EDUARDO C. ROBRENO, District Judge.
TABLE OF CONTENTS
I. BACKGROUND ....................................................................806
II. LEGAL STANDARD ................................................................807
III. DISCUSSION ....................................................................807
A. Preemption ................................................................807
1. Field Preemption ......................................................808
a. Applicable Law ....................................................808
b. Analysis ..........................................................808
2. Conflict Preemption ...................................................812
a. Applicable Law ....................................................812
b. Analysis ..........................................................812
B. Political Question Doctrine ...............................................814
1. Applicable Law ........................................................814
2. Analysis ..............................................................815
a. Defendants' Arguments Under the Baker Factors .....................815
b. The Political Question Doctrine's Limited Use .....................816
c. Recent Cases Invoking the Political Question Doctrine in
Government Contracts ............................................817
d. The Political Question Doctrine's Effect on the Government
Contractor Defense ..............................................818
IV. CONCLUSION ....................................................................818
Since the beginning of the Republic, the Federal Government has relied upon private parties to supply military equipment in connection with the national defense. Over the years, the relationship between the Government and these private contractors has led to innumerable court decisions adjudging the rights and duties of not only these parties, but of third parties affected by the relationship as well. This litigation has formed a web of legal principles grounded upon notions of federal supremacy and separation of powers. In this case, Defendants, private parties who contracted with the Federal Government to supply military equipment to the Navy and who are being sued by a former Naval serviceman under state law, seek to disentangle this web by pulling on the strings of preemption and the political question doctrine.
For the reasons that follow, these efforts are unavailing.
Plaintiff Alan Donn ("Plaintiff") brought suit against a variety of defendants for injuries sustained from asbestos exposure. Plaintiff was diagnosed with malignant mesothelioma and subsequently brought suit for damages against Defendants CBS
Defendants filed the instant Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), contending that the Court lacks subject matter jurisdiction over Plaintiff's claims. Plaintiff responded to the motion, and the Court held oral argument. The motion is now ripe for disposition.
Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) arguing that the Court lacks subject matter jurisdiction. In particular, Defendants argue that Plaintiff's cause of action is preempted, and, in the alternative, argue that this case presents a non-justiciable political question. See Defs.' Opening Br. 1-2. When assessing these arguments, as they are both factual attacks on the Court's subject matter jurisdiction, the Court may look beyond the pleadings to consider whether jurisdiction is proper in this Court. See Cestonaro v. United States, 211 F.3d 749, 752 (3d Cir.2000). Plaintiff has the burden to prove that subject matter jurisdiction exists. Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir.2009).
The Court first addresses Defendants' argument that Plaintiff's claims are preempted. Secondly, the Court considers Defendants' alternative argument that this case presents a non-justiciable political question.
The Supremacy Clause provides that the laws of the United States "shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. Out of this command, Congress may preempt state action in three ways: "State action may be foreclosed by express language in a congressional enactment, by implication from the depth and breadth of a congressional scheme that occupies the legislative field, or by implication because of a conflict with a congressional enactment." Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001) (internal quotation marks and citations omitted).
Express preemption requires that a federal law's language expressly displace state law. Kurns v. A.W. Chesterton, Inc., 620 F.3d 392, 395 (3d Cir. 2010), cert. granted on other grounds, ___ U.S. ___, 131 S.Ct. 2959, 180 L.Ed.2d 244 (2011). Additionally, implied preemption may be found in two scenarios: either through (1) field preemption, when the federal regulation is so sweeping that no state law can occupy that field, or (2) conflict preemption when either complying with federal and state law simultaneously is impossible, or if complying with state
In this case, Defendants do not contend that express preemption is present. Rather they rely upon implied preemption because either federal law and regulations occupy the field of Plaintiff's state tort law failure to warn claims,
Defendants argue that the federal regulation of national defense is pervasive, and the federal interest in national defense dominates over state law. Thus, there is "no room for state law of any kind." Defs.' Opening Br. 38. Specifically, Defendants urge upon the Court that as the war powers
Field preemption is the most sweeping of the three preemption doctrines, displacing all state laws within a particular area of federal interest. When determining whether this doctrine applies, the Court must focus on whether the intent of the federal law was to displace an entire body of state law in that field. See Altria Grp., Inc. v. Good, 555 U.S. 70, 76, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008). Moreover, the Court considers "the intended purpose of the federal regulatory scheme, and what impact any state regulation would have on that scheme." Kurns, 620 F.3d at 395. In areas where states have traditionally legislated there is a presumption against preemption, in areas that are uniquely federal, however, such presumption has less force. United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000).
Field preemption analyses require courts to carefully balance the interests of the Federal Government and those of the states. The inquiry is framed by federalism concerns and grounded in Supremacy Clause jurisprudence. As its name suggests, under the Supremacy Clause, federal law supersedes state law in areas where federal and state interests clash or overlap. Even in areas that are of a unique federal interest, such as this case, which implicates national defense concerns, there must be some clear and manifest purpose from the Federal Government to preempt state law. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). Any analysis of implied preemption in the context of Federal Government procurement of military equipment from private contractors to be used in connection with the national defense — whether it be field or conflict preemption — must begin with Boyle v. United Technologies Corp., 487 U.S. 500, 505-06,
Boyle involved claims of negligent design of a military helicopter escape hatch that allegedly caused the death of the military pilot after the helicopter crashed off the Virginia coast. Id. at 502, 108 S.Ct. 2510. The military contract pursuant to which the defendants designed the helicopter called for the escape hatch to open out. Id. One of Boyle's tort theories was that had the escape hatch opened inward — and thus the water pressure not restricted the hatch's opening — the decedent would have been able to escape. Id. at 503, 108 S.Ct. 2510. The issue before the Supreme Court was whether private contractors acting pursuant to specifications in a government contract could assert a defense (generally referred to as the government contractor defense) to immunize them from suit.
The Supreme Court recognized that the procurement of military goods was a uniquely federal interest within the military's discretion. Id. at 507, 108 S.Ct. 2510. And because this procurement was within the military's discretion, had the suit been brought against the United States, the discretionary function exception to the Federal Tort Claims Act ("FTCA") would have barred all claims for torts arising out of the procurement of military goods. Id. at 511, 108 S.Ct. 2510. The Supreme Court held that private contractors could enjoy the same tort immunity as the Government under the FTCA.
Important, here, is that the Supreme Court recognized that state tort law would be displaced only in limited circumstances, rejecting the claim for sweeping preemption of all claims by servicemen and women against government contractors. See id. at 509, 108 S.Ct. 2510. To that end, the Supreme Court expressly rejected basing preemption on an extension of the Feres doctrine,
Nor do Defendants point to any congressional enactment that allows the Court to infer an intent to preempt the field of state tort law pertaining to failure to warn of asbestos's dangers on Naval ships.
Despite this congressional silence, Defendants argue that in the case of Navy
To be sure, courts find field preemption in cases where "federal regulation [is] so pervasive [for] courts as to make reasonable the inference that Congress left no room for the States to supplement it." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). That is, in cases involving an area over which the Federal Government has exclusive control, such as foreign policy, the Supreme Court has sometimes found preemption absent some clear indication from Congress that it intended to preempt the field. See Am. Ins. Assn. v. Garamendi, 539 U.S. 396, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003); Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000).
Yet, such cases do not affect the result here. For example, in Crosby, the Supreme Court struck down a Massachusetts law that prevented state entities from conducting business with companies that did business in Burma because Congress had already enacted a law sanctioning Burma for its human rights violations. Crosby, 530 U.S. at 366-67, 373, 120 S.Ct. 2288. The state law was enacted to, in effect, sanction Burma. Id. at 368, 120 S.Ct. 2288. Sanctioning a foreign nation is a decidedly federal power, and the Massachusetts law, which undermined this power, was preempted. Id. at 375-76, 120 S.Ct. 2288.
In contrast, this case involves a well recognized state function — tort law in the context of personal injury — not a specific state law directed at a decidedly federal power. In cases where a state has demonstrated "traditional competence," but the state law affects an important federal interest, such as foreign relations, the Supreme Court has stated that field preemption is generally inappropriate and that "it might make good sense to require a conflict, of a clarity or substantiality that would vary with the strength or the traditional importance of the state concern asserted." Am. Ins. Ass'n, 539 U.S. at 420 n. 11, 123 S.Ct. 2374; cf. Hines v. Davidowitz, 312 U.S. 52, 75, 61 S.Ct. 399, 85 L.Ed. 581 (1941) (Stone, J., dissenting) ("The Judiciary of the United States should not assume to strike down a state law which is immediately concerned with the social order and safety of its people unless the statute plainly and palpably violates some right granted or secured to the national government by the Constitution or similarly encroaches upon the exercise of some authority delegated to the Untied States for the attainment of objects of national concern.").
While Defendants proffer affidavits from former Naval officers concerning possible friction between Navy regulations and state law duty to warn that impacts the chain of command structure in the Navy, even assuming such affidavits are correct, the evidence is simply insufficient to "plainly and palpably" show that the state
At bottom, without sufficient evidence that locates the intent to preempt state law within the Constitution, by action of Congress, or some other federal policy to displace the entire field of state tort law with respect to Plaintiff's claims (i.e., asbestos exposure claims by servicemen aboard Naval vessels), this case falls within the Boyle limiting principle.
As an alternative to their field preemption argument, Defendants contend that the Court lacks subject matter jurisdiction because the state tort claims at issue here — failure to warn — conflict with the concept that the "Federal Government (specifically, the President and Congress) exercise plenary control in the exercise of war powers, including military operations and the procurement and utilization of whatever goods and materials the Federal Government deems necessary to those operations." Defs.' Opening Br. 41.
The doctrine of conflict preemption generally arises in two circumstances. First, when there is actual direct conflict between federal law and state law. See Boyle, 487 U.S. at 504, 108 S.Ct. 2510. Second, even if there is no direct conflict, there is conflict preemption when "state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). While in most cases there is a presumption against preemption, in cases that involve a uniquely federal interest — such as this case — this presumption has less force. See Locke, 529 U.S. at 108, 120 S.Ct. 1135. Moreover, in such cases, the conflict between state and federal regulations need not be as sharp as when the conflicting federal regulation is not one of uniquely federal interest. See Boyle, 487 U.S. at 507-08, 108 S.Ct. 2510. Nonetheless, "conflict there must be." Id. at 508, 108 S.Ct. 2510.
Just like under field preemption, in the case of a government procurement contract, Boyle controls. Defendants, however, suggest Boyle does not foreclose the Court from finding conflict preemption under the specific facts of this case. In support of their argument, Defendants point to testimony of Admiral Horne, Dr.
Yet, Defendants argue that the Court should "move beyond the government contractor defense" announced in Boyle and hold that the Court lacks subject matter jurisdiction over claims by servicemen and women against the Navy for its decisions regarding turbine design and use of asbestos insulation. Id. at 50. In support, Defendants rely upon Saleh v. Titan Corp., 580 F.3d 1 (D.C.Cir.2009), where the plaintiffs were Iraqi citizens who alleged that the defendants participated in torture during interrogation along with the military at the Abu Ghraib military prison. Id. at 2. The military employed the defendants because there was a shortage of military personnel trained to perform these "critical wartime tasks." Id. It was claimed that the military outlined the protocol and techniques allowed for interrogations and the defendants assisted the military in interrogating prisoners. Id. The plaintiffs sued the defendants for the alleged torts committed upon them by the defendants during their interrogations. Id.
The court in Saleh held that federal law preempted the plaintiffs' state tort law claims, based upon the combatant activities exception to the FTCA.
Saleh is not helpful to Defendants in this case. In Saleh, the defendants performed a uniquely military service — interrogation at a military prison during wartime. In essence the Saleh defendants had stepped directly into the shoes of military personnel. Here, by contrast, Defendants are not involved in military
Defendants urge the Court to recognize that cases involving design of equipping combat vessels and preparing servicemen and women for battle preempts state law tort claims because such cases are "inextricably intertwined with the over-riding objective that the Navy be ready to successfully fight wars and deter enemy aggression in the interests of national defense." Defs.' Opening Br. 44. Specifically, the Navy's strong interest in controlling the warnings used in connection with military equipment.
Defendants have failed to provide sufficient evidence for the Court to find that the Government's interest here is different than that in Boyle. Indeed, the Supreme Court explained that "designing military equipment ... is assuredly a discretionary function...." Boyle, 487 U.S. at 511, 108 S.Ct. 2510. Moreover, such design "involves not merely engineering analysis but judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness." Id. (emphasis added). These policy interests are equally forceful here.
Finally, Defendants' proposed expansion of Boyle is a prescription for a voyage to terra incognita. As Judge Garland stated in his Saleh dissent, "[o]nce we depart from the limiting principle of Boyle, it is hard to tell where to draw the line." Saleh, 580 F.3d at 23 (Garland, J., dissenting). In actuality, Defendants' request for the Court to move beyond Boyle under the doctrine of conflict preemption, without a limiting principle, would blossom into full field preemption.
Thus, in light of Boyle, this Court finds Defendants' argument that federal law preempts Plaintiff's failure to warn claims without regard to the three-prong Boyle test unavailing. And, the Court holds that neither field nor conflict preemption applies to Plaintiff's claims of failure to warn of the dangers of asbestos.
In addition to Defendants' argument that Plaintiff's claims are preempted, Defendants also argue that Plaintiff's claims present a non-justiciable political question.
The political question doctrine has deep roots in American jurisprudence. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803) ("Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."). At its core, "[t]he 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. Am. Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). Yet, "the fact that the resolution of the merits of a case would have `significant political overtones does not automatically invoke the political question doctrine.'" Khouzam v. Attorney Gen. of U.S., 549 F.3d 235, 249-50 (3d Cir.2008) (quoting I.N.S. v. Chadha, 462 U.S. 919, 942-43, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983)). Indeed, the Court must be vigilant to not construe a "political case" as a "political question." Baker v. Carr, 369 U.S. 186,
The modern treatment of the political question doctrine begins with Baker v. Carr. In that case the Supreme Court held justiciable claims of malapportionment of state legislatures that violate the Equal Protection clause.
Baker, 369 U.S. at 217, 82 S.Ct. 691. A tangential relationship between the merits of a case and one of these six factors is insufficient for the Court to find that there is a political question; the factor must be "inextricable from the case at bar." Id. at 217, 82 S.Ct. 691.
Defendants contend that the Court will necessarily have to rule on the prudence of the Navy's use of asbestos. See Defs.' Opening Br. 54. Moreover, Defendants argue that the Court's adjudication of whether the Navy would have allowed or not allowed warnings — a key inquiry into the government contractor defense under Boyle — is non-justiciable. See id. at 55-57. Indeed, Defendants argue that any adjudicating of this suit requires the Court to second guess the Navy and its warning policies. See id.
Plaintiff, on the other hand, argues that this suit is an ordinary tort suit between two private parties. See Pl.'s Br. 71. As such, the Court need not inquire or second guess any Naval policy on the use of asbestos. See id. at 72. Nor does the Court have to second guess the Navy's warning procedures. See id. All the Court — and the fact-finder — must do is determine what the Navy did or did not allow with respect to warnings and rule on the liability of Defendants pursuant to well-defined state tort law principles. See id.
Defendants invoke four of the Baker factors in support of their argument that Plaintiff's claims are non-justiciable. In particular, Defendants argue that Plaintiff's claims are inextricable with any one of the following factors:
Baker, 369 U.S. at 217, 82 S.Ct. 691. Distilled to their essence, all four Baker factors ask whether, in deciding the case, the Court will pass judgment upon the policies and procedures of the Executive or the Legislature. In the case at hand, the Court may perform its constitutional role without offending the doctrine of separation of powers.
Adjudicating whether Defendants were required to warn of the dangers of asbestos in connection with the supply of propulsion turbines to the Navy for use in Navy warships does not implicate a political question. Plaintiff's claims do not challenge the Navy's wisdom in deciding to use asbestos, nor do they seek to second guess the Navy's judgment as to the wisdom or propriety of its warning policy. Moreover, if successful, the claims will not make the Navy liable for any injury.
Rather, this action is between private parties based on well defined tort law principles. It does not involve a challenge by a coordinate branch to another branch's decision. It is not, in short, the type of struggle for inter-branch supremacy that the doctrine of separation of powers and its corollary, the political question doctrine, seeks to avoid.
To be sure, a judicial inquiry into what Navy policy was (in connection with equipment warnings) at the time Plaintiff served on a Navy vessel may be required. Yet, this inquiry does not implicate the wisdom and soundness of the Navy's policies or procedures. The issue here is what the policy was with respect to warnings, not what it might (or should) have been. Thus, none of the four Baker factors Defendants cite to are inextricable with the merits of Plaintiff's claims.
Even beyond the analysis of the Baker factors, the limited use of the political question doctrine counsels in favor of finding justiciability in this case. The invocation of the political question doctrine, and indeed a court's holding that a case presents a political question, does not call for a jurisdictional assessment of whether there is a "case or controversy" within the meaning of Article III. See Baker, 369 U.S. at 198-99, 82 S.Ct. 691; Erwin Chemerinsky, Constitutional Law: Principles and Policies 136 (4th ed.2011).
Rather, courts find a political question when adjudication of the case causes concerns over, inter alia, the separation of powers. Baker, 369 U.S. at 210, 82 S.Ct. 691; cf. Chemerinsky, supra, at 133-36 (summarizing arguments for and against the political question doctrine and questioning whether it is a constitutional or prudential doctrine). This abdication, however, is a limited one — courts have found political questions in only a few discrete areas including issues related to "the republican form of government clause and the electoral process, foreign affairs, Congress's amendments, instances where the federal court cannot shape effective equitable relief, and the impeachment process." Chemerinsky, supra, at 133 (collecting cases).
The only area arguably relevant to this case is that of foreign affairs. And, in that area the Supreme Court has found non-justiciable claims in only limited areas and special circumstances. See United States v. Belmont, 301 U.S. 324, 330, 57 S.Ct. 758, 81 L.Ed. 1134 (1937) (finding a political question on whether the Executive recognized a foreign government); Goldwater v. Carter, 444 U.S. 996, 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (finding a political question on the process for ratification or
While indeed some lowers courts have recently held claims against government contractors in the recent Iraq war non-justiciable, those cases are inapposite from this case. For example, in Carmichael v. Kellogg, Brown & Root Services Inc., the Eleventh Circuit found a political question pertaining to a government contractor's negligence. 572 F.3d 1271, 1296 (11th Cir. 2009). In that case, the plaintiff was an Army soldier that was part of a convoy of vehicles transporting fuel in Iraq. Id. at 1278. The defendant's employee was driving one of the vehicles and crashed, causing injuries to the plaintiff. Id. The court there held that adjudication of the case would require inquiry into sensitive military judgments because, while the defendant's employee was driving the tanker, the military exclusively controlled all aspects of the convoy including speed, route, how much fuel to transport, and the distance between vehicles. Id. at 1281-82.
Also, the Fourth Circuit recently held that a tort claim against a government contractor presented a political question. See Taylor v. Kellogg, Brown & Root Servs. Inc., 658 F.3d 402, 412 (4th Cir. 2011). In that case, the plaintiff, a Marine, was electrocuted and injured while installing a electronic wiring box on a military base in Iraq. Id. at 403-04. In particular, the plaintiff was seeking to add a power generator to the Tank Ramp
There, the court held that an adjudication of the plaintiff's negligence claims against the defendant presented a political question because the defendant asserted a contributory negligence defense against the plaintiff for acting outside of military policy. Id. at 412. Because of this defense, the court concluded that it would necessarily have to decide "whether back-up power should have been supplied to the Tank Ramp area," clearly invoking a political question. Id. (quotations omitted).
These cases traverse a common thread different from this case. They require the courts to second guess military operational judgment, whether that be the speed and timing by which to send a military convoy through Iraq, or the wisdom of the military's procedures for electrical repairs. Indeed, adjudicating the claims in Carmichael and Taylor would require the Court to determine in hindsight whether the military policy was correct. In turn, this adjudication would necessarily affect future
Finally, finding that Plaintiff's claims present a non-justiciable political question would upset years of jurisprudence in asbestos litigation and also call into doubt the applicability of Boyle to government procurement contracts.
In sum, the Court's adjudication of Plaintiff's claims against Defendants for failure to warn of the dangers of asbestos are justiciable. While there may be political overtones to the Navy's choice of policies as to what warnings were permitted, if any, the Court may adjudicate the instant controversy without second guessing these judgements, thus staying clear from the province of the Executive or Legislature.
For the reasons set forth above, Defendants' motion will be denied. An appropriate order shall follow.
AND NOW, this 1st day of February, 2012, it is hereby ORDERED that Defendants-CBS Corporation's and General Electric Company's Motion to Dismiss (ECF No. 33) is DENIED.
AND IT IS SO ORDERED.
Indeed, "our system of precedent or stare decisis is ... based on adherence to both the reasoning and result of a case, and not simply the result alone." Casey, 947 F.2d at 692. "If the rule were otherwise, the Supreme Court's `limited docket' would limit the Court's authority only to the `handful of cases that reached it.'" Powell, 109 F.Supp.2d at 384 (quoting Planned Parenthood v. Casey, 947 F.2d 682, 691 (3d Cir.1991), aff'd in part and rev'd in part on other grounds, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)). Thus, in this case, the Court must apply not only the holding of Boyle but also the balancing of federal interests and state interests that the Supreme Court made in that case. In fact, since Boyle, the Supreme Court stated that, in terms of preemption cases, Boyle is a limited circumstance where federal law will displace state tort law. See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 74 n. 6, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (explaining that Boyle was a "special circumstance" in the case where the "government has directed a contractor to do the very thing that is the subject of the claim"). Thus, it is clear that Boyle stands for the rule that displacement of state law in favor of the federal interest in government procurement is a limited and "special circumstance." Id.
