Zuckerbraun v. General Dynamics Corp.

• Decision Date: 06 December 1990
• Docket Number: Civ. No. H-90-401 (EBB).
• Citation: 755 F. Supp. 1134
• Court: U.S. District Court — District of Connecticut
• Parties: David ZUCKERBRAUN, Plaintiff, v. GENERAL DYNAMICS CORP., et al., Defendants.

755 F. Supp. 1134

David ZUCKERBRAUN, Plaintiff, v. GENERAL DYNAMICS CORP., et al., Defendants.

Civ. No. H-90-401 (EBB).

United States District Court, D. Connecticut.

December 6, 1990.

James J. Courtney, Suisman, Shapiro, Wool, Brennan & Gray, New London, Conn., for plaintiff.

Francis H. Morrison, III, Day, Berry & Howard, James M. Moher, Jack G. Steigelfest, Howard, Kohn, Sprague & Fitzgerald, Wesley W. Horton, Charles M. Rice, Jr., Moller, Horton & Fineberg, George C. Vitelli, Robinson & Cole, Hartford, Conn., Raymond B. Biaginin, Margaret M. Antinori, William R. Stoughton, Herbert L. Fenster, McKenna & Cuneo, Washington, D.C., Matthew D. Powers, Edward R. Reines, W. Reece Bader, Orrick, Herrington & Sutcliffe, San Francisco, Cal., Debra J. Kossow, Sr. Admiralty Counsel, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., John F. Conway, New Haven, Conn., for defendants.

RULING ON MOTIONS TO DISMISS

ELLEN B. BURNS, Chief Judge.

The plaintiff, as Administrator of the Estate of Earl Patton Ryals, filed this suit in connection with the incident on May 17, 1987, in which the USS Stark was fired on by an Iraqi F-1 Mirage aircraft while cruising in the Persian Gulf. Thirty-seven United States Navy sailors, including the plaintiff's decedent, were killed. Jurisdiction is founded on 28 U.S.C. § 1331, and this case was brought under the Death on the High Seas Act, 46 U.S.C.App. § 761 et seq.

The plaintiff filed this action against General Dynamics Corporation, Raytheon Company, FMC Corporation, Hughes Aircraft Company, Unisys Corporation, and RCA Corporation, Government Systems Division hereinafter "private defendants" as designers, manufacturers, testers, and/or marketers of the Phalanx Anti-Missile System, its component parts and the ship's remaining weapon systems. In the first count of his complaint, the plaintiff alleges that these defendants negligently designed, manufactured, and tested the weapons systems. The second count alleges that these defendants breached their implied warranty of merchantability and fitness of the weapons systems for the purposes for which they were intended. In addition, the third count alleges that the weapons systems were unreasonably dangerous because they were defectively designed, manufactured, and/or tested. Finally, the last count alleges that the defendant General Dynamics performed reliability tests in a negligent manner, and intentionally misrepresented and fraudulently concealed the test results.

On August 24, 1990, this court granted the motion of the United States to intervene. Pending before this court are motions to dismiss filed by the United States and the private defendants. The United States moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6) because the court lacks subject matter jurisdiction and because the complaint fails to state a claim upon which relief may be granted. The United States invokes the state secrets doctrine, arguing that disclosure of specifics about the USS Stark weapons systems would be necessary for the plaintiff to make a prima facie case. The Government argues such disclosure would threaten national security and that the case should therefore be dismissed. The United States also argues that the political question doctrine renders the case nonjusticiable and requires dismissal.¹ The private defendants join in and support the United States' motion. Their memoranda in support of their motion to dismiss make arguments similar to the United States' memoranda, but also argue that the United States' espousal² of the plaintiff's claim precludes maintenance of the present claim and that courts should not entertain tort actions arising out of the engagement of United States armed forces in areas of hostility.

At the request of the Government, this court takes judicial notice of the following facts:

The war between Iran and Iraq, which began in 1980, has resulted in over 450 air attacks on Persian Gulf shipping from 1984 to 1987, with an increasing number of attacks on ships trading with Kuwait. In 1986 Kuwait sought protection from Iranian attack for their shipping from the United States, the Soviet Union, Great Britain, France and China. A major objective of the national security policy of the United States in 1987 was ensuring the continued access by the Free World to the oil supplies in the Persian Gulf. In 1987, the United States agreed to reflag Kuwaiti ships under U.S. registry and provide naval protection for such ships. The United States maintains a continuing naval presence in the Persian Gulf to escort American flag ships and certain ships especially reflagged as American and to respond to attacks on American flag and other neutral ships. After the aerial attack on the USS Stark by an Iraqi warplane on May 17, 1987, the Government of Iraq, pursuant to an international agreement, provided $27,350,374.00 in compensation to the United States for claims arising out of the deaths of 37 individuals, including the plaintiff's decedent. Iraq transferred this amount to the United States, which in turn, distributed the checks to the individual beneficiaries of this claims settlement. The United States has deployed additional naval forces to the Persian Gulf in response to Iraq's recent invasion of Kuwait.³

DISCUSSION

A motion to dismiss for failure to state a claim should only be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). "The function of a motion to dismiss `is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). In considering a motion to dismiss, the court must presume all factual allegations of the complaint to be true and must draw any reasonable inferences in favor of the nonmoving party.

1. State Secrets

The state secrets privilege is an evidentiary one which may only be asserted by the Government. United States v. Reynolds, 345 U.S. 1, 7, 73 S.Ct. 528, 531, 97 L.Ed. 727 (1953). The purpose of the privilege is to "protect information not officially disclosed to the public concerning the national defense or the international relations of the United States." 8 Wright & Miller, Federal Practice and Procedure, § 2019, at 158 (1970). The Government only needs to show that "from all the circumstances of the case, ... there is a reasonable danger that compulsion of the evidence will expose matters which, in the interest of national security, should not be divulged." Reynolds, 345 U.S. at 10, 73 S.Ct. at 533.

In Reynolds, the Supreme Court discussed the dilemma facing a court evaluating a claim of privilege; "too much inquiry would force disclosure of the thing the privilege was meant to protect, while a complete abandonment would lead to intolerable abuses." Id. at 8, 73 S.Ct. at 532 (discussing the analogous privilege against self-incrimination). Therefore, if a court is satisfied that a reasonable danger to security interests has been established, "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 533.⁴

The requirements for an assertion of the state secrets privilege are that "there must be a formal claim of privilege, lodged by the head of the department which has control of the matter, after personal consideration by that officer." Id. at 7-8, 73 S.Ct. at 531-32. The court must then evaluate the claim, according the utmost deference to the executive official, National Lawyers Guild v. Attorney General, 96 F.R.D. 390, 398 (S.D.N.Y.1982), yet not abdicating judicial control of the evidence of the case to executive officers. Reynolds, 345 U.S. at 9, 73 S.Ct. at 532.

Once it is successfully invoked, the privilege is absolute. Although it "should not be lightly accepted, ... even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake." Reynolds, 345 U.S. at 11, 73 S.Ct. at 533. "A party's need for the information is not a factor in considering whether the privilege will apply." Northrop Corp. v. McDonnell Douglas, 751 F.2d 395, 399 (D.C.Cir. 1984). A party's need for the information is only to be considered to determine "how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate." Reynolds, 345 U.S. at 11, 73 S.Ct. at 533. See also Halkin v. Helms, 690 F.2d 977, 990 (D.C.Cir. 1982).

The effect a successful invocation of the privilege has on a case varies; the "court must consider whether and how the case may proceed in light of the privilege." Fitzgerald v. Penthouse Internat'l, Ltd., 776 F.2d 1236, 1243 (4th Cir.1985). At the least, the privilege removes the sensitive information from the case completely. In re United States, 872 F.2d 472, 476 (D.C. Cir.1989). If the plaintiff is unable to establish a prima facie case without the privileged information, id., or if sensitive military secrets are "so central to the subject matter of the litigation that any attempt to proceed will threaten disclosure of the privilege," dismissal of the case is appropriate. Fitzgerald v. Penthouse Internat'l, Ltd., 776 F.2d 1236, 1241-42 (4th Cir.1985). Similarly, if the information is essential to the defense, then summary judgment against the plaintiff may be appropriate. In re United States, 872 F.2d at 476; see, e.g., Molerio v. Federal Bureau of Investigation, 749 F.2d 815 (D.C.Cir.1984). If, however, the plaintiff has sufficient admissible evidence to allow a judgment in its favor without the privileged information, the...