Bixby et al v. KBR, Inc. et al, No. 3:2009cv00632 - Document 492 (D. Or. 2012)
Court Description: OPINION & ORDER: Defendants' Renewed Motion to Dismiss for Lack of Subject-Matter Jurisdiction 340 is Denied. Signed on 8/29/12 by Magistrate Judge Paul Papak. (gm)
Download PDF
<![CDATA[
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ROCKY BIXBY, LAWRENCE ROBERTA, SCOTT ASHBY, CHARLES ELLIS, MATTHEW HADLEY, JESUS BRUNO,COLT CAMPREDON, STEPHEN FOSTER, BYRON GREER, KELLY HAFER, DENNIS JEWELL, STEPHEN MUELLER, VITO PACHECO, JOHN RYDQUIST, KEVIN STANGER, RONALD BJERKLUND, ADANROLANDO GARCIA, BRIAN HEDIN, CHARLES SEAMON, RANDY KEIPER, MATT KUHNEL, DENNIS ROSGEN, AARON ST. CLAIR, KEVIN WILSON, JASON BLAIN, JAMES BORJA, DEVON FIELDS, LESLIE ING, RICHARD LAWRENCE, JAY LOUISIANA, JAMES McGOWAN, DONALD YEARGIN, JASON ARNOLD, and MICHAEL O'RIELLY, Plaintiffs, 3:09-CV-632-PK v. OPINION AND ORDER KBR, INC., KELLOGG, BROWN & ROOT SERVICE, INC., KBR TECHNICAL SERVICES, INC., OVERSEAS ADMINISTRATION SERVICES, LTD., and SERVICE EMPLOYEES INTERNATIONAL, INC., Defendants. PAP AK, Magistrate judge: Plaintiffs Rocky Bixby, Lawrence Robelia, Scott Ashby, Charles Ellis, and Matthew Hadley filed this action against defendants KBR, Inc., Kellogg, Brown & Root Service, Inc., Page I - OPINION AND ORDER KBR Technical Services, Inc., Overseas Administration Services, Ltd., and Service Employees International, Inc. (collectively, the "KBR defendants"), on June 8, 2009. On September 8, 2009, plaintiffs amended their complaint, adding Carlos Avalos, Jesus Bruno, Colt Campredon, Stephen Foster, Byron Greer, Kelly Hafer, Dennis Jewell, Stephen Mueller, Vito Pacheco, John Rydquist, and Kevin Stanger as additional plaintiffs. Plaintiffs amended their pleading a second time on February 2, 2010, adding Ronald Bjerklund, Adamolando Garcia, Brian Hedin, Lewis M31iin, and Charles Seamon as additional plaintiffs. On June 25, 2010, plaintiffs amended their complaint a third time, adding Randy Keiper, Matt Kuhnel, Dennis Rosgen, Aaron St. Clair, and Kevin Wilson as further additional plaintiffs. On October 27,2010, plaintiffs amended their complaint a fourth time, adding Jason Blain, James BOlja, Devin Fields, Leslie Ing, Richard Lawrence, Jay Louisiana, James McGowan, and Donald Yem'gin as fmiher additional plaintiffs, and adding HallibUlion Company and HallibUlion Energy Services, Inc. (collectively, the "HallibUlion defendants"), as additional defendants. Plaintiffs amended their complaint a fifth time on January 10, 2011, adding as additional plaintiffs Jason Amold, Thomas Barella, Daniel Grover, Christopher Wangelin, and Michael O'Rielly. Plaintiffs voluntarily dismissed Barella as a plaintiff in this action on the following day, January 11,2011, and voluntarily dismissed Grover as a plaintiff in this action on February 25, 2011. On June 16,2011, these chambers recommended that the court dismiss the plaintiffs' claims to the extent alleged against the Halliburton defendants for lack of personal jurisdiction, and on July 20,2011, Judge Hernandez adopted that recommendation as his own opinion. The parties stipulated to the dismissal of Avalos, Martin, and Wangelin as plaintiffs in this action on December 16,2011, and to the dismissal ofO'Rielly as a plaintiff on April 4, 2012. In their fifth amended complaint, plaintiffs Page 2 - OPINION AND ORDER allege defendants' liability for negligence and for fraud arising out of plaintiffs' exposure to sodium dichromate and subsequent hexavalent chromium poisoning while stationed as Oregon National Guardsmen in Iraq and assigned to duty at the Qarmat Ali water plant in MaySeptember 2003. Now before the court is defendants' (renewed) motion (#340) to dismiss for lack of subject-matter jurisdiction. I have considered the motion, oral argument on behalf of the pmiies, and all of the pleadings on file. For the reasons set f01ih below, defendants' motion (#340) to dismiss is denied. LEGAL STANDARDS The federal courts are courts of limited jurisdiction. See, e.g., Exxon ""lobi! Corp. v. Allapattah Servs., 545 U.S. 546, 552 (2005), citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). As such, the cOUlis presume that causes of action "lie[] outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party assetiingjurisdiction." Kokkonen, 511 U.S. at 377; see also, e.g., Vacekv. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). A motion under Federal Civil Procedure Rule 12(b)(1) to dismiss for lack of subjectmatter jurisdiction may be either "facial" or "factual." See Safe Air v. JVJeyer, 373 F.3d 1035, 1039 (9th Cir. 2004), citing While v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack on subject-matter jurisdiction, the moving party asserts that a plaintiffs allegations are insufficient on their face to invoke federal jurisdiction, whereas in a factual attack, the moving party disputes the factual allegations that, if true, would give rise to subject-matter jurisdiction. Where a defendant raises a facial challenge to subject-matter jurisdiction, the factual allegations Page 3 - OPINION AND ORDER of the complaint are presumed to be true, and the motion may be granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343 FJd 1036, 1039 n.l (9th Cir. 2003). By contrast, where a defendant raises a factual challenge to federal jurisdiction, "the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment," Safe Airv. JV!eyer, 373 FJd at 1039, citing Savage, 343 FJd at 1039 n.2, and "need not presume the truthfulness ofthe plaintiffs allegations," id, citing White, 227 FJd at 1242. "Defective allegations of jurisdiction may be amended, upon terms, in trial or appellate courts." 28 U.S.C. § 1653. It is improper to dismiss an action based on a defective allegation of jurisdiction without leave to amend "unless it is clear, upon de novo review, that the complaint could not be saved by amendment." Snell v. Cleveland, Inc., 316 F.3d 822, 828 n.6 (9th Cir. 2002), citing Lee v. City ofLos Angeles, 250 FJd 668, 692 (9th Cir. 2001). MATERIAL FACTUAL BACKGROUND Kellogg, Brown & Root Service, Inc. ("KB&RS") entered into Contract No. DACA6303-D-0005 - known as the "Restore Iraqi Oil" or "RIO" contract - with the U.S. Army Corps of Engineers on March 8, 2003, pursuant to which KB&RS would perform tasks as ordered by the U.S. Army Corps of Engineers in connection with efforts to restore the infrastructure underlying the Iraqi oil industry. Combat operations in Iraq began on March 19, 2003. On March 20, 2003, the Corps of Engineers issued "Task Order 3," which govemed the services to be provided by KBR and its subsidiaries at Qarmat Ali and other facilities. Under Task Order 3, the U.S. militaty would declare a given worksite to be "benign" before KBR would Page 4 - OPINION AND ORDER begin operations there. According to the deposition testimony of retired Brigadier General of the u.s. Army Corps of Engineers Robert Crear and of retired U.S. Army Corps of Engineers employee Gordon Sumner, "benign" referred to freedom from combatant activity and from nuclear or chemical weapons, and did not foreclose the possibility of environmental hazards, including hazardous (but not weaponized) chemicals. Support for this interpretation can be found in the provisions of Task Order 3, which suggest that pronouncement of a site as "benign" did not, for example, foreclose the need for enviromnental assessment. It appears from the language of Task Order 3' that KBR was responsible for providing the Corps of Engineers with an environmental assessment of any facility in which they undertook operations. The obligation to provide such assessments included the obligation to report and evaluate any environmental hazards. According to the deposition testimony of General Crear and of Sumner, KBR was not merely permitted but required under Task Order 3 and the RIO contract to take all necessary precautions to safeguard personnel who might potentially be exposed to environmental hazards at worksites, including the wearing of protective gear andlor the closing down of operations at any unsafe site. The RIO contract sets f01ih specific health and safety requirements KBR was required to comply with in perf01ming services under the contract, including Overseas Environmental Baseline Guidance Document 471S.S-G (Mar. 2000), OHSA standards, industly standards, CERCLA requirements, enviromnental assessment requirements, Army safety regulations, and Army Corps of Engineers safety standards. These requirements were never waived. , Moreover, the army briefed the Senate on December 22, 2008, that KBR was required to perfOlm an initial site assessment of Qmmat Ali "in order to establish au environmental baseline." Page 5 - OPINION AND ORDER The RIO contract fUliher provides that the U.S. govemment will indemnify KBR for any claims involving bodily injury or death arising out of KBR's provision of services under the contract. In April 2003, the KBR defendants began operations at Qarmat Ali. In May 2003, the Oregon National Guard was assigned to the Doha Operations Center in Kuwait. Beginning some time after May 1, 2003, the KBR defendants, or some of them, would contact the Doha Operations Center and request assistance with security issues on a regular, perhaps daily basis, in accordance with the provisions of the RIO contract and Task Order 3. On some occasions, members of the Oregon National Guard would receive security assignments to the Qarmat Ali water plant, where they were allegedly exposed to sodium dichromate. In an intemal email, in June 2003 a KBR employee discussed sodium dichromate contamination at Qarmat Ali and recommended that remedial measures be taken, including excavating and placing in drums all contaminated soil. Defendants did not advise the Oregon National Guard of the presence of sodium dic1U'omate at Qarmat Ali until August 12,2003, when KBR issued an official report to the mmy detailing the chemical's presence. The report indicated that sodium diclu'omate at Qannat Ali constituted a serious health hazard. The Qarmat Ali site was shut down September 9, 2003. Plaintiffs are members of the Oregon National Guard allegedly exposed to sodium dichromate at Qmmat Ali in 2003 who have allegedly been harmed by their exposure. DISCUSSION In support of their renewed motion to dismiss for lack of subject-matter jurisdiction, Page 6 - OPINION AND ORDER defendants argue that, in light of "significant legal developments since this court's prior ruling" and the fact that the "factual record is far more developed now than it was in October 2010," the court should dismiss plaintiffs' claims pursuant to the combatant activities exception to the Federal Tort Claims Act and/or to the political question doctrine. Defendants previously moved to dismiss pursuant to precisely these same grounds (and in addition pursuant to the so-called govemment-contractor defense) on April 23, 2010, and on August 30, 2010, I denied that motion. On October 22, 2010, on defendants' motion, I amended my opinion and order denying the motion to dismiss for lack of subject-matter jurisdiction for the sale purpose of certifying that the order was appropriate for immediate appeal pursuant to 28 U.S.C. § 1292(b). On November 2, 2010, defendants appealed my order to the Ninth Circuit, and on December 14, 2010, the Ninth Circuit dismissed defendants' appeal. I incorporate by reference herein the extensive discussion of case law applicable to the combatant activities exception to the Federal Tort Claims Act and to the political question doctrine contained in my Amended Opinion and Order (#110) dated October 22,2010. I. Combatant Activities Exception The Federal TOli Claims Act (the "FCTA") provides a waiver of sovereign immunity for claims against the government sounding in tort. One exception to that waiver is the combatant activities exception, codified at 28 U.S.C. § 26800), which expressly preserves the United States' sovereign immunity in connection with "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war. " 28 U.S.C. § 26800). The Ninth Circuit has specified that he combatant activities exception is to be applied neither strictly nor liberally, but rather according to its plain language. See Johnson v. United Siales, 170 F.2d Page 7 - OPINION Al,,{D ORDER 767,769 (9th Cir. 1948). The Johnson court further clarified that, for the exception to apply, the alleged tortfeasor "must not only have been actually engaged in 'combatant activities' at the time covered by the complaint, but such 'combatant activities' must be shown to have taken place 'during time of war.'" Id. at 769-770. The Johnson court analyzed the exception as follows: 'Combat' connotes physical violence; 'combatant,' its derivative, as used here, connotes pertaining to actual hostilities; the phrase 'combatant activities,' of somewhat wider scope, and superimposed upon the purpose of the statute, would therefore include not only physical violence, but activities both necessary to and in direct connection with actual hostilities. The act of supplying ammunition to fighting vessels in a combat area during war is undoubtedly a 'combatant activity,' but this fact does not make necessmy a conclusion that all varied activities having an incidental relation to some activity directly connected with previously ended fighting on active war fronts must, under the terms of the Act, be regarded as and held to be a 'combatant activity.' To so hold might lead to results which need not here be considered. The rational test would seem to lie in the degree of connectivity. Aiding others to swing the sword of battle is certainly a 'combatant activity,' but the act of retuming it to a place of safekeeping after all of the fighting is over cannot logically be cataloged as a 'combat activity.' Id. at 770 (footnotes omitted; emphasis supplied). In addition to Johnson, in the course of my Amended Opinion and Order (# 11 0) dated October 22, 2010, I discussed, in connection with the combatant activities exception, the Ninth Circuit's opinion in Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992), the Eleventh Circuit's opinion in 2vfGJ'vfahon v. Presidential Ainvays, Inc., 502 F.3d 1331 (11 th Cir. 2007), the D.C. Circuit's opinion in Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), and district court cases including McMahon v. Presidential Airways, Inc., 460 F. Supp. 2d 1315, 1330 (M.D. Fla. 2006), Taylor v. Kellogg Brown & Root Servs., Case No. 09-341, 2010 U.S. Dis!. LEXIS 50610 (E.D. Page 8 - OPINION AND ORDER Va. Apr. 16,2010), Harris v. Kellogg, Brown & Root Servs., 618 F. Supp. 2d 400 (W.D. Pa. 2009), and Lessin v. Kellogg Brown & Root, Case No. H-05-0l853, 2006 U.S. Dis!. LEXIS 39403 (S.D. Tex. June 12,2006). The sole "legal development[)" bearing on the combatant activities exception that defendants identity, other than the cases discussed in my Amended Opinion and Order (#110) dated October 22, 2010, is an amicus curiae brief filed by the United States on January 13, 2012, in connection with a case currently pending in the Fourth Circuit, Al Shimari v. CACIIn!'l, Inc., Case No. 09-1335 (4th Cir.).2 In its amiclis cliriae brief, the United States summarized much the same body of case law I discussed in my Amended Opinion and Order (#110) dated October 22,2010, as collectively providing that: state tort law claims against contractors are generally preempted if similar claims brought against the United States would come within the FTCA's combatant activities exception and if the alleged actions of the contractor and its personnel occurred within the scope of their contractual relationship with the govemment, particularly if the conduct occurred while contractor personnel were integrated with the military in its combat-related activities. 3 On the basis of the United States' position as advocated in its Al Shimari amiclis cliriae brief, defendants argue that I erred in my disposition of defendants' first-filed motion to disrniss for lack of subject-matter jurisdiction by viewing the combatant activities exception too narrowly, 2 In addition, defendants assert that the "recent developments" in political question doctrine jurisprudence they cite in support of their renewed motion to dismiss - such as they are, see infra - have had "ripple effects" on the jurisprudence governing the combatant activities exception. Notwithstanding this assertion, defendants cite no cases indicating that any such "ripple effect[]" has taken place, and my own research does not indicate that recent political question doctrine cases have had any impact on the analytical framework goveming the combatant activities exception. 3 Although the United States took the position in its amiclis curiae brief that such preemption could apply under appropriate circumstances, it urged the Fourth Circuit to find that such preemption was not appropriate on the facts before it, expressly arguing that "[e]ven if all of those circumstances exist" there should be no preemption where a contractor acts unlawfully. Page 9 - OPINION At"lD ORDER specifically by focusing improperly on whether defendants' activities were in direct SUppOli of combat operations rather than on whether the claims would have fallen within the scope of the exception had they been brought against the United States. Defendants' argument is unpersuasive. Whether in connection with a claim brought directly against the United States or a claim brought against a government contractor, the sine qua non of the combatant activities exception remains the same: the exception applies only to tortious conduct undertaken in the course of or in direct connection with combatant activities. The position advocated in United States' Al Shimari amicus curiae brief is not to the contrary (and even if it were, a position taken by the United States in an amicus curiae brief could not properly serve as grounds for rejecting or modifying applicable statutory law or precedential case law). As I found in connection with my previous disposition, operations at Qamlat Ali were in connection with the restoration of infrastructure rather than in connection with combatant activities. In consequence, the combatant activities exception is inapplicable to plaintiffs' claims against the defendants in this action, and the United States' Al Shimari amicus cllriae brief provides no grounds for disturbing my previous denial of defendants' motion. In addition, I find that further grounds exist for rejecting defendants' combatant activities exception argument, beyond those stated in connection with my disposition of defendants' firstfiled subject-matter jurisdiction motion. There can be no serious argument that, under the terms and provisions of the RIO contract, defendants' operations at Qatmat Ali were integrated into combatant activities "over which the military retain[ ed] command authority." Saleh, 580 F.3d at 9. Absent such integration, tort claims against a government contractor do not fall within the combatant activities exception. See id. at 8-9; see also id. at 10 (the combatant activities Page 10 - OPINION AND ORDER exception "does not apply when a performance-based statement afwark is used in a services contract, because the Govemment does not, in fact, exercise specific control over the actions and decisions of the contractor [and] [b]ecause ... by definition, the militmy could not retain command authority nor operational control over contractors working on that basis .... ") (emphasis original). Because the RlO contract and Task Order 3 constitute a performance-based statement of work clearly sufficient to establish that KBR's operations at Qarmat Ali were not under the United States military's command authority or operational control, the combatant activities exception is necessarily inapplicable to plaintiffs' claims as a matter oflaw. Defendants' renewed motion to dismiss is therefore denied to the extent premised on the combatant activities exception. II. Political Question Doctrine Disputes involving certain political questions lie outside the jurisdiction of the federal courts. See Schlesinger v. Reservists Camm. to Stop the War, 418 U.S. 208, 215 (1974); Corrie v. Caterpillar, 503 F.3d 974, 982 (9th Cir. 2007). The Supreme Court has set forth six independent tests for determining whether the presence of a political question deprives the federal courts of jurisdiction over a particular case: Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment ofthe issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various depmiments on one question. Page 11 - OPINION AND ORDER Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence. The doctrine of which we treat is one of "political questions," not one of "political cases." The courts cannot reject as "no law suit" a bona fide controversy as to whether some action denominated "political" exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing. Baker v. Carr, 369 U.S. 186, 217 (1962) (emphasis supplied). The Supreme Court has opined that the six Baker tests are "probably listed in descending order of both importance and certainty." Vieth v. Jubelirer, 541 U.S. 267, 278 (2004). In addition to Schlesinger, Corrie, Baker and Vieth, in the course of my Amended Opinion and Order (# 11 0) dated October 22, 2010, I discussed, in connection with the political question doctrine, the Ninth Circuit's opinion in Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992), the Eleventh Circuit's opinion in lvidviahon v. Presidential Airways, Inc., 502 F.3d 1331 (11 th Cir. 2007), the Fifth Circuit's decision in Lane v. Halliburton, 529 F.3d 548, 554 (5th Cir. 2008), and district court cases including Lessin v. Kellogg Brown & Root, Case No. H-05-01853, 2006 U.S. Dist. LEXIS 39403 (S.D. Tex. June 12,2006), Harris v. Kellogg, Brown & Root Servs., 618 F. Supp. 2d 400 (W.D. Pa. 2009), Norwoodv. Raytheon Co., 455 F.Supp.2d 597 (W.D. Tex. 2006), Flanigan v. Westwind Technologies, Case No. 07-1124,2008 U.S. Dist. LEXIS 82203 (W.D. Tenn. Sept. 15,2008), Al Shimari v. CACI Premier Technology, Inc., Case No. 08-827, 2009 U.S. Dist. LEXIS 29995 (E.D. Va. Mar. 18,2009), Carmichael v. Kellogg, Brown & Root Services, Inc., 564 F.Supp.2d 1363 (N.D. Ga. 2008), Whitaker v. Kellogg, Brown & Root, Inc., 444 F. Supp. 2d 1277 (M.D. Ga. 2006), and Benizlin v. Hughes Aircraft Co., 833 F. Supp. 1486 (C.D. Cal. 1993). The only "legal development[]" in the political question Page 12 - OPINION AND ORDER jurisprudence identified by defendants as having taken place subsequent to my disposition of defendants' first-filed subject-matter jurisdiction motion is the issuance of the Fifth Circuit's decision in Fisher v. Halliburton, 667 F.3d 602 (5th Cir. 2012), a case arising out of the Lane consolidated cases discussed extensively in my Amended Opinion and Order (#110) dated October 22, 2010. In Fisher, the Fifth Circuit concluded that the plaintiffs' tort claims arising out of the deaths of two civilian contractors killed in the course of an attack on a U.S. military convoy in Iraq were preempted under the federal Defense Base Act. In dicta, however, the court stated as follows: Whether this case presents a nonjusticiable political question is a significant issue, particularly since KBR sought to have the role of the United States considered under section 33.004(i) of Texas Civil Practice and Remedies Code not as a party to the litigation, but as a responsible third party. Chapter 33 of that Code allows a defendant to designate a responsible third patty and, once the party is so designated and there is evidence sufficient to submit a question to the jUly regarding the conduct of the pmiy, requires the trier of fact to determine the percentage of responsibility for a plaintiffs harm attributable to the plaintiff, the defendant, any settling persons, and the responsible third pmiy. The designation of a person as a responsible third party or a finding of fault against that person "does not by itself impose liability on the person" and "may not be used in any other proceeding ... to impose liability on the person." Even pmties "who are not subject to the court's jurisdiction or who are immune from liability to the claimant" can be designated responsible third parties under the statute. We do not, however, reach these issues. Fisher, 667 F.3d at 621-622. In addition, defendants note that the pmties have developed the factual record significantly since October 2010, including, defendants argue, by establishing that the U.S. military failed to make a contractually required environmental assessment of Qarmat Ali before directing defendants to begin operations there, that the U.S. military had actual knowledge of the presence of sodium dichromate at Qarmat Ali by not later than June 2003, and that a report issued by the United States Depmtment of Defense Office ofInspector General concluded that Page 13 - OPINION AND ORDER actions and decisions of the u.s. military did not effectively address the environmental hazards at QarmatAli. On the basis of the foregoing, defendants argue that plaintiffs' claims are necessarily barred under the political question doctrine because their resolution would inevitably call into question "sensitive" military decisions. Defendants make this argument without identifYing which of the six Baker fOl111Ulations is inextricable from plaintiffs' claims in light of the recent development of the factual record. Instead, defendants take the position that I erred in my previous disposition by analyzing the six Baker tests in connection only with plaintiffs' claims, without taking into account defendants' anticipated defenses to plaintiffs' claims. Specifically, defendants advise the cOUli that they anticipate opposing plaintiffs' claims in pmi based on the purpOlied contributory negligence of the U.S. military, and characterize the question ofthe military's potential negligence as a "sensitive political question." Taking express account of defendants' anticipated defense provides no grounds for disturbing my previous disposition of defendants' political question argument. As I found in my Amended Opinion and Order (#110) dated October 22,2010, plaintiffs claims do not implicate the first Baker test (a textually demonstrable constitutional commitment of the issue to a coordinate political department) in any degree, because there has been no constitutional commitment of issues raised by plaintiffs' claims to any political department other than the judiciary. That conclusion clearly applies with equal force to defendants' anticipated contributory negligence defense. Similarly, defendants' anticipated defense is without impact on my analysis of the second Baker test (a lack of judicially discoverable and manageable standards), in that traditional principles of tort law provide manageable standards for evaluating whether the Page 14 - OPINION AND ORDER military was materially contributorily negligent, or of the third Baker test (the impossibility of deciding the case without an initial policy determination of a kind clearly for nonjudicial discretion), in that the question whether the military was in any way contributorily negligent in connection with plaintiffs' exposure to sodium dichromate may be resolved without addressing policy detelminations. As to the fourth Bakel' test (the impossibility of undertaking resolution of the claims without expressing lack of the respect due coordinate branches of government), I note that the Ninth Circuit has opined that this test is relevant only where "judicial resolution of a question would contradict prior decisions taken by a political branch in those limited contexts where such contradiction would seriously interfere with impOltant governmental interests." Sarei v. Rio Tinto, PLC, 671 F.3d 736, 756 (9th Cir. 2011), quoting Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995). In light of this gloss on the test, it is clear that a finding that military personnel were negligent in connection with the plaintiffs' exposure to sodium dichromate at Qarmat Ali would not constitute an expression of lack of respect of a coordinate branch of government for purposes of the political question doctrine. The parties agree that the fifth Bakel' test (an unusual need for unquestioning adherence to a political decision already made) is inapplicable to plaintiffs' claims and to defendants' anticipated defense, so I need not address that test here. Finally, defendants' anticipated defense is without impact on my analysis of the sixth Bakel' test (the potential for emball'assment due to multiple pronouncements by various depmtments on one question), in that the anticipated defense creates no significant risk of multiple pronouncements by various depmtments. As I concluded in connection with my disposition of defendants' first-filed subject-matter Page 15 - OPINION AND ORDER jurisdiction motion, because none of the Baker formulations is inextricable from the issues raised by plaintiffs' claims, the political question doctrine does not deprive this court of subject-matter jurisdiction. See Baker, 369 U.S. at 217. Defendants' renewed motion to dismiss is therefore denied to the extent premised on the political question doctrine. CONCLUSION For the reasons set forth above, defendants' renewed motion (#340) to dismiss for lack of subject-matter jurisdiction is denied. Dated this 29th day of August, 2012. \"")" () J'" \( . "'OJ). W} """ (0-1JCU/" C/ Honorable Paul Papal<' United States Magistrate Judge Page 16 - OPINION AND ORDER
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
