Amesbury v. CSA, Ltd.

KAREN A. AMESBURY, Executrix of the ESTATE OF BRIAN MARK PATTON,Deceased, and AMY BETH PATTON, his wife, and DAVID MORGAN, Plaintiffs.

v. CSA, LTD. (CSA), COMBAT SUPPORT ASSOCIATES, AECOM GOVERNMENT SERVICES, INC. (AECOM),RESEARCH AND ANALYSIS MAINTENANCE, INC., (RAM), SMI INTERNATIONAL CORP.(SMI), MORGAN LEE HANKS, ALEUT MANAGEMENT SERVICES, LLC, Defendants.

NO. 3:10-CV-1712

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

Dated: February 11, 2013

Judge Kosik

MEMORANDUM OF LAW

On February 7, 2013, we issued a Memo to Counsel (Doc. 178), wherein we ruled on several outstanding motions in this case. In the Memo to Counsel, we indicated that where necessary, we would issue a Memorandum of Law detailing our reasons for the rulings on the motions. This Memorandum of Law addresses some of those motions.

We have before us a defense motion to reconsider a previously filed motion to dismiss pursuant to Rule 12 (b)(1) of the Federal Rules of Civil Procedure based on the grounds that (1) the action is preempted by the "combatant activities" exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Section 2680(j), which excepts "Any claim arising out of the combatant activities of the military or naval forces... during time of war.", and (2) the suit is non-justiciable under the political question doctrine.

The motion to dismiss was first addressed and denied in a Memorandum and Order filed on February 21, 2012 (Doc. 86). At the time giving rise to this suit, whichoccurred in Kuwait, we noted that this country was not at war and that Kuwait was not a war zone. Kuwait was classed as a combat zone by Executive Order only to allow Internal Revenue consideration with respect to income being paid to all personnel¹ . We noted that some evidence of the non-combatant nature of the convoy and parties is supported by the visit of the convoy to a Starbucks facility in the middle of the early morning start of the convoy² . We also noted that neither the military convoy, nor anyone associated with it, has been named a defendant. It was further apparent that, at the time, the named civilian contractors and individual defendants were not engaged in any military support function. It was further noted that at the stage we were considering the motions to dismiss, neither the convoy, nor anyone associated with it, was relevant to the collision underlying this action. Because discovery was not completed, we extended revisiting the issues in a summary judgment motion, if additional facts were developed.

Following the close of discovery, the instant motion (Doc. 148) was filed asking the Court to reconsider its previous decision. (See Doc. 86). In regards to the combatant activities exception to the FTCA, we will not revisit this issue, and we will stand by our previous rulings. As to the political question doctrine, we believe further explanation is warranted, even though we still stand by our previous ruling.

"The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Japan Whaling Ass'n v. American Cetacean Soc., 478 U.S. 221, 230 (1986). In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court outlined a list of factors to be used when determining whether a claim raises a non-justiciablepolitical question. These factors are:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217.

In the motion for reconsideration, counsel references a recent decision filed by the United States District Court for the Western District of Pennsylvania, Harris v. Kellogg, Brown & Root Services, Inc., 878 F. Supp. 2d 543 (W.D. Pa. 2012). In Harris, the Western District Court considered whether it had jurisdiction to hear a case brought by parents, on behalf of themselves and as administrators of a soldier's estate, alleging that the contractor's negligent performance or non-performance of electrical maintenance at an Iraqi military base caused the soldier's electrocution and death. Id. The Western District Court originally denied a motion to dismiss brought by the defendants in that case. The Third Circuit Court of Appeals, at 615 F.3d 398, dismissed an appeal by the defendants without addressing the merits and remanded the case back to the District Court. On remand, the parties were ordered to conduct discovery. The defendants again moved to dismiss and the District Court granted dismissal holding that the action was barred by the political question doctrine and preempted by the combatant activities exception to the FTCA. Id.

After conducting a "discriminating inquiry into the precise facts" of this case as established through a lengthy period of discovery and having heard the parties' arguments outlining the claims and defenses that they intend to present at trial, the Court finds that further adjudication of this dispute will inextricably lead to consideration of sensitive military judgments for which no judicially manageable standards exist. Specifically, further adjudication of this case will require evaluation of the military's decision to continue to house soldiers in hardstand buildings with hazardous electrical systems even though the military was aware that the buildings lacked grounding and bonding and the military possessed specific knowledge that such electrical deficiencies had resulted in electrocutions to military personnel, causing injuries and even deaths, prior to the events of this case.

Id. at 547. (internal citations omitted).

The specific circumstances of Harris revolve around the death by electrocution of a soldier while showering due to negligent or non-existent electrical maintenance on an Iraqi base. Id. The District Court held that the action was barred by the political question doctrine finding that the military presence loomed large over nearly every aspect of the case. Id. at 570. "Specifically, the military exerted control over all aspects of the RPC, including: base security; base life activities; the designation of buildings as living quarters; assignments of soldiers to certain living quarters; the availability of alternative housing and showering facilities; and the terms and conditions of the engagement of government contractors, like KBR, to perform discrete support functions at the base." Id. As the Court pointed out,

In evaluating whether a case presents a political question, a court must "undertake a 'discriminating inquiry into the precise facts and posture of the particular case.'" Further, the case must be evaluated as it would be tried, and both the claims and defenses must be examined to determine if a political question precludes review of the case.

Id. at 571. (internal citations omitted).

The District Court specifically held that the political question doctrine was to be applied in that particular case because there was a textually demonstrable commitment to coordinate political branches, there were no judicially discoverable and manageable standards, and a lack of respect for due coordinate branches.

After conducting a "discriminating inquiry" into the detailed factual record in this case, the Court concludes that further consideration of this case would violate the doctrine of separation of powers between the co-equal branches of our federal government. From this Court's perspective, it would be impossible to evaluate this case without questioning sensitive military policy-based decisions over which no judicially manageable standards can be crafted, and requiring military personnel to appear at trial and defend these wartime policies would offend the constitutional principles we have discussed.

Id. at 593.

In another case referenced by counsel, ...