Since 2001, the use of private contractors to actively support U.S. military operations has risen to “unprecedented levels.”¹ Numerous injury and death cases have been brought against those contractors. These include cases against private airlines chartered by the government to carry passengers and cargo and companies hired to maintain military aircraft. Under the Feres doctrine, the government has sovereign immunity from liability for injuries to military personnel that arise out of their service.² Furthermore, the statutory immunities established by the exceptions to the Federal Tort Claims Act (FTCA) for discretionary acts and combatant activities apply only to the government and not to contractors.³ Congress has never enacted legislation to shield private contractors from tort liability.⁴

Nevertheless, contractors have, often successfully, advanced defenses to bar tort liability based on the political question doctrine and federal preemption. This article will present an overview of developing law addressing those two defenses.

Preemption Defense

The seminal 1988 Supreme Court decision in Boyle v. United Technologies Corp.⁵ held that a government aircraft contractor could assert a preemption defense to a product design defect lawsuit involving a military aircraft. The plaintiff in Boyle sought damages for the death of her husband, a Marine pilot killed when he was trapped under water and drowned because of the allegedly negligent design of his helicopter's escape hatch.