Nejad v. US, CV 89-3991 AWT

• Decision Date: 07 November 1989
• Docket Number: 89-4610 AWT,89-4665 AWT,89-4618 AWT,and 89-5254 AWT.,No. CV 89-3991 AWT,CV 89-3991 AWT
• Parties: Ahmad Ghaderi NEJAD, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Central District of California

724 F. Supp. 753

Ahmad Ghaderi NEJAD, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.

Nos. CV 89-3991 AWT, 89-4610 AWT, 89-4618 AWT, 89-4665 AWT, and 89-5254 AWT.

United States District Court, C.D. California.

November 7, 1989.

S. Shawn Khastoo, Khastoo, Saboorian & Associates, Beverly Hills, Cal., for plaintiffs.

Herbert L. Fenster, Raymond B. Biagini, Heather A. Garlock, William R. Stoughton, McKenna, Conner & Cuneo, Los Angeles, Cal., for Raytheon Co., Gen. Dynamics Corp., FMC Corp., Hughes Aircraft Co., The Johns Hopkins University and Unisys Corp.

James M. FitzSimons, Richard R. Nelson, Mendes & Mount, Los Angeles, Cal., for Martin Marietta Corp.

W. Reece Bader, Matthew D. Powers, Garrett Sanderson, Orrick, Herrington & Sutcliffe, San Francisco, Cal., W. Douglas Kari, Orrick, Herrington & Sutcliffe, Los Angeles, Cal., for Gen. Elec. Co. and RCA, Government Systems Div.

Joseph F. Coyne, Jr., Mary E. Tarduno, Ryan D. McCortney, Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for Honeywell Corp.

Elliot E. Polebaum, Molly Munger, Milton Eisenberg, P.C., Fried, Frank, Harris, Shriver & Jacobson, Washington, D.C., for Computer Sciences Corp.

Stuart E. Schiffer, Acting Asst. Atty. Gen., Gary W. Allen, Director, Aviation/Admiralty Torts Branch, David V. Hutchinson, Asst. Director, Admiralty Torts Branch, John J. Connors, U.S. Dept. of Justice, Torts Branch, Civ. Div., Washington, D.C., James R. Sullivan, Asst. U.S. Atty., Asst. Chief, Civ. Div., Los Angeles, Cal., for U.S.

MEMORANDUM OPINION

TASHIMA, District Judge.

This is an action arising out of the downing of Iran Air Flight 655 on July 3, 1988. Flight 655 was shot down over the Persian Gulf by missile fire from the USS Vincennes. All 290 passengers and crew aboard the aircraft died. Plaintiffs are "the families and economic dependents" of four of the passengers aboard Flight 655 who perished aboard the flight. Defendants are the United States and 12 defense contractors who supplied the ship or various of its equipment and systems, including the AEGIS weapon system to the United States Navy.

On the basis of materials supplied by the government and unchallenged by any other party, the Court takes judicial notice of the following facts:¹

The Vincennes was sent to the Persian Gulf by the President to protect neutral shipping from the war between Iran and Iraq. On July 4, 1988, the day after the incident, the President reported to Congress that at the time of the incident the Vincennes was under fire from Iranian gunboats and that it believed Flight 655 to be a hostile military aircraft. "Regrettably, in the course of the U.S. attack, an Iranian civilian airliner was shot down by the Vincennes, which was firing in self defense at what it believed to be a hostile Iranian military aircraft." The President further stated that "The actions of U.S. forces in response to being attacked by Iranian small boats were taken in accordance with our inherent right of self-defense, as recognized in Article 5 of the United Nations Charter, and pursuant to my constitutional authority with respect to the conduct of foreign relations and as Commander in Chief." Although the United States later announced that it would make ex gratia payment to families of the victims, it continues to maintain its position that its actions constituted the lawful use of force in self-defense and that Iran was ultimately responsible for the incident.

The first claim is for wrongful death; the second claim for negligent manufacture; the third claim for strict liability; the fourth claim for breach of implied warranty; and, the fifth claim for punitive damages. All defendants who have appeared have moved to dismiss on various grounds. Each of these grounds is briefly discussed below.

I. NONJUSTICIABILITY

In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Court set forth the several formulations which describe the settings which give rise to a political, or nonjusticiable, question.

Prominent on the surface of any case held to involve a political question is found 1 a textually demonstrable constitutional commitment of the 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 departments on one question.

Id. at 217, 82 S.Ct. at 710. Ultimately, it is a function of the separation of powers. Further, "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." Id.

Here, it is indubitably clear that plaintiffs' claim calls into question the Navy's decisions and actions in execution of those decisions. The conduct of such affairs are constitutionally committed to the President as Commander in Chief and to his military and naval subordinates. Thus, the claim here implicates possibly all and at least formulations 1, 4, 5 and 6 of Baker v. Carr. Plaintiffs contend that they do not call into question the President's decision to send U.S. warships to the Persian Gulf, but only the negligent manner in which the President's decision was carried out. This contention too must fail.

The same considerations which preclude judicial examination of the decision to act must necessarily bar examination of the manner in which that decision was executed by the President's subordinates. The textual commitment to the President as commander in chief of authority for military decisions entails that his decision may be implemented without judicial scrutiny. Moreover, courts lack standards with which to judge whether reasonable care was taken to achieve tactical objectives in combat while minimizing injury and loss of life.

Rappenecker v. United States, 509 F.Supp. 1024, 1030 (N.D.Cal.1980) (citations omitted).

II. STATE SECRETS

Defendants claim that adjudication of plaintiffs' claim is barred by the state secrets privilege.

In United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), the Court held that the government may hold military secrets as an absolute privilege and set forth the contours of the state secrets privilege:

The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.

Id. at 7-8, 73 S.Ct. at 531-32 (citations omitted). The Court then discussed how the invocation of the state secrets privilege should be evaluated.

It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.

Id. at 10, 73 S.Ct. at...