Carmichael v. Kellogg, Brown & Root Services, Inc.

Decision Date09 July 2008
Docket NumberCivil Action No. 1:06-cv-507-TCB.
Citation564 F.Supp.2d 1363
PartiesAnnette CARMICHAEL, Individually and as Guardian for Keith Carmichael, an incapacitated adult, Plaintiff, v. KELLOGG, BROWN & ROOT SERVICES, INC., Halliburton Energy Services, Inc. and Richard Irvine, Defendants.
CourtU.S. District Court — Northern District of Georgia

Davis Kingsley Loftin, Office of Peter A. Law, Keenan R.S. Nix, Morgan & Morgan, P.A., Peter A. Law, E. Michael Moran, Peter A. Law, P.C., Atlanta, GA, for Plaintiff.

David Kasanow, Kurt James Hamrock, Lisa M. Norrett, McKenna Long & Aldridge, Washington, DC, Jonathan R. Friedman, McKenna Long & Aldridge, Atlanta, GA, for Defendants.

ORDER

TIMOTHY C. BATTEN, SR., District Judge.

Before the Court is Defendants' renewed motion to dismiss Plaintiffs complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) on the grounds that Plaintiffs claims are nonjusticiable under the political question doctrine [94].

I. Background

On May 22, 2004, Sergeant Keith Carmichael, a soldier in the United States Army, was serving as a military escort for a convoy of trucks operated by Defendants Kellogg, Brown & Root Services, Inc. ("KBR") and Halliburton Energy Services, Inc. ("Halliburton"). Carmichael was a passenger in a tractor-trailer driven by Defendant Richard Irvine, a civilian who was an employee of both corporate Defendants.

While traveling from Logistics Support Area Anaconda to Al Asad, Iraq, Irvine lost control of the tractor-trailer and drove off the road, whereupon the tractor-trailer overturned in a ravine. Carmichael was partially ejected from the cab of the tractor. His head and chest were pinned between the tractor and the ground. Six to seven minutes passed before rescuers could dislodge his body. During this time he experienced a loss of oxygen to his brain. Tragically, he suffered massive injuries and is now in a permanent vegetative state.

On February 1, 2006, Carmichael's wife, Plaintiff Annette Carmichael, individually and as her husband's guardian, filed this action in the State Court of Fulton County, Georgia, against KBR, Halliburton and Irvine. She alleges that Irvine negligently operated the tractor-trailer at an excessive speed and failed to maintain control of the tractor-trailer, thereby causing the accident; she also alleges that Irvine failed to properly inspect Defendants' equipment and vehicle before operating them. Plaintiff further claims that the corporate Defendants are vicariously liable for Irvine's allegedly negligent conduct under the doctrine of respondeat superior and that the corporate Defendants are directly liable for negligently hiring, training and supervising Irvine.

On March 3, 2006, Defendants removed the case to this Court. On March 10, 2006, Defendants moved to dismiss the complaint, arguing that, based on certain U.S. Army regulations regarding convoy operations, Plaintiffs claims were nonjusticiable under the political question doctrine.1 On September 19, 2006, this Court denied Defendants' motions, finding that Plaintiffs claims would be barred by the political question doctrine only if "military decision-making or policy would be a necessary inquiry, inseparable from the claims asserted." Carmichael v. Kellogg, Brown & Root Servs., Inc., 450 F.Supp.2d 1373, 1375 (N.D.Ga.2006) (quoting Lessin v. Kellogg Brown & Root, No. H-05-01853, 2006 WL 3940556, at *3, 2006 U.S. Dist. LEXIS 39403, at *7 (S.D.Tex. June 12, 2006)). The Court also found that because the discovery period had just begun, it was impossible to;say with certainty whether this case would require such inquiries into military decision-making as to evoke a nonjusticiable political question.2 The Court allowed that if additional facts germane to Defendants' political question argument appeared during the discovery period Defendants could renew their motion to dismiss.

On December 21, 2007, after completion of discovery, Defendants renewed their motion to dismiss, again arguing that Plaintiffs claims are nonjusticiable under the political question doctrine [94]. After considering the motion, Plaintiffs response, and Defendants' reply, the Court granted Plaintiffs motion for oral argument on the motion to dismiss and ordered the parties to submit statements of material fact supported by specific reference to record evidence. The parties submitted their statements of material fact in May, and the hearing on the motion to dismiss took place on May 21, 2008.

Defendants argue that two significant events pertinent to the political question doctrine occurred subsequent to the Court's ruling on Defendants' original motion to dismiss that establish with certainty that this case will involve nonjusticiable political questions. First, Defendants argue that McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (11th Cir.2007), endorses Whitaker v. Kellogg Brown & Root, Inc., 444 F.Supp.2d 1277 (M.D.Ga. 2006), a tort case strikingly similar to this case that was dismissed for lack of subject matter jurisdiction based on the political question doctrine. Second, Defendants assert, declarations from four army officers and deposition testimony of five KBR personnel confirm and clarify the military judgments embedded in this suit and the authority the army exercised over every aspect of the military supply convoy.

II. Legal Standards
A. Standard on Rule 12(b)(1) Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) may be based on either a facial or factual challenge to the complaint. McElmurray v. Consol. Gov't of Augusta-Richmond County, 501 F.3d 1244, 1251 (11th Cir. 2007). In considering a facial challenge, which simply alleges that the plaintiff failed to sufficiently allege a basis for subject matter jurisdiction, a court must accept the allegations in the complaint as true. Id. (likening a plaintiffs safeguards to "those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised") (citation and internal punctuation omitted).' A factual attack, in contrast, challenges "the existence of subject matter jurisdiction in fact, irrespective of pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id. (citation and internal punctuation omitted).

Where, as here, the 12(b)(1) motion involves a factual attack on subject matter jurisdiction and the plaintiff has had an opportunity for discovery and for a hearing on the motion to dismiss, the district court has the power to dismiss based on "the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Id. (citation and internal punctuation omitted).

B. Political Question Doctrine

The political question doctrine is a function of the separation of powers among the three branches of government, and it "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, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986).

In Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court set forth six elements indicative of a nonjusticiable political question:

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; and

6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

These elements are "probably listed in descending order of both importance and certainty." Vieth v. Jubelirer, 541 U.S. 267, 278, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004).

At least one of these elements must be evident for the political question doctrine to apply. Baker, 369 U.S. at 217, 82 S.Ct. 691. The Court must make "a `discriminating inquiry into the precise facts and posture of a particular case' before [it] may withhold its own constitutional power to resolve cases and controversies." Lane v. Halliburton, 529 F.3d 548, 558 (5th Cir. 2008) (quoting Baker, 369 U.S. at 216, 82 S.Ct. 691); accord McMahon, 502 F.3d at 1358.

III. Discussion
A. Textually Demonstrable Constitutional Commitment of the Issue to a Coordinate Political Department

Defendants renew their contention that the first Baker element is implicated because Plaintiffs complaint necessarily raises issues that are committed to the discretion of the political branches of government. See U.S. CONST, art. I, § 8 (granting to Congress the authority to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces); U.S. CONST, art. II, § 2 (granting to the president authority over the conduct of foreign affairs and over the armed forces as commander-inchief). Defendants argue that because every aspect of the planning and execution of convoy missions—including the route and speed of the convoys—is determined by the military and not by civilian drivers, military decisions would necessarily be questioned were this case allowed to go forward.

1. Military Contractors and the Political Question Doctrine

In its Order on Defendants' original motion to dismiss, the Court expressly declined to follow Whitaker v. Kellogg Brown & Root, Inc., 444 F.Supp.2d 1277 (M.D.Ga. 2006).3 Defendants argue that in McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (11th Cir.2007), which was published after this Court's Order, the Eleventh Circuit...

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    ...of subject-matter jurisdiction over tort actions arising out of such provision of services. See e.g., Carmichael v. Kellogg, Brown & Root Services, Inc., 564 F.Supp.2d 1363 (N.D.Ga.2008) (political question doctrine barred claims of a soldier's estate against private military contractor for......
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    ...give the military "plenary control" over convoys such as the one at issue here. Carmichael v. Kellogg, Brown & Root Services, Inc., 564 F.Supp.2d 1363, 1368 (N.D.Ga.2008) ("Carmichael II").4 Thus, for example, it is military, not civilian contractors, that decides when convoys are to be arr......
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