Jungle to Desert: Defending the Government Contractor

The federal government enjoys sovereign immunity from tort claims arising from its discretionary actions. Contractors acting at the government's behest are similarly protected through the preemption of certain state law claims by what have become known as the “government contractor defense” and the “combatant activities exception” to the Federal Tort Claims Act, 28 U.S.C. ' 2671, et seq. (“FTCA”). The object of the government contractor defense is to “'prevent the contractor from being held liable when the government is actually at fault.'” In re World Trade Ctr. Disaster Site Litig., 456 F. Supp. 2d 520, 560 (S.D.N.Y. 2006) (quoting Trevino v. General Dynamics Corp., 865 F.2d 1474, 1478 (5th Cir. 1989)). Put simply, a contractor avoids liability when it can successfully claim that “[t]he Government made me do it.” In re Joint Eastern and Southern District New York Asbestos Lit. (Grispo v. Molly-Picher Industries, Inc.), 897 F.2d 626, 632 (2nd Cir. 1990) (“Grispo“). Similarly, the combatant activities exception to the FTCA protects government contractors that supply products or services that are implicated in claims arising directly from military action. See, e.g., United States v. Johnson, 170 F.2d 767 (9th Cir. 1948). These defenses are available to a contractor when the imposition of tort liability would “significantly conflict” with a “uniquely federal interest.” Boyle, 487 U.S. at 507 (quotations omitted). When contemplating the applicability of the government contractor or combatant activities defenses, counsel must focus on the nature and extent of the government's involvement in the conduct giving rise to the claim, whether in establishing specifications for the contractor's equipment or in directing the contractor's services in support of hostile military action. If the government exercised its discretion over the performance of the contract, one of these defenses will likely dispose of the claim.