McMahon v. Presidential Airways, Inc.

• Decision Date: 27 September 2006
• Docket Number: No. 6:05-CV-1002ORL28JGG.,6:05-CV-1002ORL28JGG.
• Citation: 460 F.Supp.2d 1315
• Parties: Jeanette McMAHON, as Personal Representative of the Estate of Michael McMahon; Tracy Grogan, as Personal Representative of the Estate of Travis Grogan; and Sarah Miller, as Personal Representative of the Estate of Harley Miller, Plaintiffs, v. PRESIDENTIAL AIRWAYS, INC., Aviation Worldwide Services, LLC, Sti Aviation, Inc., Air Quest, Inc., Defendants.
• Court: U.S. District Court — Middle District of Florida

460 F.Supp.2d 1315

Jeanette McMAHON, as Personal Representative of the Estate of Michael McMahon; Tracy Grogan, as Personal Representative of the Estate of Travis Grogan; and Sarah Miller, as Personal Representative of the Estate of Harley Miller, Plaintiffs, v. PRESIDENTIAL AIRWAYS, INC., Aviation Worldwide Services, LLC, Sti Aviation, Inc., Air Quest, Inc., Defendants.

No. 6:05-CV-1002ORL28JGG.

United States District Court, M.D. Florida. Orlando Division.

September 27, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Galen D. Bauer, Robert B. Guild, Robert F. Spohrer, Sean B. Cronin, Spohrer, Wilner, Maxwell & Matthews, P.A., Jacksonville, FL, for Plaintiffs.

J. Denny Shupe, Schnader, Harrison, Segal & Lewis, LLP, Philadelphia, PA, Jonathan M. Stern, Schnader, Harrison, Segal & Lewis, LLP, Robert L. Elam, Greenberg Traurig, LLP, Michael P. Socarras, McDermott, Will & Emery, Washington, DC, John Armando Boudet, Greenberg Traurig, P.A., Orlando, FL, Mark P. Schnapp, Sabrina R. Ferris, Greenberg Traurig, P.A., Miami, FL, for Defendants.

Carolyn J. Adams, U.S. Attorney's Office, Orlando, FL, Justin Chretien, Aviation & Admiralty Litigation, Department of Justice, Washington, DC, for Intervenor.

ORDER

ANTOON, District Judge.

This cause is before the Court on Defendants' Motion to Dismiss (Doc. 40), to which Plaintiffs have filed a Memorandum in Opposition (Doc. 56). Having considered the parties' arguments and pertinent law, the Court concludes that Defendants' motion must be denied.

I. BACKGROUND

Plaintiffs are survivors of three United States servicemen who were killed on November 27, 2004, when the airplane in which they were being flown crashed in Afghanistan. They have sued Defendants, who "contracted with the United States of America ... to provide air transportation and operational support services to the Department of Defense ("DoD") in Afghanistan." (Am. Compl., at 3, ¶ 13.) The contract governing the terms of the agreement includes an attachment known as the Statement of Work,¹ and it provides that the contractor personnel are to comply with FAA regulations in performing under the contract. (Statement of Work ¶¶ 1.3, 1.4, 1.8, 4.4) (hereinafter "SOW".)

II. DISCUSSION

Defendants have raised three arguments in support of their Motion to Dismiss the Amended Complaint. They argue that this case presents a nonjusticiable political question that the court should decline to decide. Defendants also contend that even though they are civilian contractors, they enjoy intra-military immunity under the Feres doctrine², requiring dismissal. Finally, Defendants argue that the combatant activities exception to the Federal Tort Claims Act ("FTCA") applies, barring this state tort lawsuit.

A. The Political Question Doctrine

Defendants contend that this case presents a nonjusticiable political question because "[t]he manner in which the President oversees and commands these military operations, including his decisions through the chain of command concerning the training, deployment, armament, missions, composition, planning, analysis, management and supervision of private military contractors and their missions, is beyond the role of the courts." (Defs.' Mem. at 17.) Defendants claim that "[a]ny consideration by this Court of plaintiffs' claims would necessarily encroach on military decision-making constitutionally committed to the coordinate branches of government." (Id. at 18.)

1. The Basis of the Doctrine

The reluctance with which the judiciary broaches political questions is a function of the division between the three branches of government and their roles as dictated by the Constitution. Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The judiciary properly refrains from deciding controversies that the Constitution textually commits to another political branch and cases that are beyond the competence of the courts to resolve because of the lack of judicially manageable standards. Id. at 217, 82 S.Ct. 691. In its landmark decision of Baker v. Carr, the Supreme Court identified other characteristics of political questions, including the embarrassment that flows from conflicting pronouncements by coordinate political branches of Government, an unusual need for adherence to a political decision already made, the prerequisite of an initial policy determination by another branch of Government, and the risk of disrespecting either the Legislative or the Executive branches. Id.

The political question doctrine does not, however, allow courts to avoid deciding cases merely because they have "political overtones or questions they might categorize as `political," El-Shifa Pharmaceutical Industries Co. v. United States, 378 F.3d 1346, 1362 (Fed.Cir.2004), and "[t]he decision that a question is nonjusticiable is not one courts should make lightly." Id. Indeed, it is with increasing rarity that a case is dismissed on political question grounds. See In re Agent Orange Prod. Liab. Litig., 373 F.Supp.2d 7, 65-69 (E.D.N.Y.2005) (citing academic authority regarding the questionable utility of the doctrine and the scant case law applying the doctrine successfully since Baker). In 2000, the Supreme Court failed to even mention the doctrine in its historic decision of Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000), an omission which has led some to question the doctrine's continuing vitality. See Erwin Chemerinsky, Bush v. Gore Was Not Justiciable, 76 Notre Dame L.Rev. 1093 (2001); Lawrence Tribe, EROG v. HSUB and its Disguises: Freeing Bush v. Gore from its Hall of Mirrors, 115 Harv. L.Rev. 170, 276-87 (2001).

2. Private Defendants

The doctrine has been applied in very limited circumstances, but it has almost never been applied to suits involving private defendants. As the Ninth Circuit Court of Appeals noted in Koohi v. United States, 976 F.2d 1328, 1332 n. 3 (9th Cir. 1992), as of 1992, that court could not find a single decision by the Supreme Court or any Court of Appeals dismissing a suit against a private party on political question grounds. Defendants have failed to cite such a case decided since Koohi.

Some federal district courts have invoked the doctrine in suits brought against private defendants. All are inapposite to the case at bar. In some of the cases, the United States was either named as a party, or it intervened to protect its own interests and raised the political question doctrine as a basis for dismissal. See Bentzlin v. Hughes Aircraft Co., 833 F.Supp. 1486, 1487 (C.D.Cal.1993) ("The United States, as intervenor ..., moved to dismiss ... under the political question and state secrets doctrines."); Zuckerbraun v. Gen. Dynamics Corp., 755 F.Supp. 1134, 1135-36 (D.Conn.1990) ("The United States also argues that the political question doctrine renders the case nonjusticiable and requires dismissal."); Nejad v. United States, 724 F.Supp. 753, 755 (C.D.Cal.1989). Notably, the United States has not chosen to intervene on behalf of Defendants in this case.

In three of the district cases that applied the political question doctrine to insulate private parties from suit, the courts emphasized the control the United States had over either the conduct at issue or the private party defendants. For example, in Smith v. Halliburton Co. (Smith II), the military had absolute control over the services that the plaintiffs claimed the private defendants had performed negligently. No. H-06-0462, 2006 WL 2521326, at *3-4, 5, 2006 U.S. Dist. LEXIS 61980, at *15-16, 20, 22 (S.D.Tex. Aug. 30, 2006). Since the military was solely responsible for the provision of security, the political question doctrine was rightly implicated. Id.; see also Fisher v. Halliburton, Inc. (Fisher II), No. H-05-1731, slip op. at 3, 12-13 (S.D.Tex. Sept. 22, 2006) (holding that the contractor's conduct was "inextricably intertwined" with that of the Army in claims arising out of anti-American attacks on a convoy in Iraq). The final case cited by Defendants in which a suit against a private party was dismissed under the political question doctrine is Whitaker v. Kellogg Brown & Root, Inc., 444 F.Supp.2d 1277 (M.D.Ga.2006). Whitaker, involving a supply convoy accident in Iraq. Id. at *1, 2006 U.S. Dist. LEXIS 61980, at *1. The degree of control that the military exercised over the operation of the convoy is not clear from the facts, though the Whitaker court ultimately concluded that the military control was extensive, id. at *3, 2006 U.S. Dist. LEXIS 61980, at *12-13. To the extent that Whitaker involved ordinary tort allegations that did not implicate military decision-making, this Order is in conflict with Whitaker's conclusion. See also Carmichael v. Kellogg, Brown & Root Servs., Inc., 450 F.Supp.2d 1373, 1376 (N.D.Ga.2006) (disagreeing with Whitaker's conclusion and instead emphasizing whether the claims require "inquiries regarding military decision-making"). However, if the level of military control over the Whitaker convoy was so high as to implicate military strategy and procedure, as that court seemed to conclude, see id. at 1375-77, then it is distinguishable from the allegations here.

It is possible to imagine cases against private defendants that pose nonjusticiable political questions. However, Baker's requirements — which center on the relationships between the coordinate branches of government — ensure that the class of political question cases against private defendants will be exceedingly small. Insofar as private contractors are concerned, political questions may be presented only in those rare instances when the private actors are so constrained by military command that their actions are rightly attributable to the Executive branch.

3. The Political Question Doctrine and War

Controversies stemming from war are not automatically deemed political questions merely because militaristic activities are within the province of the Executive. Koohi, 976 F.2d at 1331 ("Nor is...