Aiello v. Kellogg

• Decision Date: 31 March 2011
• Docket Number: No. 09 Civ. 7908 (PKC).,09 Civ. 7908 (PKC).
• Citation: 751 F.Supp.2d 698
• Parties: Richard AIELLO, Plaintiff,v.KELLOGG, BROWN & ROOT SERVICES, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

751 F.Supp.2d 698

Richard AIELLO, Plaintiff,

v.KELLOGG, BROWN & ROOT SERVICES, INC., Defendant.

No. 09 Civ. 7908 (PKC).

United States District Court, S.D. New York.

March 31, 2011.

Stephen B. Roberts, Tabak, Mellusi & Shisha, New York, NY, for Plaintiff.Charles E. Dorkey, III, McKenna Long & Aldridge, New York, NY, Raymond B. Biagini, Lisa M. Norrett, Timothy K Halloran, McKenna Long & Aldridge LLP, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

P. KEVIN CASTEL, District Judge:

Plaintiff Richard Aiello alleges that he was injured when he fell to the ground in a toilet facility within Camp Shield, a forward operating base in Iraq. Aiello, who at the time of the injury was a civilian contractor, states that his injuries were caused by the negligence of defendant Kellogg, Brown & Root Services, Inc. (“Kellogg”), a private service contractor. Specifically, he claims Kellogg was responsible for the negligent construction, renovation, repair and/or maintenance of the latrine facility. Kellogg provided support services at Camp Shield pursuant to a Logistics Civil Augmentation Program (“LOGCAP”) contract.

The defendant has moved to dismiss plaintiff's claims or, alternatively, seeks summary judgment dismissing these claims, on four separate grounds. First, that plaintiff's suit is barred by the political question doctrine, because the military had plenary control over Camp Shield and adjudication of the claim would require this Court to examine judgments and decisions entrusted to the military in a time of war. Second, that plaintiff's suit is preempted by federal policies that underlie the combatant activities exception to the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. § 2680(j). Third, that Kellogg is immune from suit under the principles of “derivative sovereign immunity.” Fourth, that the claim is barred under the Defense Production Act of 1950 the (“DPA”), 50 U.S.C. app. §§ 2061–2172, because Kellogg's work was performed pursuant to a “rated order” contract under that statute, and section 707 of the DPA immunizes contractors from liability for damages for actions in the performance of a “rated order” contract. This Court concludes that the political question doctrine does not render the claim non-justiciable. It also concludes that tort claims against government contractors arising out of combatant activities are preempted by the unique federal interests that underlie the combatant activities exception to the FTCA. It is not necessary to reach defendant's other arguments. Accordingly, summary judgment for the defendant will be granted.

BACKGROUND

Camp Shield is a United States military base located approximately three miles outside the “Green Zone” in Baghdad, Iraq, near the district called Sadr City. It is classified as a “forward operating base.” (Deposition of Major Frederick Allen Hockett, Jr. dated March 30, 2010 (“Hockett Dep.”) at 7.) In 2008, plaintiff was employed by DynCorp International, a private service contractor, as a police advisor and was assigned living quarters in building 9 at Camp Shield. (Declaration of Richard Aiello dated June 16, 2010 (“Aiello Decl.”) ¶¶ 2–3.) Plaintiff alleges that on or about May 18, 2008, he fell while in a toilet facility in Building 9 on the camp premises, and was seriously injured. (Complaint ¶ 10). Plaintiff alleges that defendant Kellogg was negligent “in that the bathroom was improperly designed and constructed so that persons had to stand on loose tiles to use the bathroom; that defendant was further negligent in that its agents, servants and/or employees, washed the aforesaid tiles and failed to properly post a sign or warn persons of said wet and slippery condition, all of which constituted a danger, menace, hazard, nuisance and trap.” ( Id. at ¶ 11.)

Kellogg is a private service contractor, retained by the United States military to perform operations and maintenance (“O & M”) services at Camp Shield, as well as at other military bases in Iraq. (Declaration of Mike Mulholland dated December 11, 2009 (“Mulholland Decl.”) ¶ 8.) These services are performed pursuant to a government contract, called the Logistics Civil Augmentation Program (“LOGCAP”) Contract No. DAAA09–02–D–0007 (the “LOGCAP Contract”). ( Id. ¶ 3.) That contract is administered through various “Task Orders” issued by the United States Army, and Task Order 139 directs Kellogg to provide O & M services to various bases in Iraq, including Camp Shield. ( Id. ¶ ¶ 7–8.)

Camp Shield acts as “a refit, re-arming point, and a living area” for U.S. and coalition military forces. (Hockett Dep. at 7.) Activities at Camp Shield include supporting the transition of the Iraqi government, training Iraqi police officers, and providing internal security in Iraq. ( Id. at 8–9.) During the relevant time period, the base operated under a “uniform posture” threat level ranging from (1) to (4). At threat level (1), military and contractor personnel were required to have personal protective equipment, such as Kevlar vests and helmets, reachable within 10 minutes. At the highest level (4), body armor and helmets had to be worn indoors and outdoors at all times. ( Id. at 25–28.) During 2008, the uniform posture was raised to level (3) on several occasions, requiring military and contractor personnel to wear their body armor and helmets outdoors at all times. ( Id. at 90.) Whenever personnel left the base, they were at uniform posture (4). ( Id. at 27.) Around Easter 2008, Camp Shield was subject to three incidents of mortar and rocket attacks. ( Id. at 16–17.) In one of those attacks, a round landed inside the Camp and damaged several trucks and housing units. ( Id. at 17–18.) The base was protected by military personnel and armed civilian security contractors, who set up observation towers in a perimeter around the base. Entry to the base was secured, as the base was accessed through guarded entry control points. ( Id. at 28–29.) The base housed approximately two thousand personnel, of which five hundred were soldiers and one thousand five hundred were contractors. ( Id. at 13–14.) The majority of those contractors, over nine hundred, were armed security contractors largely responsible for the defense of the base. ( Id. at 13–14, 28.) Additionally, daily patrols of military police or security contractors operated out of the base, and these teams were often involved in combat. ( Id. at 93–94, 104–105.)

A group of military personnel called the “Mayor's Cell” controlled base operations, including life support functions at the Camp such as living, housing and dining facilities. ( Id. at 35, 37.) From March 2008 to January 2009, Major Frederick Allen Hockett, Jr., was the “Mayor,” the head of the Mayor's Cell. ( Id. at 7.) While deployed at Camp Shield during the relevant time period, Major Hockett received combat pay. ( Id. at 25.) The Mayor's Cell monitored the work and performance of service contractors such as Kellogg. ( Id. at 59.) To perform major renovation projects, Kellogg would generate of list of needed projects which the Mayor's Cell would prioritize based upon budgetary and other considerations. (Declaration of Tommy Pauley dated April 17, 2010 (“Pauley Decl.”) ¶ 7.) After a major renovation, the Mayor's Cell would complete a quality completion report. (Hockett Dep. at 63.)

The building in which plaintiff was allegedly injured, Building 9, was a “hardstand” building, meaning it existed before the arrival of the military. ( Id. at 41, 67–68.) The record is not clear as to whether Kellogg performed any major renovation work in Building 9, but it is undisputed that Kellogg was responsible for O & M at that building.

DISCUSSIONI. Legal Standard

Kellogg moves to dismiss the complaint under Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P., or, in the alternative, a grant of summary judgment dismissing Aiello's claims pursuant to Rule 56, Fed.R.Civ.P.

The political question doctrine is more properly characterized as a “justiciability” question than as a question of subject matter jurisdiction. See Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Nevertheless, it is properly raised on a motion under Rule 12(b)(1). See Republic of Colombia v. Diageo North America Inc., 531 F.Supp.2d 365, 381 (E.D.N.Y.2007) (defenses going to justiciability or abstention are properly raised by 12(b)(1) motion) (citing United States v. Portrait of Wally, 99 Civ. 9940, 2002 WL 553532 at *6 (S.D.N.Y. Apr. 12, 2002)).

A motion to dismiss under Rule 12(b)(1) is decided under the same standards as a motion to dismiss for failure to state a claim under Rule 12(b)(6). Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.2003) ( “[T]he standards for dismissal under 12(b)(6) and 12(b)(1) are substantively identical.”). However, “[i]n resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) a district court may consider evidence outside the pleadings.” Morrison v. National Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008).

Kellogg raises three other defenses: preemption, derivative sovereign immunity, and a provision of the Defense Production Act. These defenses are raised by a motion to dismiss the complaint under Rule 12(b)(6), Fed.R.Civ.P. or, in the alternative, for summary judgment pursuant to Rule 56. Because Kellogg's motion includes matters outside the pleadings, and Aiello has responded to Kellogg's motion with declarations and documents that expand upon the allegations in the complaint, the Court concludes that Kellogg's motion is properly resolved under Rule 56. See Rule 12(d). In reaching this conclusion, the Court notes that Aiello does not contest the procedural form of Kellogg's motion and has not stated any need for further discovery to support his opposition in his submissions to the Court. This is not a case where a Rule 12(b)(6) motion is converted into a Rule 56 motion and a further opportunity to respond may be required under Rule 12(d). Here,...