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Although the Supreme Court has repeatedly declined to revisit Boyle v. United Technologies Corp., numerous lower court decisions during the past three decades have refined and applied the government contractor defense, including in non-military and services contractor contexts (as discussed in more detail below). This substantial and still-growing body of post- Boyle case law has helped inform courts and litigants as to the contours of the government contractor defense.
By Larry Ebner, Lisa Himes and Katherine Veeder
Nearly 30 years ago, on June 27, 1988, the Supreme Court issued its decision in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). Boyle’s majority opinion, authored by Justice Antonin Scalia, established what is commonly known as the “government contractor defense” — federal government contractors' most enduring defense in product liability and other types of state law tort litigation. As Boyle’s robust progeny has demonstrated, the government contractor defense is Justice Scalia's greatest jurisprudential legacy for contractors facing potential tort liability.
In Boyle, the family of a Marine who drowned following an accidental military helicopter crash sued the manufacturer, alleging negligent design of the helicopter's escape hatch. A Virginia jury returned a verdict for the plaintiffs.
The U.S. Court of Appeals for the Fourth Circuit reversed, holding that the plaintiffs' state tort claims were federally preempted. In his 5-4 majority opinion, Justice Scalia affirmed, articulating a three-pronged, federal common law government contractor defense based on the significant conflict between state tort law and the uniquely federal interests underlying federal procurement of military equipment. See Boyle, 487 U.S. at 504-05, 511.
The Boyle government contractor defense is predicated on a broad federal preemption principle. Justice Scalia explained in Boyle that “a few areas, involving ‘uniquely federal interests' … are so committed by the Constitution and laws of the United States to federal control that state [tort] law is pre-empted and replaced, where necessary, by federal law of a content prescribed (absent explicit statutory directive) by the courts — so called ‘federal common law.’” 487 U.S. at 504 (citations omitted). One of those areas of “uniquely federal” interests is “getting the Government's work done.” Id. at 505-06 .
For this reason, “the liability of independent contractors performing work for the Federal Government, is an area of uniquely federal interest.” Id. at 505 n.1. Justice Scalia indicated, however, that “[d]isplacement will occur only where … a ‘significant conflict’ exists between an identifiable ‘federal policy or interest and the [operation] of state law.’” Id. at 507 (citation omitted) (second alteration in original). “[T]he fact that the area in question is one of unique federal concern changes what would otherwise be a conflict that cannot produce pre-emption into one that can.” Id. at 507-08 (emphasis in original).
Justice Scalia then discussed a “limiting principle to identify those situations in which a significant conflict with federal policy or interests does arise.” Id. at 509 (internal quotation marks omitted). That “limiting principle” is the uniquely federal interests underlying the statutory exceptions to the Federal Tort Claims Act (FTCA) (i.e., the exceptions to the FTCA's general waiver of sovereign immunity). See 28 U.S.C. § 2680.
Since Boyle involved the government's selection of a design for a component of a military aircraft, Justice Scalia pointed to the FTCA's “discretionary function exception,” id. § 2680(a), as “a statutory provision that demonstrates the potential for, and suggests the outlines of, a ‘significant conflict’ between federal interests and state law in the context of Government procurement.” Boyle, 487 U.S. at 511 (citation omitted).
Although the Supreme Court has repeatedly declined to revisit Boyle, numerous lower court decisions during the past three decades have refined and applied the government contractor defense, including in non-military and services contractor contexts (as discussed in more detail below). This substantial and still-growing body of post- Boyle case law has helped inform courts and litigants as to the contours of the government contractor defense.
In this article, we highlight some of that case law. We also offer several practical tips on how contractors can position themselves, including during contract negotiations, to successfully assert the government contractor defense in the event that they are sued by private parties for alleged tortious conduct arising out of contractual performance.
Boyle holds that a contractor that manufactures products for the federal government is not liable in tort to third parties if —
As discussed above, Justice Scalia recognized that the area of federal procurement implicates “uniquely federal” interests in “getting the Government's work done.” Id. at 505. For this reason, when a government contractor tort defendant establishes the three foregoing elements of the government contractor defense — typically by means of a well-supported motion for summary judgment — state tort law significantly conflicts with federal interests and, therefore, is impliedly preempted. Id. at 504-06, 512 (finding that “[i]t makes little sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production”).
The ‘Approval' Prong : The key to the government contractor defense is the first prong — the meaningful involvement, review and approval by the government of the detailed design and safety features. Some courts require not only that a contractor show meaningful government review and approval of the overall product design, but also specifically of the allegedly defective component. See,e.g., Bailey v. McDonnell Douglas Corp., 989 F.2d 794 (5th Cir. 1993) (contractor must prove that the government reviewed the particular design feature at issue to succeed on the first element). Rubber-stamping is not approval by the government.
Long-term use by the government constitutes approval in some circuits. See, e.g., Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946, 950-51 (4th Cir. 1989) (government's continued use of equipment after learning of potential design problem constitutes approval).
Depending on the amount of discretion given to the contractor, performance specifications may be “reasonably precise.” See Carley v. Wheeled Coach, 991 F.2d 1117, 1125 (3rd Cir. 1991). Reasonably precise specifications exist as long as there is evidence of some degree of precision regarding the design feature at issue, e.g., designated minimum or maximum figures or tolerances.
The ‘Conformance' Prong : The main dispute regarding conformance has been whether proof of conformance to government specifications precludes any allegations of manufacturing defect. The government contractor defense does not apply to “manufacturing” (as opposed to “design”) defects. A manufacturing defect is one where the particular product at issue was not produced in conformance with the military's approved specifications.
As such, the contractor would not be able to succeed on the second element of the government contractor defense. See McGonigal v. Gearhart Indus., 851 F.2d 774 (5th Cir. 1988). But if the evidence is that the particular feature at issue in the suit is a “common feature” present throughout the design of the entire fleet of such products, then the courts will convert the “manufacturing” defect allegations into “design defects” and apply the government contractor defense. Harduvel v. Gen. Dynamics Corp., 878 F.2d 1311 (11th Cir. 1989).
The ‘Comparative Knowledge' Prong: Under the third prong of the government contractor defense, a contractor has the responsibility to warn the government of those hazards or risks of which the contractor has actual knowledge and the government lacks such knowledge.
The contractor is not held to a “should have known” standard but to an “actual knowledge” standard. If there is evidence that the government had knowledge equal to or greater than the contractor of the risks/hazards at issue, the contractor can satisfy this element. This knowledge can be acquired by the government through its own operational experience and independent of information provided to it by the contractor.
Some courts have found that a failure-to-warn claim against a government contractor is not barred by the government contractor defense unless the contractor can show that the government specifically prohibited the contractor from placing or modifying a warning on a product or explicitly “prescribed” such warning. See, e.g., In re Joint E. & S. Dist. N.Y. Asbestos Litig. , 897 F.2d 626, 630-32 (2d Cir. 1990).
Other federal courts have adopted a lesser standard by which the government contractor defense can defeat a failure to warn claim, i.e., the contractor need only show that the government was aware of and considered the alleged hazard or deficiency. See Tate v. Boeing Helicopters , 55 F.3d 1150, 1153-54 (6th Cir. 1995); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 998 (7th Cir. 1996).
Recently, the Ninth Circuit in Getz v. Boeing Co., 654 F.3d 852 (9th Cir. 2011) modified its long-standing “prescribe” rule and held that plaintiffs' state law claims, including its claim for failure to warn, were barred by the government contractor defense where the Army “considered, reviewed, and determined which warnings to provide.” Id. at 867.
Courts around the nation have grappled with how to apply the government contractor defense to sets of facts different from those presented to the court in Boyle. As a result, the defense has been expanded beyond military product manufacturers defending against state law claims for product defects, thereby making the government contractor defense available to a broader array of government contractors.
Along with the government contractor defense, the “combatant activities preemption” defense spawned by Boyle’s overarching preemption framework is an additional jurisprudential gift that Justice Scalia gave to government contractors facing potential tort liability.
As discussed above, “[t]he crucial point [in Boyle] is that [Justice Scalia] looked to the FTCA exceptions to the waiver of sovereign immunity to determine that the conflict was significant and to measure the boundaries of the conflict.” Saleh v. Titan Corp., 580 F.3d 1, 6 (D.C. Cir. 2009). Saleh was a “battlefield contractor” tort suit brought on behalf of Iraqi nationals who alleged that they were tortured or abused by U.S. military contractors that provided interrogation and translation services at Abu Ghraib prison during Operation Iraqi Freedom.
In his frequently cited majority opinion, Senior Circuit Judge Laurence Silberman, joined by Circuit Judge Brett Kavanaugh — over Circuit Judge Merrick Garland's dissent — held that “the plaintiffs' common law tort claims are controlled by Boyle.” Id. at 5. More specifically, Judge Silberman indicated in Saleh that “the relevant exception to the FTCA's waiver of sovereign immunity is the provision excepting ‘any claim arising out of the combatant activities of the military or armed forces, or the Coast Guard, during time of war.’” Id. at 6 (quoting 28 U.S.C. § 2680(j)).
He explained that “the policy embodied by the combatant activities exception is simply the elimination of tort from the battlefield, both to preempt state or foreign regulation of federal wartime conduct and to free military commanders from the doubts and uncertainty inherent in potential subjection to civil suit.” Id. at 7. Further, “the policies of the combatant activities exception are equally implicated whether the alleged tortfeasor is a soldier or a contractor engaging in combatant activities at the behest of the military and under the military's control.” Ibid.
Building on Boyle’s preemption principles and the foregoing policies underlying the FTCA combatant activities exception, Saleh articulated a combatant activities preemption test: “During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor's engagement in such activities shall be preempted.” Id. at 9. At least two other circuits have adopted Saleh’s combatant activities preemption test. See In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 351 (4th Cir. 2014), cert. denied, 135 S. Ct. 1153 (2015); Harris v. Kellogg, Brown & Root Servs., Inc.724 F.3d 458, 480 (3d Cir. 2013), cert. denied, 135 S. Ct. 1152 (2015).
In certiorari-stage amicus curiae briefs filed in the Supreme Court, the United States has advocated a broader combatant activities test than the Saleh test, and in so doing, has endorsed a combatant activities preemption principle based on the “general preemption framework set forth in Boyle.” Br. for the United States as Amicus Curiae, Kellogg, Brown & Root Servs., Inc. v. Harris , No. 13-817 (U.S. Dec. 16, 2014), at 13.
Government contractors should consider the following practice tips to place themselves in the best position to assert Boyle’s government contractor defense when and if necessary.
Negotiation of contract terms and conditions: In negotiating special clauses, government contractors should:
Marshaling the evidence: As a threshold matter, government contractors should remove these state law product liability and/or services-related tort suits to federal court whenever possible. Grounds such as federal officer removal are particularly appropriate in these cases, and the government contractor defense serves as a colorable federal defense. Following removal, government contractors should ensure that summary judgment motions based on the government contractor defense are supported by the following types of documents:
Lawrence S. Ebner is an Appellate Litigation Partner at Dentons US LLP. He focuses on representing companies whose products or services are regulated or procured by the federal government, and also giving entire industries a voice as amici curiae in Supreme Court and other appeals that affect their businesses. Lisa Norrett Himes is a Litigation Partner at Dentons US LLP. She focuses her practice on government contracts-related tort litigation, product liability and class-action litigation and counseling, and employment issues. Katherine L. Veeder is a Managing Associate in the Government Contracts department at Dentons US LLP. She focuses her practice on all aspects of government contracts law. Among other things, she regularly counsels government contractors on compliance with contractual, statutory and regulatory requirements, False Claims Act liaibility, and suspension and debarment.
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