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Military contractors and subcontractors are watching to see if the Supreme Court will take up a case that would settle the question of who should be liable for the actions of Pentagon contractors in areas with active conflict.
The case involves a 2010 plane crash in Afghanistan in which eight people died, and the air traffic controllers were subcontractors of the U.S. military. Midwest Air Traffic Control Service Inc. asked the court in December to rule on the issue, arguing that it should not be held liable for the deaths because of the U.S. government’s immunity from negligence claims for “combatant activities” during time of war.
The petitioners argue that a court split on the combatant-activity exception to government liability for torts is ripe for clarity from the U.S. Supreme Court. But the respondents believe that the case up for debate arose out of civilian negligence rather than combatant activity.
“Any time there’s a substantial stationing of American troops in foreign countries for combatant-related things—and certainly the Ukraine is one—the military’s going to be heavily supported by contractors,” said Paul Figley, an American University law professor and former deputy director of the Department of Justice Civil Division’s Torts Branch.
Just after sunset in October 2010, an American-chartered cargo plane departed Bagram Airfield for the airport near Kabul. The visibility was poor and the aircraft’s terrain avoidance system wasn’t working properly. The plane crashed into mountainous terrain nearly 10 miles east of the Kabul airport.
Midwest Air Traffic Control Service personnel were performing the related air traffic control services on a subcontract for a company contracting with the U.S. military.
The crash occurring at a civilian air traffic control center in a mostly civilian airport makes this case “different from all the other cases” that clearly meet the combatant activity standard, Stephen Vladeck told Bloomberg Government. Vladeck is the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law and represents the families of the deceased passengers.
Midwest Air Traffic Control Service argued in its petition that various courts’ decisions on applicability of the Federal Torts Claims Act have ranged from defining the combatant activities exception to exclude “nongovernmental actors” to denying damages sought by Iraqi nationals for torture techniques used in the Abu Ghraib military prison interrogations because contractors “perform a common mission with the military under ultimate military command.”
The Federal Torts Claim Act was meant to cover harm caused by “run of the mill” negligence when cases arise from the services or products provided by employees of the federal government, Figley said, such as those related to electrical systems or shower stalls.
But as the government increasingly relies more on contractors in private industry to do everything from security services to managing facilities, the question of liability becomes more complicated.
The brief on behalf of the families of the deceased passengers argues that the original negligence claim included “ordinary flight operations” and Midwest’s petition to the Supreme Court couldn’t identify “military direction that was responsible for its alleged negligence.”
Congress wrote in certain exceptions to the law—like the combatant-activities exception—”to preserve the government’s right to be the government,” Figley said. “Waiving sovereign immunity goes one direction, and raising the government contractor defense pushes the other. It’s much harder to see why protecting industry or government contractors have the same underlying rationale.”
Vladeck said he believes the court will ask for an opinion from the U.S. Solicitor General on behalf of the Biden Administration.
“The wild card is whether they’re on the petitioner side or the respondents’ side on whether this was related to combatant activities,” he said.
The Department of Justice has a “fairly consistent position on how much the contractor has to be connected to the military,” Vladeck said. “But I don’t think they have a position that clearly hashes out on whether what happened on the night on Oct. 12 was combatant activity.”
Lawyers representing Midwest Air Traffic Control Service declined to comment.
The U.S. military has increased its use of private contractors over time. Over a six-year period, contractors made up more than half of the Defense Department’s presence in Afghanistan and Iraq and cost nearly $160 billion, according to court documents.
Whether contractors should have a defense mechanism available to them is a policy debate, according to Vladeck, leaving the question up to Congress and not the courts.
“If there’s a consensus that contractors ought to have a defense in cases like these—and I’m not sure there is—but if there is, then it seems like that should come from Congress,” he said.
The risk of tort liability, however, would deter private contractors from getting involved in conflicts abroad with the U.S. military, Jennifer Zucker, a lawyer for the Professional Services Council, said in a brief supporting Midwest.
“War is incompatible with tort law because it is intentionally violent and inherently unpredictable,” Zucker wrote.
A brief by the Chamber of Commerce in support of Midwest’s petition added that fewer businesses willing to contract with the federal government would affect everyday citizens.
“Ultimately the burden will fall on the American taxpayers (who absorb the resulting costs),” lawyers for the chamber wrote.
Families of the deceased passengers sued Midwest Air Traffic Control Service and several other companies. Midwest filed a motion in the Western District of New York for summary judgment in its favor, which was granted by the magistrate judge on the basis of the combatant activities exception.
The Second Circuit rejected Midwest’s argument and remanded the case to the district court for a determination of facts regarding the company’s liability. Those proceedings are on hold pending the outcome of the petition to the Supreme Court.
The case is Midwest Air Traffic Control Service, Inc. v. Badilla, U.S., No. 21-867, cert. filed 12/8/21.
To contact the reporter on this story: Patty Nieberg in Washington at firstname.lastname@example.org