Cir. 1993) the Fifth Circuit held that the defense could be
applied to a particular claim—including manufacturing defect claims—if the three prong
Boyle test was satisfied, irrespective of the “particular product feature upon which the
claim is based.”115 Bailey v. McDonnell Douglas Corp concerned claims of both
manufacturing and design defects as the basis of an aircraft crash.116 The court held that,
in order to avail itself of the GCD on a summary judgment motion, McDonnell Douglas
had to demonstrate that both defects emerged as result of conformity with government
specifications.117 It found that the GCD was indeed available for manufacturing defects,
but that McDonnell Douglas had not presented evidence satisfying the Boyle test for that
particular claim, and remanded the case accordingly.118 Four years later, the Ninth Circuit
echoed Bailey in its determination that “whether the defense applies to a claim based on
an alleged manufacturing defect depends on whether the particular product at issue was to
be manufactured in conformity with reasonably precise specifications approved by the
government.”119
2. Boyle’s horizontal expansion beyond military contractors & procurement
contracts
Boyle has also been expanded “horizontally” to shield products (and manufacturers)
outside the traditional military context, encompassing items purchased by the military and
resold,120 items provided by subcontractors,121 and nonmilitary contractors.122 This last
category is particularly interesting, because it has been read to include performance
114
See, e.g., Tate v. Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995) (“When the government
exercises its discretion and approves warnings intended for users, it has an interest in insulating its
contractors from state failure to warn tort liability.”); see also Densberger v. United Techs. Corp., 297 F.3d
66, 75-76 (2d Cir. 2002); Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 749-50 (9th Cir. 1997);
Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003-04 (7th Cir. 1996), Perez v. Lockheed Corp. (In re Air
Disaster at Ramstein Air Base), 81 F.3d 570, 576 (5th Cir. 1996).
115
Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 801-802 (5th Cir. 1993).
116
Bailey, 989 F.2d at 796-97.
117
Id., at 799-800.
118
Id., at 799-800.
119
Snell v. Bell Helicopter Textron, 107 F.3d 744, 749 (9th Cir. Cal. 1997) (recognizing manufacturing
claims fell within scope of Boyle test, but holding that in the suit against helicopter manufacturer, “the
record [did] not permit finding as a matter of law that the government approved reasonably precise
specifications for the drive shaft and its components, [and] it necessarily preclude[d] application of the
military contractor defense as a matter of law to Snell’s manufacturing defect claim.”); see also Ammend v.
BioPort, Inc., 322 F. Supp. 2d 848, (W.D. Mich. 2004).
120
Miller v United Technologies Corp. 233 Conn. 732 (1995) (US military contractor- manufacturer of
air craft eligible for Boyle immunity on all three types of product liability claims, even where air craft was
resold to foreign government)
121
Maguire v Hughes Aircraft Corp. 912 F.2d 67 (3d Cir. 1990)
122
See, e.g., Lamb v. Martin Marietta Energy Sys., 835 F. Supp. 959 (W.D. Ky. 1993) (“the Supreme
Court’s rationale for applying the government contractor defense in Boyle is equally applicable in non-
military as well as military settings”); citing See Carley v. Wheeled Coach 991 F.2d 1117, 1119 (3d Cir.
1993).
Page 17 of 33
contracts—services—as within the purview of the GCD. As such, the GCD has come full
circle to include Yearsley-like immunity for services performed in the course of
performance contracts, for both military and non-military contractors alike.123
Boyle’s vague and ill-defined grant of immunity left many courts grappling with the
question of whether or not the GCD it recognized could be applied to nonmilitary
contractors. The courts were split on the issue, as noted in 1993 by the Third Circuit in
Carley v. Wheeled Coach, 991 F.2d 1117 (3rd Cir. 1993):
In Boyle, the Court specifically applied the government contractor defense in the
context of a military procurement contract…The Court, however, did not address
whether the government contractor defense is also available to manufacturers of
nonmilitary products, an issue which has generated a significant split in
authority.124
The court in Carley addressed a manufacturer’s liability in a personal injury action based
on an alleged design defect in an ambulance.125 In deciding that the nonmilitary
contractor / manufacturer was eligible for the GCD, the court focused on two Boyle
rationales. First, it observed that there was a “unique federal interest” in “in all contracts
in which the government procures equipment, not just those with military suppliers.”126
Second, it noted that the justification cited in Boyle was not the decidedly military-
oriented Feres doctrine, but the “discretionary function” exception to the FTCA.127
“Instead of relying on Feres, which applies only to torts arising out of military service, the
Court instead relied on the discretionary function exception of the FTCA, which applies
to government action in both military and nonmilitary matters.”128 The court also noted
123
Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329, 1334 (11th Cir. 2003) (“the government
contractor defense recognized in Boyle is applicable to the service contract between the Army and
DynCorp”).
124
Carley v. Wheeled Coach, 991 F.2d 1117, 1119 (3rd Cir. 1993). The court cited the following cases as
examples of where the GCD was made available to nonmilitary contractors: Boruski v. United States, 803
F.2d 1421, 1430 (7th Cir. 1986); Burgess v. Colorado Serum Co., 772 F.2d 844, 846 (11th Cir. 1985);
Johnson v. Grumman Corp., 806 F. Supp. 212, 217 (W.D. Wis. 1992); Price v. Tempo, Inc., 603 F. Supp.
1359, 1361-62 n.3 (E.D. Pa. 1985); In re Chateaugay Corp., 132 Bankr. 818, 823-27 (Bankr. S.D.N.Y.
1991), rev’d, 146 Bankr. 339 (S.D.N.Y. 1992); Vermeulen v. Superior Court of Alameda County, 204 Cal.
App. 3d 1192 (Cal. Ct. App. 1988); McDermott v. TENDUN Constructors, 511 A.2d 690, 696 (N.J. Super.
Ct. App. Div.), cert. denied, 107 N.J. 43, 526 A.2d 134 (N.J. 1986). Carley v. Wheeled Coach, 991 F.2d
1117, 1119 (3rd Cir. 1993).
It also cited the following cases where the GDC has not been extended to nonmilitary contractors:
In re Hawaii Federal Asbestos Cases, 960 F.2d 806, 810-12 (9th Cir. 1992); Nielsen v. George Diamond
Vogel Paint Co., 892 F.2d 1450, 1452-55 (9th Cir. 1990); In re Chateaugay Corp., 146 Bankr. 339, 348-51
(S.D.N.Y. 1992); Johnston v. United States, 568 F. Supp. 351, 356-58 (D. Kan. 1983); Jenkins v. Whittaker
Corp., 551 F. Supp. 110, 114 (D. Haw. 1982); Pietz v. Orthopedic Equip. Co., 562 So. 2d 152, 155 (Ala.
1989), cert. denied, 498 U.S. 823, 111 S. Ct. 75, 112 L. Ed. 2d 48 (1990); Dorse, 513 So. 2d at 1269;
Reynolds v. Penn Metal Fabricators, Inc., 550 N.Y.S.2d 811, 812 (N.Y. Sup. Ct. 1990); In re New York
City Asbestos Litig., 542 N.Y.S.2d. 118, 121 (N.Y. Sup. Ct. 1989).
Carley v. Wheeled Coach, 991 F.2d 1117, 1119 (3rd Cir. 1993).
125
Carley, 991 F.2d at 1117-18.
126
Id., at 1120.
127
Id., at 1120.
128
Id., at 1121.
Page 18 of 33
the Supreme Court’s own reference to Yearsley, a nonmilitary contractor case,129 and its
belief that the Boyle Courts’ policy reasons also all applied equally to the case at hand
(with the exception of considerations for combat effectiveness).130
For some courts, the same justifications for extending the GCD to nonmilitary contractors
applied to the defense’s extension outside the realm of procurement contracts. In Lamb v.
Martin Marietta Energy Sys., Inc., 835 F. Supp. 959 (W.D. Ky. 1993), the court agreed
with the Third Circuit’s logic in Carley,131 holding that “[s]imilarly, this Court finds no
reason to limit Boyle to procurement contracts, as opposed to performance contracts as is
involved in the case at bar.”132 Quoting Scalia’s position in Boyle that “the federal interest
justifying this holding surely exists as much in procurement contracts as in performance
contracts; we see no basis for a distinction,”133 the Lamb court circled the logic back
around to justify GCD’s for performance contracts.134 Other courts have essentially
followed suit.135
Given the direction of courts’ logic, it should be no surprise that before long military
contractors began to avail themselves of the GCD for performance contracts, also termed
service contracts. In Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329 (11th Cir.
2003), the Eleventh Circuit held that GCD applied to service contracts between the Army
and DynCorp, a military contractor. 136 Dyncorp137 had a service contract with the Army to
maintain its helicopters, and it was sued by two pilots injured in a crash resulting from a
tail fin separation.138 The plaintiffs claimed that DynCorp was negligent in its
maintenance of the helicopter, and DynCorp moved for summary judgment on the basis
of the GCD. 139 DynCorp argued that it satisfied the three part Boyle test in its adherence
to specific Army protocol concerning helicopter maintenance, and that the Army was
aware of the dangers inherent in its maintenance protocol.140 In response to plaintiffs’
arguments that the GCD applies only to design defects, the court stated,
Although Boyle referred specifically to procurement contracts, the analysis it
requires is not designed to promote all-or-nothing rules regarding different
classes of contract. Rather, the question is whether subjecting a contractor to
liability under state tort law would create a significant conflict with a unique
129
Id., at 1120.
130
Carley, 991 F.2d at 1129.
131
Lamb v. Martin Marietta Energy Sys., Inc., 835 F. Supp. 959, 966 (W.D. Ky. 1993).
132
Lamb, 835 F. Supp. at 966 & n.7.
133
Id., at 966 & n.7; citing Boyle, 487 US at 506.
134
Id., at 966 & n.7.
135
See Guillory v. Ree’s Contract Serv., Inc., 872 F. Supp. 344, 346 (S.D. Miss. 1994) (GCD “applies to
performance contracts, not just procurement contracts” in a negligence case involving a nonmilitary
contractor / security provider; see also Crawford v. National Lead Co., 784 F. Supp. 439, 445-46 n.7 (S.D.
Ohio 1989); Richland-Lexington Airport Dist. v. Atlas Prop., Inc., 854 F. Supp. 400, 422-23 (D.S.C. 1994).
136
Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329, 1334 (11th Cir. Ala. 2003)
137
Bell was granted summary judgment in the district court, below. Hudgens, 328 F.3d at 1330 (11th Cir.
2003)
138
Id., at 1330.
139
Id., at 1332.
140
Id., at 1335-37.
Page 19 of 33
federal interest. We would be exceedingly hard-pressed to conclude that the
unique federal interest recognized in Boyle, as well as the potential for significant
conflict with state law, are not likewise manifest in the present case. The
formulation of design specifications and the articulation of maintenance
protocols involve the exercise of the very same discretion to decide how a military
fleet of airworthy craft will be readied. Holding a contractor liable under state
law for conscientiously maintaining military aircraft according to specified
procedures would threaten government officials’ discretion in precisely the same
manner as holding contractors liability for departing from design specifications…
We thus hold that the government contractor defense recognized in Boyle is
applicable to the service contract between the Army and DynCorp.141
The court found that DynCorp satisfied the the defenses three elements and accordingly
affirmed summary judgment on its behalf.142
G. Challenges to raising a Boyle government contractor defense
Not all courts have fallen in line with the jurisprudence espoused by the Eleventh and
Third Circuits. As mentioned above in the discussion concerning nonmilitary contractors,
there is somewhat of a split among courts on the issue of whether or not such defendants
qualify for the GCD.143 The Ninth Circuit, in particular, has adopted a relatively narrow
reading of Boyle, limiting the defense to military contractors and to claims arising from
allegedly defective military equipment. Even in Circuits that have adopted a more
expansive reading of Boyle, merely being eligible to qualify for the defense is not enough
to obtain immunity from suit—defendants nonetheless still carry the burden of proving
that they meet the three conditions set forth in the Boyle test.
1. Limiting Boyle—the Ninth Circuit’s more restricted application of the GCD
Among those circuits to take a more restricted view on the scope of the GCD, the Ninth
Circuit is possibly the most stringent in limiting the defense. In fact, the Ninth Circuit
does not even call the defense the “government contractor defense,” rather it is called the
“military contractor defense.”144 The distinction is more than simple semantics, since “[i]
n the Ninth Circuit [the defense] is only available to contractors who design and
manufacture military equipment”145—as noted above, it is not available to nonmilitary
141
Id., at 1334.
142
Id., at 1345.
143
See discussion supra note 125.
144
Snell v. Bell Helicopter Textron, 107 F.3d 744, 746 (9th Cir. 1997)
145
Snell, 107 F.3d at 746, citing Nielsen v. George Diamond Vogel Paint Co., 892 F.2d 1450 (9th Cir.
1990). There is some disagreement about the applicability of the defense to failure-to-warn claims, but
those would also appear to be included. See, e.g., Nguyen v. Allied Signal, 1998 U.S. Dist. LEXIS 15517,
*5 (N.D. Cal. 1998) (“The Ninth Circuit noted that the government had no contractual requirements
preventing the placement of warnings on the defendants’ products. Therefore, in a failure to warn case, “the
military contractor defense would . . . be no defense at all”), citing In re Hawaii Federal Asbestos Cases,
960 F.2d 806, 813 (9th Cir. 1992); but see Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 749-50 (9th
Cir. 1997) (evaluating failure-to-warn claim in wrongful death action arising out of helicopter crash); Butler
v. Ingalls Shipbuilding, 89 F.3d 582 (9th Cir. 1996) (personal injury case alleging, among other claims,
failure-to-warn was subject to GCD, but only where, in making decision whether or not to provide warning,
Page 20 of 33
contractors. Furthermore, it can only be applied to military equipment, as the Ninth
Circuit stated in In re Hawaii Federal Asbestos Cases, 960 F.2d 806 (9th Cir. 1992):
[C]oncerns [raised in Boyle] do not exist in respect to products readily available
on the commercial market. The fact that the military may order such products
does not make them ‘military equipment.’ The products have not been developed
on the basis of involved judgments made by the military but in response to the
broader needs and desires of end-users in the private sector…the military
contractor defense does not apply to ‘an ordinary consumer product purchased
by the armed forces.’146
In In re Hawaii Federal Asbestos Cases, the court refused to consider the GCD for an
asbestos insulation manufacturer, where the plaintiffs were the estates of deceased Naval
workers.147 In an earlier case, Nielsen v. George Diamond Vogel Paint Co., 892 F.2d 1450
(9th cir. 1990), the court similarly refused to extend the defense to a paint manufacturer,
where the product was not designed for a special military purpose.148 While the “military
equipment” test may not be the highest hurdle,149 it is nonetheless a standard defendants
must meet before attempting to raise the GCD in the Ninth Circuit.
It is also indicative of the Ninth Circuit’s alternative interpretation of Boyle. As one
district court in Washington recently described it in Westmiller v. IMO Indus., 2005 U.S.
Dist. LEXIS 29371 (W.D. Wash. 2005),
In this circuit, the government contractor defense applies to displace state tort
law only “when the Government, making a discretionary, safety-related military
procurement decision contrary to the requirements of state law, incorporates this
decision into a military contractor’s contractual obligations, thereby limiting the
contractor’s ability to accommodate safety in a different fashion.” In other words,
“stripped to its essentials, the military contractor’s defense under Boyle is to
claim, The Government made me do it.”150
This approach to the defense also raises the bar for defendants who wish to remove cases
filed in state court based on the federal officer removal statute.151 The Westmiller court,
for instance, remanded the case back to state court after it found that defendant asbestos
manufacturer was “acting in compliance with ‘reasonably precise specifications’ imposed on [it] by the
United States.”) (internal cites omitted).
146
In re Hawaii Federal Asbestos Cases, 960 F.2d 806, 811-812 (9th Cir. 1992)
147
In re Hawaii Federal Asbestos Cases, 960 F.2d at 808, 811-812.
148
Nielsen v. George Diamond Vogel Paint Co., 892 F.2d 1450, 1453 (9th Cir. 1990)
149
Butler v. Ingalls Shipbuilding, 89 F.3d 582 584 (9th Cir. 1996). While the court in Butler held that an
accommodation ladder qualified as military equipment, it nonetheless reiterated the standard: we have little
difficulty characterizing #he accommodation ladder in issue as “military equipment.” In McKay v.
Rockwell Int’l Corp., 704 F.2d 444, 451 (9th Cir. 1983), this Court observed that the line lay “somewhere
between an ordinary consumer product purchased by the armed forces – a can of beans, for example – and
the escape system of a Navy RA-5C reconnaissance aircraft.” We believe the accommodation ladder falls
within the term’s meaning while the can of beans does not. It is used by sailors, marines, or other naval
personnel to access other ships, docks, or piers
150
Westmiller v. IMO Indus., 2005 U.S. Dist. LEXIS 29371, *7-8 (W.D. Wash. 2005).
151
The federal officer removal statute provides for removal by “the United States or any agency thereof or
an officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an
official or individual capacity for any act under color of such office.” 28 U.S.C. § 1442(a)(1). It can be
used to remove a case based on an asserted defense. Id.
Page 21 of 33
manufacturer failed the first prong of the Boyle test.152
2. Hurdles to passing Boyle’s three prong test—where plaintiffs have had the most
success fighting the GCD
Even where the defense is allowed, courts are mindful that it is the defendant’s burden to
prove that it meets the three prong Boyle test. To re-cap, the test asks defendants to prove
three conditions:
(1) the United States approved reasonably precise specifications;
(2) the equipment conformed to those specifications; and
(3) the supplier warned the United States about the dangers in the use of the
equipment that were known to the supplier but not to the United States.153
Legal commentators have observed that the first prong is where most plaintiffs stand the
best chance of overcoming defendants’ assertions of the defense.154 Boyle itself excludes
cases where the government orders stock from a manufacturer, with no “significant
interest” in the design defect alleged by plaintiffs.155 Subsequent courts have interpreted
the “reasonably precise specifications” requirement to mandate an inquiry into whether or
not the government “adequately exercised its discretion and ‘thereby limited the
contractor’s ability to accommodate safety in a different fashion.’”156 The resulting
inquiry is meant to exclude cases where the government “merely ‘rubber stamps’ a
design.”157 A “‘continuous back and forth’ review process” concerning the alleged design
defect satisfied this test.158
As a result, Charles E. Cantu and Randy W. Young, in The Government Contractor
Defense: Breaking the Boyle Barrier, argue that
If the surrounding facts permit, the plaintiff’s best option is to show that the
government’s approval involved little substantive review and was merely a
“rubber stamp.” The discovery process will quickly show whether the government
was intimately involved in the design process of the product in question. If the
government’s involvement was minimal, the plaintiff has a strong weapon with
which to resist the Boyle defense. 159
They also note the difficulty in challenging the GCD on prongs two and three, if prong
152
Westmiller, 2005 U.S. Dist. LEXIS 29371, at *7-8 (Remanding failure-to-warn product liability case
based on asbestos related death back to state court because federal officer removal was not warranted. By
failing to pass the first prong of the Boyle test, defendant had not established a colorable federal defense.)
153
Boyle, 487 U.S. at 512.
154
Charles E. Cantu & Randy W. Young, The Government Contractor Defense: Breaking the Boyle
Barrier, 62 ALB. L. REV. 403, 412 (1998).
155
Boyle, 487 U.S. at 509.
156
Lewis v. Babcock Indus., Inc., 985 F.2d 83, 87 (2nd Cir. 1993).
157
Lewis, 985 F.2d at 87; citing Trevino v. General Dynamics Corp., 865 F.2d 1474, 1480, 1486 (5th Cir.
1989).
158
Tate v. Boeing Helicopters, 55 F.3d 1150, 1154 (6th Cir. 1995); citing Harduvel v. General Dynamics
Corp., 878 F.2d 1311, 1320 (11th Cir. 1989) (quoting Koutsoubos v. Boeing Vertol, 755 F.2d 352, 355 (3d
Cir. 1985).
159
Charles E. Cantu & Randy W. Young, The Government Contractor Defense: Breaking the Boyle
Barrier, 62 ALB. L. REV. 403, 435 (1998).
Page 22 of 33
one cannot be proven: “because most of the evidence used in analyzing Boyle’s first
element is relevant to the second and third elements, a plaintiff who cannot disprove the
first prong will have difficulties defeating the contractor through the second or third
prongs of the test.”
In Trevino v. General Dynamics Corp., 865 F.2d 1474,(5th Cir. 1989), the Fifth Circuit
held that final approval of a design, as indicated by a federal employee’s signature on an
“approval line” on a contractor’s designs, was not sufficient to pass the first prong of the
Boyle test.160 Trevino was a products liability action brought by the families of five Navy
divers killed in a Navy submarine diving chamber.161 Defendant General Dynamics Corp.
was the designer of the chamber, and it attempted to raise the then-newly minted Boyle
GCD in response to plaintiffs’ design defect claims.162 The court stated that allowing a
cursory signature on an approval line to pass the first prong of the Boyle test would
encourage both the contractor and the government to circumvent the purposes of the
test.163
Such a provision likely would be agreed to by the government because it would
come at absolutely no cost. Actual review and evaluation of design decisions,
however, does come at a cost to the government. That is why the government must
decide whether to exercise the design discretion itself or to delegate that
discretion to the government contractor.164
“Rubber stamping” designs by the government does not equate to an exercise of its
discretionary function as conceived of by Boyle.
Densberger v. United Techs. Corp., 297 F.3d 66 (2d Cir. 2002), involved a helicopter
crash resulting from a loss in control during a landing, killing four officers and injuring
two others.165 In this case the court was reluctant to consider the GCD at all, noting that
defendants were attempting to use it to absolve themselves of responsibility to warn the
government of a danger.166 However, even if it could be applied, the Second Circuit held
that defendant’s arguments were “meritless,” regardless, because defendants could not
prove the first condition necessary for the defense:
[F]or the government contractor defense to succeed, the contractor must show
“that the Government itself ‘dictated’ the content of the warnings meant to
accompany the product,” and further, “that the Government controlled or limited
the ability of contractors . . . themselves to warn those who would come into
contact with its product.” Unless the defendant demonstrated that control, the
defense would not preclude recovery.167
The Second Circuit thus denied defendant’s motion for a judgment as a matter of law.168
160
Trevino v. General Dynamics Corp., 865 F.2d 1474, 1480 (5th Cir. 1989)
161
Trevino, 865 F.2d at 1476.
162
Id., at 1478.
163
Id., at 1478.
164
Id., at 1480, n.5 .
165
Densberger, 297 F.3d at 69.
166
Id., at 75 .
167
Id., at 75 .
168
Id., at 75 .
Page 23 of 33
Finally, another (very) recent case also touches on the level of government discretion
defendants’ must prove in passing the Boyle test. In Ruth v. A.O. Smith Corp., 2005 U.S.
Dist. LEXIS 23235 (N.D. Ohio 2005), the court ruled against defendant’s motion for
summary judgment based on the GCD, despite what it called the “relatively lenient case
law in this Circuit.”169 Ruth addresses tort claims (including product liability claims)
arising from neurological injuries sustained by welders due to welding fumes.170 Despite
the court’s own lenient standard for consideration of the GCD (it held that the GCD was
available to defendant manufacturer whether or not the plaintiff used the product—
welding rods—on military or civilian vessels),171 the court refused to grant summary
judgment where the first (and, indeed, third) elements in Boyle were not clearly satisfied.
[R]easonable jurors could find in favor of either the plaintiffs or the defendants
with respect to the level of discretion exercised by the Navy in the formulation and
approval of the relevant warnings, and also on the question of whether the
defendants warned the Navy of information in their possession about which the
Navy was unaware.172
The outcome of the plaintiff’s claims are still pending, but they will, as a result, proceed
to trial.
As these cases hopefully show, the burden posed by the GCD is a high one, but it is not
impossible to defeat. Unfortunately, courts are quite divided as to the Boyle Court’s
intended scope of the defense, and as such plaintiffs in certain federal circuits are bound
to fare better than others. Yet cases continue to be filed against military contractors,
despite these challenges. Part II summarizes some currently pending law suits,
considering their claims and the role of the GCD in defendants’ litigation strategies.
H. Conclusion to Part I
Despite the considerable amount of activity by lower courts contemplating the GCD, the
Supreme Court has not acted to delineate the boundaries of the defense. Post-Boyle
references to the GCD by the Court instead involve general observations that “[w]here the
government has directed a contractor to do the very thing that is the subject of the claim,
we have recognized this as a special circumstance where the contractor may assert a
defense.”173 As such, it is impossible to determine the Court’s intended scope in Boyle.
However, even where Boyle is not cited to directly, the framework established by Boyle’s
rationale—applying FTCA exceptions to immunize contractors from liability—continues
to be utilized. This is despite the fact that many of the pending, high-profile cases against
PMFs are far removed from the type of claim that gave rise to Boyle: these current suits
allege torture, civil rights abuses, and reckless operation of aircraft, to name a few.
169
Ruth v. A.O. Smith Corp., 2005 U.S. Dist. LEXIS 23235, *25 (N.D. Ohio 2005).
170
Ruth, 2005 U.S. Dist. LEXIS 17667, at 24.
171
Id., at *27.
172
Id., at *27.
173
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74, n.6 (2001) (finding the defense not available in the case
at hand); citing Boyle, 487 U.S. 500.
Page 24 of 33
Page 25 of 33II. Select Summary of Currently Pending Cases Against Military Contractors
Part II gives a brief overview of some cases currently pending against military
contractors. The focus is tortious liability arising out of contractors’ misconduct /
negligence in Iraq. While the Boyle defense is not the only one raised by defendants, it
does feature prominently in most of their litigation strategies. Additionally, Boyle-like
analysis is also employed by defendants, where they attempt to apply other FTCA
exceptions to their cases.
The cases have been broken down into three categories: suits by soldiers (or their estates)
against PMFs;174 suits by contractors (or their estates) suing their employer PMF; and suits
by non-military, non-contractor civilians (or their estates) suing PMFs. The following
sections examine one example from each category, followed by references to other,
similar cases.
A. Soldiers (or their estates) suing contractors / PMFs: McMahon et al. v.
Presidential Airways Inc. et al 175
Three soldier’s widows have brought a wrongful death action against the PMF
Presidential Airways, alleging that its poorly equipped airplane and unprepared and
inexperienced flight crew are responsible for an aviation accident in the mountains of
Afghanistan.176 Five of the six individuals on board (including two of the soldiers) were
killed instantly, while another survived for several hours—even retrieving survival gear—
before succumbing to his wounds. Plaintiffs filed their Complaint in state court on June
10, 2005,177 and asserted claims pursuant to the Florida Wrongful Death Act, § 768.16, et.
seq., Fla. Stat.178 Defendants filed a notice of removal on July 6, removing the case to the
US District Court for the Middle District of Florida. Discovery is proceeding while the
parties await the court’s ruling on Plaintiffs’ motion to remand the case back to state
court. The GCD figures prominently in both parties arguments on the matter.
Defendant’s Memorandum in Opposition to Plaintiff’s Motion To Remand argues that
removal was proper because the court has federal question jurisdiction.179 The three
grounds cited for this jurisdiction are federal officer removal, complete preemption
doctrine, and the argument that plaintiffs’ claims turn on substantial questions of federal
174
Henceforth, the corporations conducting military contract work will be referred to in the more modern
term, “private military firm” (PMF). Their employees will be referred to as “military contractors.”
175
McMahon et al. v. Presidential Airways Inc. et al., No. 05CV11601, complaint filed (Fla. Cir. Ct.,
Brevard County June 10, 2005). Currently cited as McMahon et al. v. Presidential Airways Inc. et al, Case
No.: 6:05-cv-1002-ORL-28-JGG (M.D. Fla.).
176
Pls.’ Compl. at ¶ ¶ 33, 39, 40-42, McMahon et al. v. Presidential Airways Inc. et al, Case No.: 6:05-cv-
1002-ORL-28-JGG (M.D. Fla.).
177
McMahon et al. v. Presidential Airways Inc. et al, Case No.: 6:05-cv-1002-ORL-28-JGG (M.D. Fla.)
178
Contractors Sued Over Afghanistan Plan Crash, 23 No. 11 Andrews Aviation Litig. Rep. 13 (July 19,
2005).
179
Defs.’ Mem. In Opp’n to Pls.’ Mot. to Remand at 7, McMahon et al. v. Presidential Airways Inc. et al,
Case No.: 6:05-cv-1002-ORL-28-JGG (M.D. Fla.).
Page 26 of 33
law.180 As discussed previously,181 the federal officer removal statute provides for removal
by “the United States or any agency thereof or an officer (or any person acting under that
officer) of the United States or of any agency thereof, sued in an official or individual
capacity for any act under color of such office.”182 It can be used to remove a case based
on an asserted defense, and Defendants claim that they have “asserted plausible federal
defenses, including the Government Contractor Defense (“GCD”), the Combat and
Foreign Country Exceptions to the FTCA (28 U.S.C. § 2680(j), (k)), and the Feres
Doctrine (as announced by Feres v. United States, 340 U.S. 135 (1950), and its progeny).”
183
Plaintiffs argued in their Motion to Remand that, among other defects, Defendants failed
to meet any of the three Boyle conditions necessary to raise the GCD. Citing the
modified test for service contracts articulated by the Eleventh Circuit in Hudgens v. Bell
Helicopters, 328 F.3d 1329 (11th Cir. 2003),184 Plaintiffs observed that Defendants failed
all three elements of the test, but especially the second prong:
The Complaint alleges, among other things, that the Defendants breached their
duty because they did not follow the proper procedure outlined in 32 C.F.R. § 861
(2005) (DoD Commercial Air Transportation Quality and Safety Review
Program). (Complaint ¶ 39). This contradicts the Defendants’ unsupported
assertion in their Motion to Remand ¶ 29 that they complied with the reasonably
precise specifications of the Government.185
Defendants replied by briefly elaborating that they had “made out a plausible claim” to
the GCD in their adherence to government specifications, and that, in any event, the issue
was not whether or not they would ultimately prevail on the GCD—it was merely that
they had plausibly asserted the defense.186
The legacy of the GCD spills over into other defenses, as well. In their arguments that
Plaintiffs’ claims are barred by the Combat and Foreign Country Exceptions to the FTCA
(28 U.S.C. § 2680(j), (k)), Defendants rely heavily on the only two cases to have ever
extended the Boyle analysis beyond the Discretionary Function Exception. Pointing out
that the Combat Exception “has been applied to immunize government contractors whose
products have caused injury in combat,” Defendants cite Koohi v. United States, 976 F.2d
180
Defs.’ Mem. In Opp’n to Pls.’ Mot. to Remand at 8, 13, 14, McMahon et al. v. Presidential Airways
Inc. et al, Case No.: 6:05-cv-1002-ORL-28-JGG (M.D. Fla.).
181
See supra note 152.
182
28 U.S.C. § 1442(a)(1).
183
Defs.’ Mem. In Opp’n to Pls.’ Mot. to Remand at 11, McMahon et al. v. Presidential Airways Inc. et al,
Case No.: 6:05-cv-1002-ORL-28-JGG (M.D. Fla.).
184
“The Court held that, in order to benefit from the government contractor defense, a contractor must
prove (1) the United States approved reasonably precise procedures; (2) the contractor’s performance
conformed to those procedures, and (3) the contractor warned the United States about dangers arising out of
compliance with those procedures that were known to the contractor but not the United States.” Pls.’ Mot.
to Remand, at ¶ 37, McMahon et al. v. Presidential Airways Inc. et al, Case No.: 6:05-cv-1002-ORL-28-
JGG (M.D. Fla.); citing Hudgens, 328 F.3d at 1335.
185
Pls.’ Mot. to Remand, at ¶ 39, McMahon et al. v. Presidential Airways Inc. et al, Case No.: 6:05-cv-
1002-ORL-28-JGG (M.D. Fla.).
186
Defs.’ Mem. In Opp’n to Pls.’ Mot. to Remand at 11, McMahon et al. v. Presidential Airways Inc. et al,
Case No.: 6:05-cv-1002-ORL-28-JGG (M.D. Fla.).
Page 27 of 33
1328, 1336 (9th Cir. 1992) and Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486, 1493
(C.D. Cal. 1993), claiming that they will seek its application to the aviation services in
question in McMahon.187
Finally, Boyle reasoning also emerges in Defendant’s argument that Plaintiffs’ claims are
preempted by federal law. Here, Defendants turn to Boyle’s interpretation of the FTCA:
Congress has shown its intent that a case such as this be litigated in federal court
through its sweeping legislation respecting both aviation and military operations
and its provision for exclusive federal jurisdiction over tort claims against the
United States. 28 U.S.C. § 1346(b)(1). The Supreme Court has by analogy applied
provisions of the FTCA to government contractors. See Boyle, 487 U.S. 500
(applying FTCA’s Discretionary Function Exception to government contractor).188
Thus the reach of Boyle is being applied far beyond its intended application—the GCD
based on the Discretionary Function Exception to the FTCA. It remains to be seen how
the court will rule on the matter, although at least one court has already considered similar
arguments—discussed below.
Two other cases have emerged in this category: Lessin v. Kellogg Brown & Root, Case
No. H-05-1853 (S.D.TX filed May 23, 2005) and Webster, et al v. Halliburton Co.,
Kellogg Brown & Root Services, Inc., and Service Employees International, Inc., Case
No. H-05-3030 (S.D. TX filed May 26, 2005). Both of these cases involve an automobile
collision in Iraq, where plaintiffs allege negligence on behalf of KBR employees driving a
convoy. KBR filed Motions to Dismiss in both cases. In its Notice of Removal for the
Webster matter, KBR cited the following defenses: “government contractor defense, the
‘combatant activities’ exception to the FTCA, the political question doctrine, the state
secrets doctrine, and the Defense Productions Act of 1950”189 While Lessin has been
stayed, it appears that Webster is moving forward—a motion hearing has been set for
January 20, 2006.
B. Contractors (or their estates) suing PMFs: Richard P. Nordan v. Blackwater
Security Consulting, LLC 190
Perhaps one of the most high profile cases involves the suit arising from the March 21,
2004 murder and mutilation of four military contractors in Fallujah, Iraq.191 This case is
interesting not only because it deals with highly publicized events, but also because it
presents a prime example of defendants (unsuccessfully) attempting to extend Boyle
reasoning to avoid liability.
187
Defs.’ Mem. In Opp’n to Pls.’ Mot. to Remand at 12, McMahon et al. v. Presidential Airways Inc. et al,
Case No.: 6:05-cv-1002-ORL-28-JGG (M.D. Fla.).
188
Defs.’ Mem. In Opp’n to Pls.’ Mot. to Remand at 13-14, McMahon et al. v. Presidential Airways Inc. et
al, Case No.: 6:05-cv-1002-ORL-28-JGG (M.D. Fla.).
189
Def.’s Notice of Removal, at ¶ 19, Webster, et al v. Halliburton Co., Kellogg Brown & Root Services,
Inc., and Service Employees International, Inc., Case No. H-05-3030 (S.D. TX filed May 26, 2005):
190
Richard P. Nordan v. Blackwater Security Consulting, LLC, 382 F.Supp.2d 801 (E.D.N.C.,2005)
191
Pls.’ Compl. at ¶ 12, Nordan v. Blackwater Security Consulting, LLC, 382 F.Supp.2d 801 (E.D.N.C.
2005).
Page 28 of 33
On January 5, 2005, the estates for the four deceased men brought suit against the
contractors employer, a PMF called Blackwater Security Consulting, alleging wrongful
death and fraud.192 More specifically, Plaintiffs claimed that the deaths were a result of a
“deliberate and reckless disregard for the health and safety” of the contractors, evinced by
the fact that they were sent into a high risk area without many of the security precautions
promised them in their employment contracts.193 When the ill-prepared contractors drove
into a hostile region, they were ambushed by insurgents, shot at close range, and “[t]heir
bodies were pulled into the streets, burned and their charred remains were beaten and
dismembered. Ultimately, two of the burnt bodies were strung up from a bridge over the
Euphrates River for all of the world to see.”194
The case was removed by Defendants, who argued that a workers compensation scheme
called the Defense Base Act preempted Plaintiffs’ claims, and, alternatively, that the case
raised a “unique federal interest” mandating federal jurisdiction.195 In formulating the
second argument, Defendants relied heavily on Boyle’s discussion of “unique federal
interests” and a subsequent case, Caudill v. Blue Cross and Blue Shield of North
Carolina, 999 F.2d 74 (4th Cir.1993), which (controversially) extended Boyle’s analysis
to justify removal of cases based on federal employees’ health insurance benefits.196
Defendants stated that the government had a “unique federal interest” regarding remedies
available to contractors supporting government efforts in war-zones, and that that interest
conflicted with Plaintiffs’ efforts to litigate their case in state court.197 Interestingly,
Defendants failed to raise the standard GCD at all in their Opposition to Defendant’s
Motion to Remand and in their own Motion to Dismiss.
The court disagreed with Defendants on both accounts. Speaking to their argument
concerning unique federal interests, the court pointed out that the case did not pass the
test established in Caudill, because it did not involve the direct interpretation of a federal
contract, “such that ‘federal common law’ supplants state law.”198 The asserted federal
interest in remedies dealt with the Defense Base Act,
which is not a federal contract, but rather a federal statute. While there is no
doubt that there exists a federal interest in uniform application of the DBA, this
interest is not sufficient to provide removal jurisdiction.199
The court remanded the case back to state court, but Defendants subsequently filed a writ
192
Pls.’ Compl. at 21, 24, Nordan v. Blackwater Security Consulting, LLC, 382 F.Supp.2d 801
(E.D.N.C.,2005).
193
Pls.’ Compl. at¶ 69, Nordan v. Blackwater Security Consulting, LLC, 382 F.Supp.2d 801
(E.D.N.C.,2005).
194
Pls.’ Compl. at¶ 61, Nordan v. Blackwater Security Consulting, LLC, 382 F.Supp.2d 801
(E.D.N.C.,2005).
195
Blackwater Def’s Mem. in Opp. to Remand, p. 17, Nordan v. Blackwater Security Consulting, LLC, 382
F.Supp.2d 801 (E.D.N.C.,2005).
196
Nordan v. Blackwater Security Consulting, LLC, 382 F.Supp.2d 801 (E.D.N.C.,2005) (discussing
Defendant’s arguments and reliance on Cuadill).
197
Blackwater Def’s Mem. in Opp. to Remand, Part A & B, Nordan v. Blackwater Security Consulting,
LLC, 382 F.Supp.2d 801 (E.D.N.C.,2005).
198
Nordan v. Blackwater Security Consulting, LLC, 382 F.Supp.2d 801, 813 (E.D.N.C.,2005); citing
Caudill, 999 F.2d at 77.
199
Nordan v. Blackwater Security Consulting, LLC, 382 F.Supp.2d 801, 813 (E.D.N.C.,2005).
Page 29 of 33
of mandamus with the Court of Appeals, as well as a regular appeal to the Fourth Circuit.
In the Appellate Brief, Defendants slightly switched tact, arguing that the case deserved to
be removed under the Federal Officer Removal Statute.200 And while they did not make a
straightforward appeal to the GCD, they did argue for immunity for “battlefield
casualties” as the logical consequence of a combination of separation of powers doctrine
and the political question doctrine, citing both Feres and Boyle.201
Plaintiffs attacked the appeal on several grounds, including the fact that Defendants had
switched the basis for removal after the district court’s decision. The court is set to rule
on the matter in January, 2005.
Two other cases, Fisher v. Halliburton, 390 F.Supp.2d 610 (S.D. TX, 2005) and Johnson
v. Halliburton et al., No: EDCV05-265 (C.D. Cal. filed Mar. 29, 2005) also involve suits
brought on behalf of contractors against their employees. As with the automobile
accident case discussed in Part 1, these cases also both center on the same event: alleged
use of convoy drivers as a decoy for another convoy in Iraq, which resulted in the deaths
of at least six drivers, and injuries to eleven others.202 Defendants in Fisher removed the
case to federal district court, citing both the Federal Officer Removal Statute and federal
question jurisdiction.203 For its colorable defense, it cited both the Defense Base Act (as
in Nordan) as well as the Combatant Activities Exception to the FTCA and the GCD
(arguing that the government exercised detailed control over the convoys).204 These
arguments were repeated in the motion to dismiss.205 However, the court in Fisher denied
Defendant’s motion, observing that the second defense, the Combatant Activities
Exception, relied on a Ninth Circuit case cited only once, by a district court in
California.206 It also refused to extend the Ninth Circuit’s application of the Combatant
Activities Exception to cases beyond product liability claims.207 It concluded that
Plaintiffs’ claims in this case do not involve any allegation that Defendants
supplied equipment, defective or otherwise, to the United States military. The
Court concludes that extension of the government contractor defense beyond its
current boundaries is unwarranted and the FTCA does not bar Plaintiffs’
claims.208
This conclusion is welcomed by many of the plaintiffs examined here, as it clearly strikes
down an expansion of Boyle heavily cited by many Defendants.
C. Civilians (or their estates) suing contractors / PMFs: The Abu Ghraib Cases
200
Appellants Opening Brief at 12-13, Nordan v. Blackwater Security Consulting, LLC, No. 05-2033 and
05-2034 (4th Cir. filed Oct. 31, 2005).
201
Appellants Opening Brief at 29, Nordan v. Blackwater Security Consulting, LLC, No. 05-2033 and 05-
2034 (4th Cir. filed Oct. 31, 2005).
202
Pls.’ Complaint, at ¶ ¶ 48-65, Fisher v. Halliburton, 390 F.Supp.2d 610 (S.D. TX, 2005).
203
Def.’s Notice of Removal at ¶ 8, Fisher v. Halliburton, 390 F.Supp.2d 610 (S.D. TX, 2005).
204
Def.’s Notice of Removal at ¶ 31, Fisher v. Halliburton, 390 F.Supp.2d 610 (S.D. TX, 2005).
205
Def.’s Mot. to Dismiss, at 8-9, Fisher v. Halliburton, 390 F.Supp.2d 610 (S.D. TX, 2005).
206
Fisher v. Halliburton, 390 F.Supp.2d 610, 615 (S.D. TX, 2005).
207
Id., at 615-16.
208
Id., at 616.
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This category has perhaps the two most prominent cases—they consist of causes of action
rooted in the Abu Ghraib torture scandal. Ibrahim v. Titan Corp. 391 F.Supp.2d 10
(D.D.C. Aug 12, 2005) and Saleh v. Titan Corp., 361 F.Supp.2d 1152, (S.D.Cal. Mar 21,
2005) are both brought by plaintiffs who were detained in the infamous prison or, in the
case of deceased detainees, by their estates. Because Ibrahim is farther along in the
litigation, it will be the primary focus of this section.
In Ibrahim, plaintiffs are suing two PMFs, CACI Premier Technology, Inc. and Titan
Corp., that provided interrogation services at the Abu Ghraib prison.209 Plaintiffs initially
alleged a broad range of claims, from common law torts such as assault and battery and
wrongful death, to violations of RICO.210 Defendants filed a motion to dismiss, arguing
that Plaintiffs lacked jurisdiction, that their claims presented non-justiciable political
questions, and that they were preempted by the GCD.211 The court dismissed many of
Plaintiffs’ claims, but retained the common law tort claims, noting that “Plaintiffs’
allegations describe conduct that is abhorrent to civilized people, and surely actionable
under a number of common law theories.”212
In explaining its ruling, the court flatly rejected Defendants’ argument that “plaintiffs’
claims are non-justiciable because they implicate political questions.”213 After finding that
Defendants had failed to meet the factors set forth in Baker v. Carr, 369 U.S. 186
(1962),214 it examined separation of powers arguments, including those set forth in Koohi
v. United States, 976 F.2d 1328 (9th Cir.1992). Koohi was the case that radically
extended Boyle to an entirely new FTCA exception, the Combatant Activities
Exception.215 It is also the case relied on by virtually every PMF currently in litigation
over misconduct undertaken in Iraq or Afghanistan. So the court’s statement that “[t]he
209
Pls.’ Sec. Amend. Complaint, at ¶ 9-14, Ibrahim v. Titan Corp. 391 F.Supp.2d 10 (D.D.C. 2005).
210
Ibrahim v. Titan Corp. 391 F.Supp.2d 10, 12 (D.D.C. 2005). The court gives a summary of the
allegations and the claims arising from them:
Plaintiffs’ allegations are broad and serious. They assert that defendants and/or their agents
tortured one or more of them by: beating them; depriving them of food and water; subjecting them
to long periods of excessive noise; forcing them to be naked for prolonged periods; holding a
pistol (which turned out to be unloaded) to the head of one of them and pulling the trigger;
threatening to attack them with dogs; exposing them to cold for prolonged periods; urinating on
them; depriving them of sleep; making them listen to loud music; photographing them while naked;
forcing them to witness the abuse of other prisoners, including rape, sexual abuse, beatings and
attacks by dogs; gouging out an eye; breaking a leg; electrocuting one of them; spearing one of
them; forcing one of them to wear women’s underwear over his head; having women #oldiers order
one of them to take off his clothes and then beating him when he refused to do so; forbidding one
of them to pray, withholding food during Ramadan, and otherwise ridiculing and mistreating him
for his religious beliefs; and falsely telling one of them that his family members had been killed.
Plaintiffs assert claims under the Alien Tort Statute, RICO, government contracting laws, and the
common law of assault and battery, wrongful death, false imprisonment, intentional infliction of
emotional distress, conversion, and negligence.
Id.
211
Ibrahim, 391 F.Supp.2d at 13.
212
Id., at 15.
213
Id.
214
Id. (articulating six Baker tests), citing Baker v. Carr, 369 U.S. 186, 217 (1962).
Page 31 of 33
Constitution’s allocation of war powers to the President and Congress does not exclude
the courts from every dispute that can arguably be connected to ‘combat,’”216 is useful to
plaintiffs in the other cases mentioned in this Section, as well. The court went on to
distinguish the case at hand from those that did raise non-justiciable questions: “An
action for damages arising from the acts of private contractors and not seeking injunctive
relief does not involve the courts in ‘overseeing the conduct of foreign policy or the use
and disposition of military power.’”217
The court also turned to the GCD itself, albeit once again in the context of Koohi’s
extension of immunity to combatant activities. After reviewing the Ninth Circuit’s
justifications for immunity rooted in that FTCA exception, the court recognized the extent
of the expansion Defendants advocated:
Defendants want me to expand Boyle’s preemption analysis beyond Koohi’s
negligence/product liability context to automatically preempt any claims,
including these intentional tort claims, against contractors performing work they
consider to be combatant activities. This would be the first time that Boyle has
ever been applied in this manner. Boyle explicitly declined to address the question
of extending federal immunity to non-government employees, and I will not extend
that immunity here.218
The court did not dismiss the option of applying a Koohi-based GCD in Ibrahim, but it
did observe that a host of questions remained to be answered before the Defendants could
begin to meet their burden in asserting the defense.219 Concluding that the full discovery
necessary to determine the issue was not appropriate at that time, the court put off the
question until the summary judgment stage.
D. Conclusion to Part II
The Boyle-based GCD is not the sole obstacle faced by plaintiffs intending to sue military
contractors, or PMFs. As this Part demonstrates, a similar, Koohi-based GCD builds on
Boyle’s logic, and its extension of immunity to Combatant Activities is another defense
broadly employed by defendant PMFs. Boyle, and even Feres, rationale is also cited in
less direct ways, for instance by Blackwater defendants, in their attempt to invoke
separation of powers doctrine and political question doctrine.
The cases considered in this Part are still in the early stags of litigation, but (fortunately
for our analysis) that is precisely where Boyle immunity is most dangerous to the
plaintiffs here. If the GCD is successfully used by defendants to dismiss cases prior to
trial or even discovery, crucial information concerning the conduct of both PMFs and the
government will be lost. Courts have hereto been wary of allowing such developments,
215
“The waiver of sovereign immunity enacted in the FTCA contains an explicit exception for “[a]ny claim
arising out of combatant activities of the military or naval forces, or the Coast Guard, during time of war.”
28 U.S.C. § 2680(j). We believe that exception applies here…” Koohi v. United States, 976 F.2d 1328,
1333 (9th Cir.1992).
216
Ibrahim, 391 F.Supp.2d at 15; citing Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2645-51, (2004).
217
Id., citing Luftig v. McNamara, 373 F.2d 664, 666 (D.C.Cir.1967).
218
Id., at 17 .
219
Id., at 19 .
Page 32 of 33
at least prior to discovery. As shown in Ruth v. A.O. Smith Corp. (Part I, above), even
circuits with lenient standards send cases to jurors where the government’s level of
discretion is in doubt.
Future efforts at using the Boyle-based GCD by defendants will have the burden of
establishing that either the alleged misconduct did not occur, or that it was the result of
conformity with reasonably specific instructions by the government. For some cases, that
may be impossible—for instance, in the McMahon case, a Collateral Investigation Board
jointly conducted by the Army and Air Force after the aviation accident faulted
Presidential Airways “in the staffing, equipping, training, and conduct of the flight.”220 In
other cases, the Abu Ghraib lawsuits, for instance, it seems unlikely that the government
is willing to admit to directly specifying torture in its directives to PMF interpreters.
In conclusion, accountability through private litigation is possible, and, although the
weight of past case law leans in favor of defendant PMFs, current cases force courts to
consider applications of the GCD to alleged misconduct that goes well beyond Boyle’s
original product liability context. The next few years will be definitive in the legal
development of the GCD, with far-reaching implications that promise to influence not
only the cases at hand, but military outsourcing, as well.
220
Spohrer, Blackwater: Legal Consequences of Outsourcing Warfare (2005), text of speech emailed Oct.
31, 2005.
Page 33 of 33
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