Civilian soldiers: expanding the government contractor defense to reflect the new corporate role in warfare.

I.   INTRODUCTION

II.  THE PAST: SOVEREIGN IMMUNITY, THE F.T.C.A., AND
     THE FERES-STENCEL DOCTRINE
     A. Sovereign Immunity
     B. The Federal Tort Claims Act of 1946
     C. The Feres-Stencel Doctrine

III. THE PRESENT: THE GOVERNMENT CONTRACTOR DEFENSE

IV.  THE FUTURE: CORPORATE WARFIGHTERS AND EXPANDING
     THE GOVERNMENT CONTRACTOR DEFENSE
     A. The Policy behind Expansion
     B. The Authority to Expand
     C. The Extent of Expansion

IV. CONCLUSION

I. INTRODUCTION

Wars are no longer fought on the battlefield but in the shadows. The guerrilla-style tactics currently utilized by terrorist organizations forced the United States Armed Forces to re-think its approach to warfare in the 21st Century. Change was not limited to the military. With the War on Terror emerged a new industry that re-defined the corporate role in war. Businesses no longer simply manufacture the products of war; they also provide the warriors, representing a large shift from products-based to services-based government contracts. Corporations engaging in products-based government contracts flock to the government contractor defense (GCD) for protection. Arising from the doctrine of sovereign immunity, the GCD provides absolute immunity to contractors facing negligence, warranty, or strict liability claims due to incidents caused by defective designs. But what protection is currently provided to contractors employed by the government to perform service-based contracts? Simply put, nothing. This evolution in modern-day warfare sparks a wave of fresh legal issues requiring a re-examination of the past, present, and possible future expansion of the government contractor defense.

II. THE PAST: SOVEREIGN IMMUNITY, THE F.T.C.A., AND THE FERES-STENCEL DOCTRINE

A. Sovereign Immunity

Sovereign immunity is a legal concept arising from Old-English law that precludes an individual from filing suit against the government without its consent. (1) The Supreme Court of the United States confirmed the doctrine's transatlantic migration in 1821 through its ruling in Cohens v. Virginia. (2) As the federal government expanded in size, so did the number of incidents resulting in death or injury to civilians based on the negligent acts of federal agents. (3) However, due to the Court's adoption of the sovereign immunity doctrine, victims of such incidents were left without remedy.

Suggestion of a possible GCD first emerged in 1940 through the Supreme Court's expansion of sovereign immunity to a government contractor in Yearsley v. W.A. Ross Construction Co. (4) In Yearsley, Ross Construction received a government contract to build several dikes on the Missouri River. (5) In the process of performing this contract, a portion of Petitioner's land was allegedly washed away at the hands of Ross, prompting swift legal action for damages. (6) The Court denied Petitioner's claim, reasoning that "the action of the agent is 'the act of the government.'" (7) The Court elaborated by stating, "if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will." (8) As if to foreshadow the eventual GCD, Yearsley provided sovereign immunity to public-works contractors while properly performing government contracts, basing its decision on a government agency defense. (9) In doing so, however, the Court failed to delineate the extent to which such a defense could be applied. (10)

B. The Federal Tort Claims Act of 1946

In 1946, Congress finally responded to the growing number of incidents arising out of acts of the government by enacting the Federal Tort Claims Act (FTCA). Under the FTCA, the government waived a small portion of its vast sovereign immunity power for incidents arising from:

   injury or loss of property, or personal injury or death caused by
   the negligent or wrongful act or omission of any employee of the
   government while acting within the scope of his office or
   employment, under circumstances where the United States, if a
   private person, would be liable to the claimant in accordance with
   the law of the place where the act or omission occurred. (11)

The FTCA provided once powerless victims of government negligence an avenue for redress. Unfortunately, the road to litigation was small, allowing the government to retain its immunity in all cases not specifically falling under these particular conditions. In doing so, Congress failed to extend immunity to contractors acting within the proper scope of government contracts, leaving honest government contractors susceptible to litigation.

C. The Feres-Stencel Doctrine

One issue left open was whether military personnel injured in the line of duty could file suit against the government through the FTCA. The Supreme Court addressed this problem several years later in Feres v. U.S. (12) In Feres, the Court considered three separate actions, each involving either death or injury to military personnel caused by the negligence of other military members. (13) The Court ultimately rejected each petitioner's claim, ruling that the government's sovereign immunity was not waived by the FTCA for "injuries to servicemen where the injuries arise out of activity incident to military service." (14) Therefore, Feres precluded military members from filing suit against the government for service-related injuries. (15)

The Court ruled differently the following year when approached with the same issue in reference to injuries sustained by private parties. In U.S. v. Yellow Cab Co., the Court found that the FTCA does not preclude the government from litigation as a third-party defendant for injuries sustained by a private citizen as a result of, at least, partial negligence by the government. (16) The difference between Feres and Yellow Cab hinges on the status of the injured party and their ability to recover for damages against the government. Since servicepersons have additional means of recovery, the Court concluded that the FTCA should not pertain to them. On the contrary, the FTCA provides the sole avenue of recovery for civilian citizens.

Nearly two decades later, the Court broadened the scope of Feres in its decision in Stencel Aero Engineering Corp. v. U.S. (17) In Stencel, a National Guard pilot was permanently injured when the ejection system of his F-100 fighter aircraft malfunctioned during an in-flight emergency. (18) The pilot brought suit against the defendant manufacturer of the ejection system. (19) In response, Plaintiff filed a cross-claim against the United States for indemnity, asserting that the system's failure was a result of inaccurate design specifications provided by the government. (20) Similar to Feres, the Court concluded that the FTCA prevented government contractors from filing indemnity actions against the government for damages paid for injuries sustained by servicemen in the course of military service. (21) The Court made three points in supporting its conclusion, the first two points being factors first raised in Feres. First, the relationship between the government and members of the Armed Forces is "distinctively federal in character" to warrant a federal claim. (22) Second, the Veteran's Benefit Act established the proper mode of redress for servicemen and servicewomen, mitigating the need for the FTCA. (23) Third, allowing redress for incidents arising out of service would hamper the "peculiar and special relationship" between service-members and their superiors. (24) As Fetes precluded servicemen from filing suit against the government, Stencel extended the government's sovereign immunity to third party indemnity claims. (25) This principle decision, along with its rationale, completes what is now commonly referred to as the Feres-Stencel Doctrine, which essentially immunizes the government from products liability cases arising out of government contracts. Unfortunately, while providing greater protection to the government, the Court's decision left manufacturers of military products entirely vulnerable to attack.

III. THE PRESENT: THE GOVERNMENT CONTRACTOR DEFENSE

Products-based litigation against government contractors exploded in the wake of the Vietnam War. Several high-profile cases stirred the pot that ultimately led to the Supreme Court's creation of the government contractor defense. The first major case to gain public attention was In re "Agent Orange" Product Liability Litigation. (26) In Agent Orange, multiple Vietnam veterans filed suit in the United States District Court for the Eastern District of New York against the chemical companies that manufactured the chemical compound known as Agent Orange. (27) "Approximately 20 million gallons of [Agent Orange and other] herbicides were used in Vietnam between 1962 and 1971 to remove unwanted plant life and leaves which otherwise provided cover for enemy forces during the Vietnam Conflict." (28) Many veterans have reported medical concerns allegedly caused by exposure to Agent Orange. (29) As in Stencel, the chemical companies responded by filing third-party indemnity suits against the government for their dominant role in compelling such contracts. (30)

The court immediately dismissed the third-party claims against the government based on the doctrine of sovereign immunity as ruled in Stencel. (31) In looking to the manufacturers of Agent Orange, however, the court provided the first large step toward the creation of the GCD. The court in Agent Orange concluded that the manufacturer of products supplied through a government contract would be immune to lawsuit for damages arising thereof provided that the defendant prove three essential elements: (1) the government created the specifications for the Agent Orange chemical compound; (2) the Agent Orange manufactured by the chemical companies met the government's specifications in all respects; and (3) the government knew as much as or more than the defendant about the hazards to people that accompanied use of Agent Orange. (32) In other words, manufacturers of products gained through government contracts could receive sovereign immunity if they proved adherence to the specific design standards mandated by the government. Although only an Eastern District of New York decision, this court's ruling became extremely influential in looking to future disputes.

One year later, in McKay v. Rockwell International Corp., the U.S. Court of Appeals for the Ninth Circuit provided the next critical step to this budding legal doctrine by further expanding contractor immunity in products liability cases. (33) In Rockwell, the widows of two Navy pilots brought suit against an aircraft manufacturer for installing the faulty ejection systems that caused their husbands' untimely deaths. (34) The Ninth Circuit adopted the analysis earlier provided in Agent Orange, concluding that under the Feres-Stencel Doctrine, the government was immune from legal action filed by a military servicemember. (35) Additionally, the aircraft manufacturer would be provided immunity if they proved the three-prong test originally created by the court in Agent Orange. (36)

In looking specifically to the Agent Orange test, the court in Rockwell went one step further by expanding the first prong of the test. The court determined that the government need not actually create the product specifications in order to satisfy this portion of the test. Rather, the defendant need only show that the government approved the particular product specifications utilized by the manufacturer in order to pass this requirement. (37) Expansion of the first prong provided government contractors with an enormous amount of discretion in developing products for the government. No longer must the government approach its corporate counterpart with a list of required specifications. Corporations were now free to develop and execute their own specifications within the design process. The first prong in Rockwell only required the government to provide its stamp of approval prior to production.

The Rockwell decision highlights the benefits that come with corporate design and development. Military programs often do not match the advances in science and technology found in the outside world. In order to ensure state-of-the-art products and designs, military contracts must rely on the increased knowledge of external parties. This essential characteristic is currently reflected in the military procurement process. Officials often only provide competing businesses with the government's desired end goal or need, allowing corporations to approach creatively the government's needs and provide within their overall bid the corporation's best design solution for meeting those objectives. A large portion of the selection process involves weighing the costs and benefits of differing designs. Under a Rockwell analysis, mere government ratification of performance specifications for a product provides the requisite approval and satisfies the first prong of the test. (38)

Although Rockwell essentially makes it easier for government contractors to gain immunity, it does so with a heavy hand concerning the product's specifications. The court warned contractors that the GCD will not apply in cases "[w]hen only minimal or very general requirements are set for the contractor by the United States." (39) This protects the GCD from abuse by contractors who would seek to circumvent the formality of the doctrine by merely providing vague specifications within the contract. Requiring comprehensive details provides additional incentives for contractors to approach meticulously government design. Doing so not only protects the contractor but the population as a whole, as increased attention to design likely decreases the risk of future incidents.

The Ninth Circuit justified its decision by providing several reasons why strict liability does not apply to government contractors. First, the court addressed the "enterprise liability rationale" of strict liability, which provides that the price of a product reflects its inherent risk by distributing the cost of accidents throughout its consumer base. (40) The court ultimately rejected this general principle as applied to government contracts because the principle underlying the rationale does not apply when one entity acts as the entire consumer base. In regards to government contracts, the government is already aware of most, if not all, risks associated with military products. (41) In addition, as the sole consumer base for the product, a decrease in the number of products purchased will not affect the overall purchase price. (42) Therefore, the enterprise liability rationale does not apply to such situations. Second, the court concluded that strict liability does not deter manufacturers from marketing unsafe products in a government setting because the demand for such equipment is highly inelastic. (43) Third, as discussed in the Feres-Stencel doctrine, the Veteran's Benefit Act provides victims of military-related incidents an appropriate avenue for compensation normally provided by strict liability. (44) Finally, members of the armed forces have much lower "reasonable expectations of safety" than ordinary consumers based on the inherent danger of their occupation. (45) For these reasons, the court rejected strict liability in cases arising out of government military contracts.

Despite the vast amount of media and legal attention surrounding the government contractor defense, the Supreme Court of the United States remained silent for five more years following the Rockwell decision. However, the 1988 case of Boyle v. United Technologies Corp. demanded the Court finally open its doors to the issue. (46) Boyle involved the wrongful death of a Marine helicopter pilot who, due to an outward-moving emergency hatch, was unable to escape from his aircraft after going down in the Atlantic Ocean. (47) The family of the deceased pilot sued the manufacturer of the hatch in federal district court, claiming a defective design of the helicopter's safety device. (48) At trial, the jury returned a verdict for the plaintiff. (49) However, the U.S. Court of Appeals for the Fourth Circuit reversed and remanded the case with directions to enter a judgment for the defendant manufacturer on appeal. (50) The Supreme Court granted certiorari in 1987 and Justice Scalia delivered the opinion the following year.

The Court's opinion in Boyle was multi-faceted. First, the Court identified two "uniquely federal interests" found in the case that justified pre-emption of state law: (1) the "obligations to and rights of the United States under its contracts;" and, (2) "the civil liability of federal officials for actions taken in the course of their duty." (51) In reference to the second point, the Court addressed the Feres-Stencil doctrine, eventually rejecting it as both too broad and too narrow. (52) The doctrine was found too broad because it protects contractors from liability for products offered in the regular marketplace as well as those that are specifically related to government interests. (53) The doctrine was held too narrow because it only covered service-related injuries and not those "injuries caused by the military to civilians." (54)

After establishing the federal nature of the suit, the Court moved to the issue of immunity, officially adopting the government contractor defense established in Rockwell. As stated by the Court:

   Liability for design defects in military equipment cannot be
   imposed ... when (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. (55)

The Court's decision in Boyle provides an enormous amount of protection to manufacturers of military products. Both civilians and military members are barred from filing suit based on defective products, (56) thus illustrating an integration of the Court's previously distinguished decisions of Feres and Yellow Cab. Despite the opinion's clarity, the Court left several questions unanswered. Namely, the Court failed to address whether the GCD applies to services-based government contracts as well as its products-based counterpart. Perhaps the Court simply could not foresee the role that corporations would play in war in the 21st Century.

IV. THE FUTURE: CORPORATE WARFIGHTERS AND EXPANDING THE GOVERNMENT CONTRACTOR DEFENSE

In a fall 2007 hearing with the Senate Appropriations Committee, Secretary of Defense Robert Gates confirmed there were approximately 137,000 civilians employed by the United States military and currently working in Iraq. (57) Subcontractors employed and also operating in the country were not included in this figure. By early 2008, the number increased to 190,000, representing a 1 to 1 ratio of military and civilian personnel working in Iraq, (58) not to mention those working in other countries such as Afghanistan and Kuwait. These numbers represent nearly a ten-fold increase in outsourced contractors since the 1991 Gulf War. Contracted positions run the gamut in the War on Terror, providing services ranging from simple contracts such as food services, linguistics, and construction to complex, "tip-of-the-spear" actions like private security services, logistics support, combat/strategic planning, and training the Iraqi police. The Congressional Budget Office "estimates the total cost of these military contractor operations from 2003 through 2008 to be $100 billion." (59) Suffice it to say, government services contracts are a major market in the War on Terror, and business is booming.

Incidents are bound to arise with such a major presence in this highly volatile area. On September 16, 2007, headlines across the globe highlighted the dangers of such contracts when civilians representing Blackwater USA, a private security firm operating under a number of government contracts in Iraq, engaged a crowd of Iraqi civilians, killing 17 and wounding 24. (60) Blackwater officials claim the engagement was necessary, as the hostile crowd initiated the attack. (61) Nonetheless, an Iraqi panel sought $8 million in compensatory damages. (62)

To date, corporate warfighters have avoided such suits in the Iraqi court system by operating under the protection of United Nations Security Council Resolution 1790. (63) This resolution, which reaffirmed Security Council Resolution 1546, allowed the United States to retain sole "responsibility for exercising jurisdiction over their personnel," (64) to include its corporate agents. As a result, legal action against such corporations has been barred by those acting outside the United States. Throughout this time, however, corporations have remained vulnerable to attack within American borders. In addition, the United Nations' corporate security blanket was recently pulled off the bed when the controversial resolution expired on December 31, 2008 without any diplomatic extension. As a result, the last thread of legal protection provided to corporate warfighters has now been officially severed.

Incidents such as what occurred in September of 2007 are not new to war or the law. However, the sensitive nature of the current mission, the loss of corporate legal protection, and the sustained number of private contractors operating in Iraq create the "perfect storm" for a massive increase in litigation in the near future. The significant potential for legal conflict begs the question: should the GCD be expanded to provide corporate warfighters immunity for services-based government contracts? The answer: absolutely yes.

At first glance, this response might generate a heated reaction. Undoubtedly, encouraging an expansion of absolute protection in times of war is one viewpoint especially prone to criticism. However, one should not be quick to judge. Providing immunity to corporations engaged in sensitive government service contracts actually results in a greater level of protection for all individuals. A systematic approach to this issue is extremely important, first requiring a look to the policy considerations embedded within the current GCD. Next, analyzing whether the GCD should take command of services-based contracts is best approached by discussing the same two questions that any new officer asks before taking command: (1) under what authority do I command and (2) to what extent do I command? Such analysis yields the conclusion that a limited expansion of the GCD should be afforded to sensitive services-based government contractors engaged in the War on Terror.

A. The Policy behind Expansion

The original policy concerns giving rise to the GCD mirror those inherent in this new realm of services-based contracts. The GCD was originally created to resolve several fundamental interests within the products-based arena. First, providing the GCD encourages product-based corporations to work with the government in developing and producing state-of-the-art equipment. (65) Without this affirmative defense, there would likely be a decrease in contractor participation with the government as well as diminished efforts toward new and innovative research and development. (66) Second, failing to provide legal protection when incidents arise requires that corporations provide additional liability insurance to protect themselves, causing a large increase in overall cost to the government. (67) Third, the GCD illustrates the overall need for military leadership to provide the appropriate risk versus utility analysis in military-specific scenarios without any fear of judicial interference. (68)

Applying these policy considerations to services-based government contracts produces an identical result. First, by failing to provide immunity to government contractors fulfilling services-based military needs, contractors are not encouraged to work with the government to their fullest capacity in performing specific missions. By leaving corporations open to litigation for incidents arising out of the performance of government contracts, individual contracted actors might fail to commit fully to particular military engagements. This danger increases when considering the threat posed to military members facing hostile fire alongside civilian counterparts--a common event in the War on Terror. During combat, all parties must operate as a single unit. Contractors, fearing potential liability for actions taken during the fog of war, might fail to engage fully in enemy combat. Doing so presents life-threatening dangers to the military components relying on them for support.

Second, as the inherent risk within a contract rises, so does the potential for litigation. Contractors are compelled to increase drastically the overall contract price in order to offset the likely cost of litigation. This presents a possible explanation as to the incredible price tag that often comes with risk-filled service contracts. The total cost of contracted paramilitary forces such as Blackwater from 2003 through 2008 is estimated to be approximately $12 billion. (69) Providing contractors with protection through the GCD could potentially decrease the overall cost of such valuable services.

Third, as in products-based contracts, the Department of Defense must also feel free to perform the appropriate risk versus utility analysis in determining the value these services provide to the military. This decision cannot be adequately made by an outside party. The threat of external retribution for inherently military tasks decreases the overall effectiveness of the military decision-making process. Therefore, as seen above, the policy concerns embedded within the current GCD are equally applicable in the service-based arena.

Policy considerations beyond those addressed in the products-based realm further suggest that services-based contracts deserve additional protection. To begin with, government-contracted services allow individuals to receive much higher compensation than the average soldier. Many of these employees are prior military servicepersons, often receiving a ten-fold increase in salary for performance as government contractors. Additionally, government contractors ensure the continuation of an all-volunteer service. Hiring outside sources for tasks of a military nature allows contractors to "fill in the gaps," decreasing the overall burden of military recruitment. Finally, and perhaps most importantly, these contracts decrease the government's overall burden in times of war. Acting alone, the military simply cannot perform all aspects of the War on Terror. Such a widespread mission requires efforts beyond that of the traditional military role. Government-contracted services alleviate an enormous amount of logistical concerns required for such operations, further promoting expansion of the GCD.

B. The Authority to Expand

Several legal doctrines provide the appropriate level of authority in expanding the GCD. The first option comes from a simple modification to the existing GCD under the "discretionary function exception" expressed by the Court in Boyle. (70) The United States District Court for the Southern District of Texas recognized the potential to expand Boyle in its analysis in Fisher v. Halliburton. (71) In Fisher, several contractors employed by Halliburton sued the corporation on grounds that their role within a military convoy intentionally made them vulnerable to attack in order to lure enemy forces away from a military fuel truck, allowing the truck uninhibited access to Baghdad International Airport. Enemy forces engaged the decoy, resulting in injury to the contractors. In dictum, the court in Fisher discussed the potential judicial authority to expand immunity to private government contractors through the "uniquely federal interest" inherent in government contracts. (72) The court looked to Boyle, noting that the Supreme Court utilized its discretionary function and concluded that military products were of a "uniquely federal interest" to warrant the government's protection. (73) This determination provided the appropriate parameters in creating the original GCD. According to the district court's interpretation of Boyle, "the FTCA contains an exception to the government's waiver of sovereign immunity for claims based on the performance of discretionary functions or duties on the part of a government employee." (74) As the Supreme Court in Boyle utilized their discretionary function to originally create the GCD for products-based government contracts, they could do so again in this case.

Despite its applicability to the services-based contract in Halliburton, the court refused to take this leap, focusing rather on the lack of a specific product that would justify use of the current defense. The court concluded that the "extension of the government contractor defense beyond its current boundaries is unwarranted and the FTCA does not bar Plaintiffs' claims." (75) Despite the result, the court in Halliburton recognized the potential for modifying the GCD through the discretionary function exception identified by the Supreme Court in Boyle, illustrating the first possible avenue of authority for expanding the GCD.

Use of the "agency defense" provides a second possibility for expansion. Yearsley opened the door to this approach by providing immunity to public works contractors while performing government contracts. (76) Yearsley remains intact today and has been applied several times in the past to provide an absolute defense to contractors employed by the government. The U.S. Court of Appeals for the Eleventh Circuit in Shaw v. Grumman Aerospace Corp. provided the appropriate three-prong test for determining when to apply the agency defense to military contractors. (77 In order to be considered an agent of the government, circumstances must show that: (1) the government is open to suit in light of the Feres doctrine; (2) the contractor acted as an agent for the government; and (3) the contractor acted within the scope of his duties. (78) Similar to the three-prong analysis set forth in Boyle, this test has been applied in the past to determine agency relationships within government contracts.

Utilization of the Shaw test indicates that services-based government contractors could find protection through the agency defense. First, as seen earlier, Feres only applies to military individuals acting within the scope of military service. The government retains liability for all other individuals and/or situations arising from negligence of a government actor. Because the government is open to suit in most situations, the first prong of the test is almost always satisfied.

Second, employees executing government contracts should be considered agents of the government. Such was the status of Ross Construction in the Supreme Court's Yearsley decision, where the notion that a contractor was liable for actions taken under the authority of the federal government was found by the Court to be "untenable." (79) Corporate actors employed under national decree should apply to this standard as well, as contractors currently engaged in operations overseas are employed solely on behalf of important governmental interests.

The agency relationship between the United States and its contracted employees is best illustrated through the public response to incidents arising from the negligence of government contractors. When a contracted employee's actions generate public attention, the response focuses as much criticism on the nation's leaders as the corporation itself, illustrating a national recognition of the close affiliation between the government and its contracted agents. Simply put by one court, "to insulate the United States from its discretionary decisions, but not to do likewise when the United States enters into contracts with others to execute the will of the United States 'makes little sense.'" (80) Because government contractors act on behalf of the United States, they should be deemed agents of the government, sat11fying the second prong of Shaw.

The third prong remains satisfied as long as contractors act within the scope of their duties. This provides additional assurance that the defense will not be abused by overzealous government contractors.

Instances that fall outside the scope of the contract eliminate the potential for the agency defense, requiring constant diligence by contractors in performing the specifications of their contract. Therefore, through satisfaction of All three prongs of the Shaw test, the agency defense provides the necessary authority for future expansion of the GCD.

While either legal doctrine provides adequate authority to expand the GCD, the optimal solution comes from a combination of both defenses, a legal doctrine commonly referred to as "derivative sovereign immunity." When private contractors act in tandem with federal agencies, derivative sovereign immunity "arises where the government: (a) approves in its discretion reasonably precise specifications, (b) supervises and controls the implementation of those specifications, and (c) the contractor is not aware of reasons not known to the government why the application is unsafe or unreasonable." (81) Derivative sovereign immunity, therefore, reflects the Boyle test in light of commanding agency principles originated by the Court in Yearsley, thus providing the best avenue for expanding the GCD. Courts have already begun linking the GCD to services-based contracts through use of the derivative sovereign immunity defense.

The U.S. District Court for the District of South Carolina concluded in Richland-Lexington Airport Dist. v. Atlas Properties that the GCD applied not only to military and non-military contracts but also to performance-based contracts. (82) The court reasoned that, according to Boyle, "[t]he dispositive issue [was] not one of performance versus procurement, but whether there [was] a uniquely federal interest in the subject matter of the contract. Performance therefore is on an equal footing with procurement." (83) The U.S. District Court for the Southern District of New York adopted a like analysis in Askir v. Brown & Root Services Corp. when it determined that the GCD should include performance-based contracts engaged with the United Nations. (84) In re Worm Trade Center Disaster Site Litigation provides additional use of the derivative sovereign immunity defense. In Worm Trade Center, individuals employed as the clean-up crew in the aftermath of 9-11 filed suit against the City of New York as well as their employers for injuries resulting from working in the health-hazardous conditions found at "Ground Zero." (85) On appeal, the United States Court of Appeals for the Second Circuit concluded that "[i]f Defendants show that the applicable agencies were entitled to discretionary function immunity ... they may be entitled to derivative immunity." (86) Although merely based on a motion for summary judgment, this case provides yet another example of how this unresolved issue is emerging in numerous services-based government contracts cases.

McMahon v. Presidential Airways, Inc. serves as the preeminent case on expanding the GCD through the derivative sovereign immunity doctrine. (87) In McMahon, several U.S. soldiers were killed in Afghanistan when their aircraft, piloted by a civilian contractor, went down in enemy territory. (88) Survivors of the fallen soldiers filed suit against Presidential Airways, Inc., the corporation employed by the Department of Defense to provide air transportation and support in the war-torn region. Presidential Airways' defense relied solely on the derivative immunity doctrine in light of Feres, arguing that, since Presidential Airways acted as an agent of the government while performing this contract, the corporation should be immune from claims by servicemen under the Feres decision. (89)

The Eleventh Circuit formulated its decision by analyzing the doctrine of derivative immunity against the backdrop of Feres and held, inter alia, that derivative Feres immunity did not apply to government contractors. (90) The court of appeals identified three policy considerations originally utilized by the Supreme Court in its Feres decision to determine that Feres immunity is not extended to government contractors: (1) the need to have uniform rules does not apply to private contractors; (91) (2) the compensation cap generally provided to servicemen under the Veteran's Benefit Act does not apply to government contractors since the corporation has not invested its funds into any like compensation program; (92) and (3) the need for military justice through discipline does not apply to government contractors. (93) As a result, government contractors could not rely on derivative Feres immunity as a defense.

In limiting their analysis to Feres, Presidential Airways failed to recognize the full scope of the Boyle decision and, in turn, greatly limited their case for providing immunity. After all, the Court in Boyle held that Feres was an inexact and often inappropriate doctrine and, therefore, declined to approach its decision through the lens of Feres. (94) Instead, the Supreme Court in Boyle employed its discretionary function by finding a question of "uniquely federal interest." (95) "[T]he liability of independent contractors performing work for the Federal Government, like the liability of federal officials, is an area of uniquely federal interest." (96) By approaching its defense solely through Feres, the defendant missed a great opportunity. Had they more closely aligned their argument with Boyle, perhaps the outcome would have been different.

Despite Presidential Airways' ineffective approach, the court in McMahon still could have ruled in its favor through an alternative analysis of the Feres doctrine. First, in considering the need for a uniform law, the Eleventh Circuit concluded that the uniformity requirement was not satisfied within the contractor realm since even federal agencies, let alone contractors, often do not have uniform laws. (97) However, in reaching this conclusion, the court in McMahon mistakenly focused narrowly on the contractor rather than the government's interest in maintaining uniformity. As a result, the court failed to recognize two large areas that potentially satisfied the first prong of Feres. First, the "uniquely federal interest" required by the Feres test may be found through the government's need to execute federal contracts in a uniform manner. This position becomes clearer in light of the second uniquely federal interest: the federal procurement process. The Federal Acquisition Regulations provides government sources with the appropriate procedural guidelines for acquiring goods and services on behalf of federal interests.98 All federal agencies must strictly adhere to the procurement procedures outlined within this collection of statutes. Because the government contract was directly at issue in McMahon, the uniformity of the procurement process links federal agencies with government contractors. Therefore, either approach to the issue of uniformity overcomes the court's first rationale for prohibiting immunity in McMahon.

Second, although corporations do not currently invest in the Veteran's Benefit Act, there are many ways to satisfy this requirement. Procurement officials have the ability to include such consideration within the verbiage of government contracts. Fulfilling this support requirement may come/arise in several forms: through decreasing contract price, requiring financial investment within a government funds cites, or establishing private contingency funds for such situations. None of these occurred in McMahon, making satisfaction of this prong difficult to accomplish without further information concerning potential additional financial support offered by the company. Future corporations might achieve this more easily through innovative support of military services and its employees in case of incident. Corporations undoubtedly would be willing to invest a portion of their funds toward compensation programs if doing so would provide them with a larger degree of immunity. Therefore, the second rationale offered by the court in McMahon could be fulfilled in future cases if not already satisfied by independent corporate expenditures.

Third, although the Eleventh Circuit recognized the need to consider discipline within this case, it failed to provide an adequate depth to its analysis. There are vast numbers of combined military-civilian operations currently underway in anti-terrorism campaigns across the globe. Government contractors often play a vital role in the decision-making process of such operations. It has become increasingly common to work with and for government contractors in fulfillment of daily missions. Often, it is difficult to determine where the input of one agency ends and another begins, and the consequences of failed operations rarely fall solely on one particular source. As a result, the need for discipline remains equally as strong when government contractors are in action. Had the court in McMahon truly considered the magnitude of this particular rationale, perhaps their decision would have been different.

Although there are several avenues that provide adequate authority to expand the GCD, each with its own merit, the best approach emerges from a combination of All legal doctrines. Derivative sovereign immunity adheres to the principles set forth by the Court in Boyle while recognizing the agency role that contractors play when performing government contracts. Such authority provides a commonsense approach to expanding the GCD.

C. The Extent of Expansion

Although the court in McMahon found it inappropriate to provide derivative immunity based on its analysis of Feres, it did recognize the general need for increased immunity to government contractors beyond the current limits. How much expansion is appropriate? The court explicitly declined to provide that answer. Instead, the Eleventh Circuit provided a detailed analysis of three possible options: (1) "incident to service;" (2) "political question defense;" and (3) "sensitive military judgments." By declining to answer the question, the court essentially threw up a softball, hoping the Supreme Court would finally take a swing as they did in Boyle.

The court in McMahon first addressed the possibility of extending the GCD to All government contracts "incident to service." (99) The "incident to service" defense originated from the "combatant activities" exception, where earlier courts ruled that the FTCA did not apply to "claim[s] arising out of combatant activities ... during time[s] of war." (100) Despite its seemingly broad scope, the "combatant activities" exception still required a products liability claim. (101) The McMahon court acknowledged the potential to expand immunity beyond a products line of cases through contracts deemed "incident to service." However, the broad application of this doctrine hinders its overall ability to provide an appropriate level of immunity to government contractors. As recognized in McMahon, "[A] number of 'incident to service' suit--probably a substantial number--do not implicate sensitive military judgments, because they can be brought by civilians." (102) This option is rejected because immunity under such a broad category invites abuse from contractors seeking unnecessary protection.

The court then rejected expansion through the "political question doctrine." The "political question doctrine" requires the judicial branch to remain silent on issues that pose a distinct political question, enforcing the separation of powers between the military decision-making process inherent in the executive branch and the judicial decision-making power afforded the courts. Several courts have recently been disinclined to approach such sensitive questions by relying on this defense for support. The court in Blackwater Security Consulting, LLC. v. Nordan noted that, "in the past five months, five tort lawsuits against battlefield contractors have been dismissed as nonjusticiable by federal district courts based on the political-question doctrine." (103) Doing so ensures that the two branches remain separate; however, it also leaves many important questions unanswered. Because many cases deserving protection pass based on a lack of a political question, this narrowly defined doctrine misses the mark.

The United States Court of Appeals for the Fifth Circuit recently rejected the political question. Lane v. Halliburton represented a combination several cases, including Fisher v. Halliburton mentioned earlier, All of which Alleged that Kellogg Brown & Root, Inc., a subsidiary of Halliburton, Inc., engaged in fraudulent misrepresentation and negligence in exercising reasonable care of its contracted employees operating in Iraq. (104) The district court granted Defendant's motion for summary judgment based on the political question presented when analyzing the appropriateness of the military's actions. (105) The United States Court of Appeals for the Fifth Circuit reversed, holding that "it may be possible to resolve the claims without needing to make a constitutionally impermissible review of wartime decision-making." (106) Although further discovery might reintroduce the political question defense, the current facts did not warrant summary judgment in favor of Defendant. (107) This holding denotes the potential for courts to begin transitioning away from military discretion and the political question defense, and thus, away from the Supreme Court's Boyle decision. In addition, it further highlights the problems with expanding the GCD through the political question defense.

After dismissing two potential avenues for expanding the GCD, the court in McMahon seemed to reach the proper balance in its analysis of the "sensitive military judgments" doctrine, finding this approach narrower than Feres and broader than the political question doctrine. (108) Despite its convincing content, the Eleventh Circuit expressly declined to determine whether (1) a sensitive military judgment defense existed and (2) to what extent it did exist, based on Presidential Airways' flawed decision to argue solely within the Feres doctrine. (109) Although the court failed to expand the current GCD, its analysis of the sensitive military judgment doctrine provides the appropriate expansion of the GCD in light of the current War on Terror.

The "sensitive military judgment" approach provides derivative sovereign immunity solely to contractors providing judgments described by the court in McMahon as "[t]he complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force." (110) Such judgments could be seen as those considered on the front lines of battle or those arising from actions engaged in at the "tip of the spear." Military officials are not the only ones protected from such judgments. "When a private contractor agent is entrusted with making or executing such sensitive military judgments, courts would be similarly powerless to determine whether the agent appropriately balanced military effectiveness and the safety of the soldiers."t11 The Supreme Court in Boyle also recognized the protection due to government contractors engaging in sensitive military judgments by noting the difficult position the Court would face in "balancing [the] many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness." (112) Although Boyle did not include services-based contracts, the fundamental principle behind the comment remains the same with either form of contract, making it equally applicable in the current context.

There are several benefits to adopting this approach considering the current extent to which government contractors are engaged in military operations. The first several points focus on ensuring a proper risk versus utility analysis. To begin with, the sensitive military judgment approach provides an adequate level of contract inclusion, affording immunity to particular contractors engaged in highly sensitive military activity while refusing protection to contractors assuming lesser amounts of risk. As the number and scope of employment of government contractors performing in hostile territory continues to rise, so must the protection afforded such actors by the federal government. Additionally, the added risk-protection could mitigate corporate fear of litigation, potentially decreasing the overall government price for obtaining such services. Moreover, expanding the GCD to sensitive service-based contracts ensures the risk versus utility analyses inherent in such decisions remain within the appropriate hands and protected from the condemnation of outside parties. Military commanders must feel free to make difficult judgments in times of war. Under this method, such decisions would be protected from unnecessary reproach. Limiting expansion to within this area also protects parties with legitimate claims from being rejected in court through potential abuse of the political question defense. Providing a well-defined scope of protection prevents courts, and corporations, from abusing the GCD.

The second line of reasoning revolves around the contractual issues protected through the expansion of the GCD. To begin with, broadening the GCD to service-based contracts involved in sensitive military judgments highlights the need to create well-defined contracts between parties within the government procurement process by utilizing a performance-based approach. Similar to including technical design parameters in products-based contracts, performance specifications within services-based contracts include particular actions ranging from training requirements of contractors to specific operating procedures within zones of conflict. Protection under the GCD is lost when contracts fail to include such precise specifications within the contract or when contractors deviate from those specific parameters during performance of the contract. Detailed specifications within performance-based contracts also highlight the importance of including periodic review requirements within the particular contract, ensuring an appropriate level of government oversight. Including government inspection requirements Allows the government continuous control over performance of the contract.

The legislative branch is best suited to determine what specific requirements must be included within the contract specifications, highlighting an additional need for modification of the existing Federal Acquisition Regulations to include a "sensitive military contract" category for performance-based contracts. As in products-based cases, extension of the GCD to services-based contracts ensures performance specifications are meticulously defined and strictly obeyed. Failure to adhere to the standards set forth in the contract results in detriment to the corporation, increasing in severity as the magnitude of the violation increases. Penalties in current services-based contracts typically range from negative reports to withholding payments to contract termination. Requiring provisions for these details within the contract specifications could mitigate the potential vulnerabilities inherent during the development stage of such contracts.

As originally noted in Rockwell, this approach creates further incentive for the government and contractor to clearly define the scope of the contract. (113) In addition, providing immunity to contractors engaging in sensitive military judgments increases the level of competition for such contracts. Corporations will be more likely to compete for high-risk contracts if they can approach such projects with assurances that they will receive a certain level of legal protection. Increased competition results in lower contract prices and enhanced contract performance, therefore decreasing risk, increasing utility, and enhancing overall effectiveness.

V. CONCLUSION

Modern warfare is not conducted by the soldier alone. Rather, military contractors, the media, and the federal government also play vital roles. Inclusion of these actors reflects the "remarkable trinity" noted by the famous military strategist Carl von Clausewitz, who defined the principle actors in war as "the people, the army, and the government." (114) Therefore, the question becomes: who must be flexible in a time of war?

Most likely, Clausewitz would have responded that success requires flexibility from All entities contributing to the war effort. Our armed forces must constantly adapt to changing events and circumstances in order to remain one step ahead of the enemy. The judicial branch must also exercise a certain level of flexibility; in this case, through expansion of the government contractor defense to include sensitive services-based government contracts.

The doctrine of derivative sovereign immunity provides the necessary authority for such expansion. Limiting the government's immunity solely to contracted services requiring sensitive military judgments prevents the extension of this doctrine beyond the necessary scope. Expansion of the GCD in this capacity serves to provide clear and concise contractual boundaries, protecting those who adhere to government contracts while leaving those who violate their contractual obligations open to litigation. Therefore, while expansion of sovereign immunity might generally be seen as guarding the blameworthy, doing so here actually results in a greater level of protection for the innocent. Despite the range of opinions throughout the United States surrounding the current war, everyone should agree that this is something worth fighting for.

(1) George E. Hurley, Jr., Government Contractor Liability in Military Design Defect Cases: The Need For Judicial Intervention, 117 MIL. L. REV. 219, 220 (1987).

(2) 19 U.S. 264 (1821). See also Hurley, supra note 1, at 221.

(3) Hurley, supra note 1, at 220.

(4) Yearsley v. W. A. Ross Constr. Co., 309 U.S. 18 (1940).

(5) Id. at 19.

(6) Id.

(7) Id. at 22 (internal citation omitted).

(8) Id. at 20-21.

(9) Hurley, supra note 1, at 244.

(10) Brian Shipp, Torts: Boyle v. United Technologies Corp.: The United States Supreme Court Accepts the Government Contractor Defense, 42 OKLA. L. REV. 359, 362 (1989).

(11) 28 U.S.C. [section] 1346(b)(1) (1997).

(12) Feres v. U.S., 340 U.S. 135 (1950).

(13) Id. at 136-137.

(14) Id. at 146.

(15) Hurley, supra note 1, at 222.

(16) 340 U.S. 543, 556-57 (1951).

(17) Stencel Aero Engineering Corp. v. U.S., 431 U.S. 666 (1977).

(18) Id. at 667.

(19) Id.

(20) Id. at 668.

(21) Id. at 673-674.

(22) Id. at 671 (quoting Feres, 340 U.S. at 143).

(23) Id. at 673 ("To permit (petitioner) to proceed ... here would be to judicially admit at the back door that which has been legislatively turned away at the front door. We do not believe that the (Federal Tort Claims) Act permits such a result." (quoting Laird v. Nelms, 406 U.S. 797, 802 (1972))).

(24) Id. (quoting U.S. v. Brown, 348 U.S. 110, 112 (1954)).

(25) Hurley, supra note 1, at 222.

(26) In re "Agent Orange" Product Liability Litigation, 534 F.Supp. 1046 (E.D.N.Y. 1982).

(27) Id.

(28) United States Department of Veterans Affairs, Information for Veterans, Their Families and Others About VA Health Care Programs Related to Agent Orange, http://www1.va.gov/Agentorange/(last visited Jan. 7, 2009).

(29) Id.

(30) Agent Orange, 534 F.Supp. at 1046.

(31) Id. at 1050.

(32) Id. at 1055.

(33) 704 F.2d 444 (9th Cir. 1983).

(34) Id. at 446.

(35) Id. at 451.

(36) Id.

(37) Id.

(38) Id. at 448-449.

(39) Id. at 450.

(40) Id. at 451-452.

(41) Id. at 452.

(42) Id.

(43) Id.

(44) Id.

(45) Id. at 453.

(46) Boyle v. United Technologies Corporation, 487 U.S. 500 (1988).

(47) Id. at 502.

(48) Id. at 503.

(49) Id.

(50) Id

(51) Id. at 504-505.

(52) Id. at 510.

(53) Id.

(54) Id.

(55) Id. at 512.

(56) Shipp, supra note 10, at 379.

(57) Jamie McIntyre, Defense Secretary Sends Team to Review Iraq Contractors, CNN, Sept. 26, 2007, http://www.cnn.com/2007/POLITICS/09/26/contractor.review.

(58) Peter Grier, Record Number of US Contractors in Iraq, Christian Science Monitor, Aug. 18, 2008, http://www.csmonitor.com/2008/0818/p02s01-usmi.html.

(59) Id.

(60) James Glanz & Alissa Rubin, From Errand to Fatal Shot to Hail of Fire to 17 Deaths, N.Y. TIMES, Oct. 3 2007, available at http://www.nytimes.com/2007/10/03/world/middleeast/03firefight.html.

(61) Id.

(62) Steven R. Hurst, Iraqi Government Seeks Ways to Overturn U.S. Decree Exempting Security Firms from Prosecution, Associated Press, Oct. 24, 2007, http://www.nctimes.com/articles/2007/10/25/news/ nation/13_37_0510_24_07.txt.

(63) S.C. Res. 1790, [paragraph] 17, U.N. Doc. S/RES/1790 (Dec. 18, 2007).

(64) S.C. Res. 1546, [paragraph] 14, U.N. Doc. S/RES/1546 (Jun. 8, 2004).

(65) 63A AM. JUR. 2d Products Liability [section] 1478 (2007).

(66) Id.

(67) Id.

(68) Id.

(69) Grier, supra note 58.

(70) Boyle v. United Technologies Corporation, 487 U.S. at 526.

(71) 390 F.Supp.2d 610 (S.D.Tex. 2005).

(72) Id. at 614-615.

(73) Id. at 615.

(74) Id. at 614.

(75) Id. at 616.

(76) Yearsley, 309 U.S. at 20-21.

(77) Shaw v. Grumman Aerospace Corp., 778 F.2d 736, 740 (11th Cir. 1985).

(78) Id.

(79) Yearsley, 309 U.S. at 23.

(80) Richland-Lexington Airport Dist. v. Atlas Properties, 854 F.Supp. 400, 420 (D.S.C. 1994) (quoting Boyle, 487 U.S. at 512).

(81) In re World Trade Center Disaster Site Litigation, 456 F.Supp.2d 520, 563 (S.D.N.Y. 2006).

(82) Richland-Lexington Airport Dist., 854 F.Supp. at 422-23.

(83) Id. at 422. See also Boyle, 487 U.S. at 505-07.

(84) No. 95 Civ. 11008, 1997 U.S. Dist. LEXIS 14494, at * 17-18 (S.D.N.Y. Sept. 23, 1997).

(85) World Trade Center, 456 F.Supp.2d at 536.

(86) In re World Trade Center Disaster Site Litigation, 521 F.3d 169, 196 (2d Cir. 2008).

(87) 502 F.3d 1331 (11th Cir. 2007).

(88) Id. at 1336.

(89) Id. at 1337.

(90) Id. at 1352-53.

(91) Id. at 1346.

(92) Id. at 1347.

(93) Id. at 1348.

(94) Boyle, 487 U.S. at 510.

(95) Id. at 505-506.

(96) Id. at 505 n.1.

(97) Id. at 1346.

(98) 48 C.F.R. [section] 1.101 (2005).

(99) McMahon, 502 F.3d at 1346-47.

(100) Johnson et al v. United States, 170 F.2d 767, 769 (9th Cir. 1948) (quoting Tort Claims Act, 28 U.S.C.A. [section] 26800) (1948)). See also Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992).

(101) Fisher, 390 F.Supp.2d at 615.

(102) McMahon, 502 F.3d at 1352.

(103) Brief for Petitioner at 25, Blackwater Sec. Consulting, LLC. v. Nordan, No. 06-857 (U.S. Dec. 20, 2006).

(104) 529 F.3d 548, 548 (5th Cir. 2008).

(105) Id.

(106) Id. at 568.

(107) Id.

(108) McMahon, 502 F.3d at 1352.

(109) Id, at 1356.

(110) Id. at 1349 (citing Chappell v. Wallace, 462 U.S. 296, 302 (1983) (quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)).

(111) Id. at 1350.

(112) Boyle, 487 U.S. at 511.

(113) McKay, 704 F.2d at 450.

(114) HARRY G. SUMMERS, JR., ON STRATEGY: A CRITICAL ANALYSIS OF THE VIETNAM WAR, 26-27 (Presidio Press 1982).

Captain Aaron J. Jackson (B.S., United States Air Force Academy (2003)) is a third-year law student at the University of Oklahoma under the Air Force Funded Legal Education Program. Prior to attending law school, Captain Jackson served as Air Force intelligence officer and a contracts manager.