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Norat v. Fluor Intercontinental Inc.

United States District Court, D. South Carolina, Greenville Division

March 19, 2018



          Bruce Howe Hendricks Judge

         This matter is before the Court on Defendant Fluor Intercontinental, Inc.'s (“Defendant” or “Fluor”) renewed motion to dismiss Plaintiffs Fabiola Maria Aviles Norat, Jonathan Menendez, and Carlos Medina Martinez's (collectively “Plaintiffs, ” individually “Norat, ” “Menendez, ” and “Martinez”) complaints for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (No. 6:16-cv-00603-BHH, ECF No. 50; No. 6:14-cv-04902-BHH, ECF No. 70).[1] For the reasons set forth in this Order, Defendant's motion is denied.


         These cases arise out of a motor vehicle accident that occurred on March 1, 2013, at Bagram Airfield near Kabul, Afghanistan, when Plaintiffs Menendez and Martinez-at the time both Specialists on active duty in the U.S. Army-drove a Gator all-terrain vehicle (“Gator” or “ATV”) into an uncovered excavation ditch and were injured (the “Accident”). At the time of the Accident, Defendant had an Electrical Support Services Contract (“ESS Contract” or “Contract”) with the U.S. Army Corps of Engineers (“Army Corps” or “USACE”), under which Fluor was responsible for installing new electrical service distribution as well as renovating and maintaining existing electrical services at military installations for deployed U.S. Forces in the Central Command footprint, including the Afghan theater and Bagram. (See Ex. 1 to Dixon Decl., ECF No. 70-2 at 14.) Plaintiffs assert that Defendant ignored certain legal and contractual obligations owed to Plaintiffs by failing to take appropriate measures to prevent such an accident from occurring.[2] Plaintiffs aver that Fluor was negligent in removing steel plates that covered the excavation pit into which they drove, and in failing to provide lights, wooden or concrete barricades, warning signs, or other precautionary indications that the excavation pit was uncovered. Defendant contends that the Army Corps directed and controlled Defendant's performance under the Contract, that Defendant complied with all pertinent safety requirements, and that Defendant fulfilled its legal and contractual obligations to the USACE.

         The Court denied Defendant's initial motion to dismiss without prejudice and with leave to re-file once jurisdictional discovery had been completed. (See ECF No. 25.) The goal of the jurisdictional discovery was to establish a sufficient factual basis on which to make determinations whether the political question doctrine, preemption, or derivative sovereign immunity bar Plaintiffs' claims. Upon completion of the jurisdictional discovery, Defendant filed the instant renewed motion to dismiss on March 15, 2017. (ECF No. 70.) Plaintiffs responded on March 29, 2017 (ECF No. 75), and Defendant replied on April 5, 2017 (ECF No. 76). On March 6, 2018, after obtaining leave of Court, Plaintiffs filed an amended memorandum in opposition to Defendant's motion, updating their presentation of the relevant facts based upon Fluor's responses to their requests for admissions. (See ECF No. 84.) The matter is ripe for consideration.


         “When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). In deciding such a motion, “‘the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.'” In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014) (quoting Velasco v. Gov't of Indon., 370 F.3d 392, 398 (4th Cir. 2004)). “However, ‘when the jurisdictional facts are inextricably intertwined with those central to the merits, the [district] court should resolve the relevant factual disputes only after appropriate discovery.'” Id. at 334 (quoting Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009)). When determining whether subject matter jurisdiction is present, the court applies the standard applicable to motions for summary judgment where the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Richmond, 945 F.2d at 768 (citing Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1559 (9th Cir. 1987)). “The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id.

         “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556)). In considering a motion to dismiss under Rule 12(b)(6), a court “accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff . . . .” Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009). However, a court “‘need not accept the [plaintiff's] legal conclusions drawn from the facts, ' nor need it ‘accept as true unwarranted inferences, unreasonable conclusions, or arguments.'” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (quoting Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4th Cir.2006)) (modification in original). A court should grant a Rule 12(b)(6) motion if, “after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).


         Defendant moves to dismiss Plaintiffs' complaints on the following grounds: (1) Plaintiffs' claims are non-justiciable under the political question doctrine; (2) Plaintiffs' tort claims are preempted by the “combatant activities exception” to the federal government's waiver of immunity in the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(j); (3) Plaintiffs cannot state a claim against Defendant because Fluor is entitled to derivative sovereign immunity based on the “discretionary function exception” to the FTCA, 28 U.S.C. § 2680(a). As set forth below, the undersigned finds that none of these bases require dismissal under the factual context currently before the Court.

         A. Applicability of the Political Question Doctrine

         “The political question doctrine had its genesis in the Supreme Court's decision of Marbury v. Madison, where Chief Justice Marshall explained that ‘[q]uestions, in their nature political, of which are, by the constitution and laws, submitted to the executive, can never be made in this court.'” Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402, 408 (4th Cir. 2011) (quoting Marbury v. Madison, 5 U.S. 137 (1803)). “Pursuant to the political question doctrine, the judiciary is deprived of jurisdiction to assess decisions exclusively committed to a separate branch of government. For example, most military decisions lie solely within the purview of the executive branch.” Id. at 407 n.9 (citing Baker v. Carr, 369 U.S. 186 (1962)). However, the fact that a government contractor “was acting under orders of the military does not, in and of itself, insulate the claim from judicial review.” Id. at 411. “Therefore, although cases involving military decision making often fall in the political question box, we cannot categorize such a case as nonjusticiable without delving into the circumstances at issue.” Burn Pit, 744 F.3d at

         The U.S. Supreme Court, in Baker v. Carr, set forth a test establishing six factors a court should consider when deciding whether a case presents a political question, including whether the case evinces:

(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” the issue, (3) “the impossibility of deciding [the issue] without an initial policy determination of a kind clearly for nonjudicial discretion, ” (4) “the impossibility of a court's undertaking independent resolution [of the issue] without expressing lack of the respect due coordinate branches of government, ” (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. (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)) (modifications in original). In cases involving the civil liability of military contractors for alleged negligence, the Fourth Circuit Court of Appeals has distilled the Baker factors into two questions for determining whether a court has subject matter jurisdiction:

[F]irst . . . “whether the government contractor was under the ‘plenary' or ‘direct' control of the military” (direct control). Second, . . . whether “national defense interests were ‘closely intertwined' with military decisions governing the contractor's conduct, such that a decision on the merits of the claim ‘would require the judiciary to question actual, sensitive judgments made by the military.'” An affirmative response to either of the two [questions], namely, the fact of direct control or the need to question sensitive military judgments, generally triggers application of the political question doctrine.

Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 155 (4th Cir. 2016) (quoting Taylor, 658 F.3d at 411) (internal citations omitted). This test has been applied by the Fourth Circuit numerous times beginning with Taylor v. Kellogg Brown & Root Servs., Inc., and the two questions posed above have come to be known as the “Taylor factors.”

         In Taylor, the Fourth Circuit determined that the political question doctrine barred a U.S. Marine's negligence suit against military contractor, KBR. The Marine-Peter Taylor-was electrocuted and suffered severe injuries when a KBR employee turned on the power to an electric generator at Camp Fallujah, Iraq, after having been specifically instructed by Marine Corps personnel not to do so. 658 F.3d at 404. The generator powered Camp Fallujah's tank ramp and had malfunctioned. There had been several such power outages, and a group of Marines, including Taylor, decided to install a wiring box at the tank ramp and hook up their own generator. As such, the main generator had been turned off. Taylor was working on the wiring box when the generator was turned on, resulting in his injuries. Importantly, jurisdictional discovery in the case established that the use of secondary or backup generator sources to power individual Camp facilities, such as the truck ramp, in the event of primary power failure had to be authorized by the “Mayor's Cell, ” commanded by Marine Major Omar Randall, and the truck ramp had not been authorized for backup power. Id. at 406.

         The Taylor court disagreed with underlying district court opinion and found that the direct control factor did not implicate the political question doctrine under the facts of the case because the explicit terms of the contract made KBR responsible for the physical safety of workers and servicemembers that might come into contact with the hazards presented by is electrical work. Specifically, the court quoted a section of the contract entitled “Statement of Work, ” which provided: “[KBR] shall be responsible for safety of employees and base camp residents during all [KBR] operations conducted in accordance with this Statement of Work and [applicable Army safety regulations].” 658 F.3d at 406. Accordingly, the court found that where KBR was “solely responsible for the safety of all ‘camp residents during all contractor operations, '” KBR could not be deemed to be under the plenary control of the military. Id. at 411 (quoting the underlying contract). In so finding, the Taylor court distinguished the factual scenario from the situation at issue in Carmichael v. Kellogg, Brown & Root Servs., Inc., where the Eleventh Circuit held that military authorities exercised plenary control over KBR's involvement in convoy operations. 572 F.3d 1271, 1276-77 (11th Cir. 2009) (holding the direct control factor counseled toward nonjusticiability in a suit for damages arising from a convoy crash because “it is the military, not civilian contractors, that decides when convoys are to be arranged, the routes to be traveled, the amount of fuel or other supplies to transported, the speed at which the vehicles are to travel, the number of vehicles to be included in the convoy, the spacing to be maintained between vehicles, and the security measures to be employed, and other details of the mission”).

         Nonetheless, the Taylor court held that the district court correctly concluded that Taylor's negligence claims were nonjusticiable under the political question doctrine by application of the “sensitive military judgments” factor. Specifically, the Fourth Circuit held that an analysis of KBR's contributory negligence defense would require the judiciary to question “actual, sensitive judgments made by the military, ” including whether Taylor and other Marines made a reasonable decision in seeking to install the wiring box to add another electric generator at the tank ramp, and “especially” the issue of the Mayor's Cell decision not to provide a backup generator for the tank ramp in the first place. Id. at 411-12. Thus, the Taylor court found the case nonjusticiable based on the second factor alone. See Burn Pit, 744 F.3d at 335 (noting the Taylor court's sole reliance on the sensitive military judgments factor in making a nonjusticiability finding).

         In In re KBR, Inc., Burn Pit Litigation, the Fourth Circuit vacated the district court's decision to dismiss military servicemembers' tort claims (including negligence) based upon their putative nonjusticiability under the political question doctrine. 744 F.3d 326, 341. The Burn Pit court held that neither the first nor the second Taylor factor indicated that the servicemembers' claims were nonjusticiable when considered in light of the factual context before the court. Id. The Judicial Panel on Multidistrict Litigation had consolidated fifty-eight separate complaints-the majority prosecuted by U.S. military personnel-alleging various tort and contract claims stemming from injuries suffered by servicemembers as a result of KBR's waste disposal and water treatment practices. Id. at 332. KBR moved to dismiss the servicemembers claims pursuant to, inter alia, the political question doctrine; the district court granted KBR's motion holding that both Taylor factors counseled toward nonjusticiability of the servicemembers' claims. Id. at 333. The Fourth Circuit noted that although some evidence demonstrated that the military exercised control over KBR's burn pit activities-e.g., a letter from General David Petraeus stating the need for burn pits during contingency operations, and declarations from various military officials and civilians indicating that the military decided what method of waste disposal to use on bases in Iraq and Afghanistan-other evidence presented by the servicemembers contradicted this picture-e.g., a U.S. Army manual indicating that the military does not tell logistics contractors how to perform the mission but only what the end result must be, and declarations from KBR managers stating that KBR was exclusively responsible for operating the burn pits in performance of the relevant contract. Id. at 336-37. The Fourth Circuit also determined that the military exercised some degree of oversight regarding KBR's water treatment functions, though the relevant task orders delegated potable and non-potable water production, distribution, and disposal to KBR. Id. at 337-38. The Burn Pit court concluded that the military's control over KBR's burn pit and water treatment tasks did not appear to arise to the level of control over convoy operations present in Carmichael, and likened the Burn Pit case to Harris v. Kellogg Brown & Root Services, Inc., in which the Third Circuit stated, “where the military does not exercise control but merely provides the contractor with general guidelines that can be satisfied at the contractor's discretion, contractor actions taken within that discretion do not necessarily implicate unreviewable military decisions.” 724 F.3d 458, 467 (emphasis added). Ultimately, the Burn Pit court stated that it could not “determine whether the military control factor renders [the] case nonjusticiable at this time” because “we simply need more evidence to determine whether KBR or the military chose how to carry out [burn pit and water treatment operations].” 744 F.3d at 339 (emphasis added).

         Respecting the second Taylor factor, the Burn Pit court concluded that KBR's “proximate causation” defense would not necessarily require the district court to evaluate the propriety of military judgments. Id. at 340. KBR's defense boiled down to its assertion that the servicemembers' “alleged injuries were caused by military decisions and conduct, not by KBR.” Id. The Fourth Circuit distinguished this defense from the contributory negligence defense at issue in Taylor, the resolution of which would have “invariably require[d] the Court to decide whether . . . the [military] made a reasonable decision.” See Taylor, 658 F.3d at 411 (emphasis added). In contrast, KBR's proximate causation defense would simply require the district court “to decide if the military made decisions regarding (1) whether to use, how to use, and where to locate burn pits and (2) how to conduct water treatment, ” without extending to the reasonableness of those decisions. 744 F.3d at 340. Again, the Fourth Circuit likened the Burn Pit case to the decision in Harris, where the Third Circuit held that a contractor's proximate causation defense-asserted against a claim that the contractor negligently performed maintenance duties thereby causing a soldier's death-would require evaluation of strategic military decisions only if the governing law used a proportional-liability system that assigned liability based on fault. Id. Accordingly, KBR's proximate causation defense in Burn Pit would not require a court to evaluate military decision making unless (1) the military caused the plaintiffs' injuries, at least in part, and (2) the plaintiffs invoked a proportional-liability system that allocated liability based on fault. Id. at 340-41. The Burn Pit court deemed this potentiality too remote to find that the second Taylor factor weighed toward nonjusticiability and remanded the case for further proceedings.

         In Al Shimari v. CACI Premier Tech., Inc., four Iraqi nationals alleged that they were abused while detained in the custody of the U.S. Army at Abu Ghraib prison, and alleged various tort claims against the military contractor, CACI, that participated in interrogation operations, including assault and battery, sexual assault and battery, and intentional infliction of emotional distress. 840 F.3d 147, 151 (4th Cir. 2016). The case came before the Fourth Circuit for the fourth time after limited jurisdictional discovery and a finding by the district court that the plaintiffs' claims were nonjusticiable under the political question doctrine. The Fourth Circuit vacated the district court's judgment and remanded for reexamination of subject matter jurisdiction in light of two holdings: (1) “conduct by CACI employees that was unlawful when committed is justiciable, irrespective whether that conduct occurred under the actual control of the military, ” and (2) ...

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