and in its interpretation of the application of sovereign immunity to k b r mr stickman i find this a really difficult case i mean the more i think about this case the more complex it seems in the more questions i'd be in to ask myself and some of them have been are implicated in in the first question i'm going to ask you because it may or may not drive where we go in this case shouldn't our analysis this time around focus on whether there is a viable theory of liability under state law under a state's law that allows  court to avoid reconsidering military decisions yes your honor they're all right so what is your theory of liability here under what state your state's law under which state law should apply issue was fully developed in decided by the district court what happened there was our k b r attempted to have iraqi law apply the district court applied pennsylvania choice of law principles the federal court sitting here joy and several liability it did isn't there a difference between pennsylvania wall and what tennessee and texas law is in that regard well the issue jordan several liability honors applies to parties  believe your honor that in each of those jurisdictions and this is something that is i'm jogging my memory here from a year and a half ago it's pretty important here isn't it is because that's going to drive not only liability but proofs as well well your honor the district court's in and its first decision on this case and the the various circuits who have exam is the eleventh circuit for example in the understood that k b r fully intends to present the open shared defense and it's said that tort law the the provisions of tort law are more than flexible and to permit havey are to point to the empty chair in for the court and a jury ultimately to determine where liability should fall isn't isn't that a problem for you especially under to the c in texas law no i don't believe it is a problem and here's why your honor i think that if you examine the claims of negligence raised against k b r those claims what are they it is their what is your theory of liability our theory of liability your honor is that on multiple occasions k was called to staff sergeant major this facility we believe there are over a dozen work orders i don't want the facts i want i want stated in legal jargon if you will what your theory of liability then i thought that it was negligently performed the duties assigned to it by the military by failing to complete its work at the standards set by the military are wrong about that the claim that we make is that to the facility to perform work under a work order the record demonstrates that to the extent the cave you are believed that the work was in within the scope of its contract it was permitted to do it if it didn't believe that it was required to approach t arguing facts in support of the specific theory of liability but getting back to inquiries that seem to me to be critical to the political question doctrine question here or its applicability heebie are has argued had they not  all sides of our contract so what plaintiffs have done is have retained two experts electrical engineers and an actual electrical inspector inspector mr stickman if causation is an issue if he be are is able to argue that the military's housing and maintenance decisions were were a proximate cause a proximate cause of sargeant may sets there then how would  are determined compensatory damages how would it estimate compensatory damages without considering military decisions well let me couple to that how how do we do that if we don't know whether we're dealing with a jurisdiction that has joint and several liability or a jurisdiction i'll answer your question in two phases first being the the question of the causation i the causation of this case k b r is free to point to the military as being a factor but your can't hide from the fact that k b r performed work at the facility and paid the art as performing the work in the facility had to do so under a standard reasonably required by general standards of negligence and also we believe the contracts demonstrate specific standards now they can point as a matter of fact the military gave us gave us a variety of parameters that we had to work with it but as the solicitor general of the united states pointed out in the carmichael decision it was a convoy case it's possible for a court to take all of the military decisions and all of the contra contractual restrictions and circumstantial restrictions courts as the various circuits of help both lane the and the mcmahon case the civil justice system is more than well equipped to deal with few we would argue that case is not properly the salve in the continuum of cases where to put a question may apply perhaps a carmike on the side in our case may sit here taylor is on the side where it should not but there's a one distinction it's key and i think that the lead opinion explained this in taylor as opposed to here there was simultaneous action by the military in the very circumstances leading to the plaintiff's injuries in our case the record reflects that when they were given a work order to be our had almost plen circumstances taken as an external given what solicitor general said was k b r negligent that is not a question of state craft constitutionally committed to the halls of congress or the executive that's a question of fact it's a question that would be determined by a battle of do you knowledge that in deciding whether or not this is a political question we have to look at what the defenses are in the cave you are going to pose to your point i do know is that american team by red  this case without knowing what applicable state law is the shouldn't we actually remain in this case to the district who are who allowed the district court to tell us so we know what kind of a liability regime we're proceeding under that will have profound implications for how this case goes forward and if this case gets cool that would be an option i believe if you read the district court's opinion the district court stated that it interpreted it under the guise of pennsylvania law because it had withheld the decision going for what state law applies just start by saying that the appellant's cannot win this appeal by arguing the merits of their claims the whole purpose of the political question doctrine and of combatant activities preemption is to determine whether a court can reach the merits of their claims i agree with you and they cannot but isn't it critical as my previous line of questions suggested for this court to have some refinement of the plaintiff's cause of action or causes of action together with your defenses based upon whatever state law regime they're based upon  i really don't think it matters which state's law applies in this he doesn't matter whether or not we're dealing with joint and several liability proportional liability the reason it doesn't matter your honor is because as district judge fisher pointed out in each of the three states pennsylvania tennessee and texas a defendant can argue that it was not a proximate cause of the plaintiff's injury by arguing that the military was the sole proximate cause and that's our argument here ok so if you argue that and since that's that's what i thought your argument was that you're you're saying it wasn't our fault in simple terms it wasn't our fault it was the military's fault all right yes now for a jury to determine whether or not it was your s kind of turning with due respect is kind of turning the political doctrine upside down it is because and the reason for that your honor if looking at it from the bottom up yes and and at this stage what the court needs to necessity be any second guessing of a military judgment if in fact all the question was was k b r is fault or was there some intervening role that the military played in if they did without question and wisdom but rather just considering that to me that doesn't seem like that's a political question because the question of whether was k b r is fault is a merits question and that's exactly the type of the question first the u s military made the war time judgment to knowingly expose it let me stop you right there and i know what you're going to say but the jury doesn't have to conclude whether or not that was correct or incorrect to make that willing determination look we're going to put the soldiers in hardened barracks that may have some molecular cool malfunctions the jury's not going to have to look at whether that was right or wrong they're just going to have to look to say was a cave your eyes fall or was it the military's decision that led to sergeant massive selectric huge well in the i believe that in the process of determining whether following judge fisher's mycologist fischer's line here then isn't resolution of whether the military was this sole cause simply a factual question and about whether k b r installed the pump or performed maintenance on i mean isn't that all that would have to result no your honor in order in order to determine whether the military was the sole proximate cause a jury would have to probe the military's decisions not offense the political question doctrine that has nothing to do with who installed the pump or what k b r get or didn't do with these work orders that's the merits and this court doesn't have to be convinced that the military was the sole proximate cause in order to affirm district judge fisher's decision what the court needs to do is determine whether our live believe defenses proximate cause ation assumption of risk and contributory negligence necessarily implicate military decisions decisions that the constitution commits to the executive branch your work there that could not turn into not just this will political question yes your honor if if there were a what will first of all i think that it's very important to understand that  back to baker versus carr the political question doctor and is determined on a case by case basis the district court has to conduct a discriminating inquiry into the facts and posture of the case that's exactly what district judge fisher did in her eighty seven page opinion she did that by taking advantage of the evidence when when this court in two thousand and ten dismissed our clowder water appeal the court noted  that this case raises important questions about the scope of the political question dr noncombat neck to these preemption and that a better developed record might lead to a renewed motion to dismiss that's exactly what happened there was full discovery including five thousand some pages of u s military testimony and documents and based on that pretrial evidentiary record an expansive record district judge fisher determined that this cas adjudicated either their claims or our liability defenses without second guessing military judgments to answer your question directly judge charice if there were a situation for example where as a contractor employees were driving around a military base intoxicated and ran over a soldier i'm not sure that that type of situation if the contractor  with implicate a sense of the military judgments but that's quite different from what we have here where we are we have general vine's the commanding general of the multi day m employ yes ok a contractor is not not not k b r but a contractors how's it any different than what the plaintiffs might be arguing all stretched their case a little bit to say a contractor running around these barracks knowing that there are unsafe conditions and doing nothing about it there is a crucial difference and the crucial difference is that everything that kid b r did in this case was squarely within the four corners of the contract  responded to work orders we responded to work orders there and there's an allegation that there was a work order that would have a directed your attention to the water pump on the building in question was a district court know that there was no work order or if that's a factual question but i mean that's a factual question as opposed to it's a political question don if that's exactly correct it would yield some merits question that really doesn't pertain to the political question doctrine but but the the posture this case is such that the district court has granted your motion to dismiss on the basis that this whole dispute is consumed by the political question d yes and our contention is that this case cannot go forward it cannot be adjudicated without running squarely into military judgments that well have to be probed it would be impossible for a jury to determine i guess i want to quarrel with your use of the word squarely i think it best your case may be touching upon military judgments defenses are our proximate cause ation defense is predicated not on what the opponents call external facts but on these key military judgments relating to the use of the hearts and believes relating to the classification political question doctrine because it's considered on a case by case basis and because baker versus carr states to sufficiently that the political question doctrine is not susceptible to alice's because in any of those three states we have the right to defend ourselves from live believed by contending that a nonparty the united states was the sole proximate cause in pennsylvania terms the sole factual cause with regard to combat negativities preemption it's not sovereign immunity as appellants called it it's it's a form of implied conflict preemption and the question  and actually described it as a type of battlefield preemption the other strong case we have is the aiello case which was a southern district of new york case that was a situation where k b r was performing maintenance services of a forward operating base in iraq and the district judge explained why a seemingly ordinary slip and fall case of was covered by combat combatant activities preemption issue i do understand that you are advocating that we adopt the solicitor general's proposed asked yes although our position is that we also meet the preemption formulation set forth in the d c circuit celeb opinion o certainly acted within the scope of the contract in fact the appellants are arguing that we breach the contract so there is no outside the scope of the contract conduct involved here which distinguishes because because of the nature of the activity the contractor was providing in prison interrogation and translation services but in the in the aiello case it was factually physically every moment of the day doing that wouldn't defeated the whole idea behind this lockout contract which was to free up soldiers to be war fighters but there was certainly control although our position is that as in the taylor case control is not a prerequisite to the application of the political question doctrine because as the core point of intel or k b r was nearly insulated from direct military control right thank you determining its motion dismissed as to the say law case raised by mr after my learned on its sale is completely different from this case in that case the d c circuit explained that the contractors were operating in a manner that was fully integrated into the military operations being undertaken at abu ghraib to a point where they were soldiers in all but name if you look at that case and what was happening there it was almost as though the the contractors were borrowed servants of the military themselves and that the military not only controlled the general parameters of what type of work they wanted to do but the absolute manner in which they performed the work simultaneous with the military take this case them in this case the military undoubtedly contract with k b r to perform maintenance services but the record is absolutely clear that one cave you are receives a work order to a service call to come out and perform it unlike say law it wasn't fully integrated into the military source and the military did not retain complete control over the specific manner of performance that was left squarely and entirely in the discretion of k b r as to the contention that we can't look at what the ultimate merits of this case all we can only look at at the political question dr in light of the claims that are raised this court has recognized that under rule twelve b one jurisdictional challenge in many cases it's necessary to look at the merits because the merits are the facts which also have the dispositive effect on the court's jurisdiction and this court explained that in such circumstances because the protections of the twenty six motion aren't there this court is held recently in the s r p versus united states case that the burden that the plaintiff is held to is less than that of trial we believe that in this case the district court fundamentally err in holding the plaintiffs throughout its entire twelve b one standard lower than the what we would require a trial it held us to quote a smoking gun evidence standard a standard that is unheard of in anglo american jurisprudence and that colored the entire way the court conclude before we declare a recess i'd like to acknowledge the presence of our good friend attorney titus who i think is here with the class as he has been in the past am i correct p you tell us something about your friends who have accompanied you here bringing them here attorney titus as a result of your experiences a mood cooler than the wonderful mentoring i'm sure you've received from others including attorney tight is there any of you  possibly about one day becoming a lawyer i have some hands is there anyone here who has been discouraged in any way based on what you saw today from becoming a lawyer and one night i appreciate your candor