DONN v. A.W. CHESTERTON CO. INC. et al

Filing 108

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 2/1/12. 2/2/12 ENTERED AND COPIES MAILED, E-MAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CONSOLIDATED UNDER
MDL-875

ALAN H. DONN
Plaintiff,

Transferred from the
Southern District of New York
(Case No. 10-00311)

v.

A. W. CHESTERTON CO., INC.,
et al.,

E.D. PA CIVIL ACTION NO.
2:10-CV-62071-ER

Defendants.

FILED
FEB -12012

MICHAEL E. KUNZ. Clerk
By
pep. Clelk
MEMORANDUM
FEBRUARY 1, 2012

EDUARDO C. ROBRENO, J.
TABLE OF CONTENTS

I.
BACKGROUND ................................................. 2
II. LEGAL STANDARD ............................................. 3
III. DISCUSSION ................................................. 4
A.
Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.
Field Preemption ................................. 6
a.
Applicable Law .............................. 6
b.
Analysis .................................... 7
2.
Conflict Preemption ............................. 16
a.
Applicable Law ............................. 16
b.
Analysis ................................... 17
B.
Political Question Doctrine .......................... 22
1.
Applicable Law .................................. 22
2.
Analysis ........................................ 24
a.
Defendants' Arguments
Under the Baker Factors .................... 24
b.
The Political Question Doctrine's
Limited Use ................................ 2 6
c.
Recent Cases Invoking the Political Question
Doctrine in Government Contracts ........... 28
d.
The Political Question Doctrine's Effect on
the Government Contractor Defense .......... 31
IV. CONCLUSION ................................................ 32

Since the beginning of the Republic, the Federal
Government has relied upon private parties to supply military
equipment in connection with the national defense.

Over the

years, the relationship between the Government and these private
contractors has led to innumerable court decisions adjudging the
rights and duties of not only these parties, but of third parties
affected by the relationship as well.

This litigation has formed

a web of legal principles grounded upon notions of federal
supremacy and separation of powers.

In this case, Defendants,

private parties who contracted with the Federal Government to
supply military equipment to the Navy and who are being sued by a
former Naval serviceman under state law, seek to disentangle this
web by pulling on the strings of preemption and the political
question doctrine.
For the reasons that follow, these efforts are
unavailing.

I.

BACKGROUND

Plaintiff Alan Donn ("Plaintiff") brought suit against
a variety of defendants for injuries sustained from asbestos
exposure.

Plaintiff was diagnosed with malignant mesothelioma

and subsequently brought suit for damages against Defendants CBS
Corporation and General Electric Company (collectively,
"Defendants"), among others.

Pl.'s Compl.

2

~

3.

Plaintiff served

as an active-duty serviceman in the United States Navy aboard
several nuclear submarines from approximately July 1, 1957 to
July 1, 1981.

Id.

~

4.

Plaintiff avers that he was exposed to

asbestos while aboard these vessels.

With respect to Defendants,

Plaintiff avers that the Navy insulated with asbestos the hot
metal casings on the vessels' propulsion turbines, which were
manufactured by Defendants.

See Defs.' Br. in Supp. of Mot. to

Dismiss Pl.'s Compl. 2, Dec. 2, 2010, ECF No. 33
Br.").

(uDefs.' Opening

These turbines were specifically designed to use

asbestos, and Defendants built the turbines pursuant to Navy
contracts.

See id.

Plaintiff contends that Defendants knew of

the dangers of asbestos and failed to warn Plaintiff of such
dangers.

See Pl.'s Br. Opp'n Defs.' Mot. to Dismiss 1-2, Feb. 4,

2011, ECF No. 66 (uPl.'s Br.").
Defendants filed the instant Motion to Dismiss,
pursuant to Federal Rule of Civil Procedure 12(b) (1), contending
that the Court lacks subject matter jurisdiction over Plaintiff's
claims.

Plaintiff responded to the motion, and the Court held

oral argument.

II.

The motion is now ripe for disposition.

LEGAL STANDARD
Defendants move to dismiss pursuant to Federal Rule of

Civil Procedure 12(b) (1) arguing that the Court lacks subject
matter jurisdiction.

In particular, Defendants argue that

3

Plaintiff's cause of action is preempted, and, in the
alternative, argue that this case presents a non-justiciable
political question.

See Defs.' Opening Br. 1-2.

When assessing

these arguments, as they are both factual attacks on the Court's
subject matter jurisdiction, the Court may look beyond the
pleadings to consider whether jurisdiction is proper in this
Court.

See Cestonaro v. United States, 211 F.3d 749, 752 (3d

Cir. 2000).

Plaintiff has the burden to prove that subject

matter jurisdiction exists.

Lightfoot v. United States, 564 F.3d

625, 627 (3d Cir. 2009).

III. DISCUSSION
The Court first addresses Defendants' argument that
Plaintiff's claims are preempted.

Secondly, the Court considers

Defendants' alternative argument that this case presents a nonjusticiable political question.

A.

Preemption
The Supremacy Clause provides that the laws of the

United States "shall be the supreme Law of the Land."
Const. art VI, cl. 2.

U.S.

Out of this command, Congress may preempt

state action in three ways: "State action may be foreclosed by
express language in a congressional enactment, by implication
from the depth and breadth of a congressional scheme that

4

occupies the legislative field, or by implication because of a
conflict with a congressional enactment."
v. Reilly, 533 U.S. 525, 541 (2001)

Lorillard Tobacco Co.

(internal quotation marks and

citations omitted) .
Express preemption requires that a federal law's
language expressly displace state law.

Kurns v. A.W. Chesterton,

Inc., 620 F.3d 392, 395 (3d Cir. 2010), cert. granted on other
grounds, 131 S. Ct. 2959 (2011).

Additionally, implied

preemption may be found in two scenarios: either through (1)
field preemption, when the federal regulation is so sweeping that
no state law can occupy that field, or (2) conflict preemption
when either complying with federal and state law simultaneously
is impossible, or if complying with state law prevents the full
enforcement of the federal law.

Id.

In this case, Defendants do not contend that express
preemption is present.

Rather they rely upon implied preemption

because either federal law and regulations occupy the field of
Plaintiff's state tort law failure to warn claims, 1 or, federal
law and regulations conflict with Plaintiff's state tort law
failure to warn claims.

1

The Court refers to Plaintiff's claims as being brought
under state law for simplicity only. The Court takes no
position, nor is the issue before the Court, of which law, state
or otherwise, applies to Plaintiff's claims. Nor does the Court
opine upon whether Defendants' arguments would have any force if
Maritime law governed Plaintiff's claims.
5

1.

Field Preemption

Defendants argue that the federal regulation of
national defense is pervasive, and the federal interest in
national defense dominates over state law.
room for state law of any kind."

Thus, there is "no

Defs.' Opening Br. 38.

Specifically, Defendants urge upon the Court that as the war
powers 2 and various federal regulations related to national
defense are purely federal interests in which the states have not
traditionally regulated, Plaintiff's claims must be preempted.

a.

Applicable law

Field preemption is the most sweeping of the three
preemption doctrines, displacing all state laws within a
particular area of federal interest.

When determining whether

this doctrine applies, the Court must focus on whether the intent
of the federal law was to displace an entire body of state law in
that field.
(2008).

See Altria Grp., Inc. v. Good, 555 U.S. 70, 76

Moreover, the Court considers "the intended purpose of

2

The war powers are those powers relating to the
military contained within Articles I and II of the Constitution.
See U.S. Const. art. I, § 8, cl. 11-14 (empowering Congress to
"declare War," "raise and support Armies," "provide and maintain
a Navy," and "make Rules for the Government and Regulation of the
land and naval Forces"); id. art. II, § 2 ("The President shall
be Commander in Chief of the Army and Navy of the United States,
and of the Militia of the several States, when called into the
actual Service of the United States
.").
6

the federal regulatory scheme, and what impact any state
regulation would have on that scheme."

Kurns, 620 F.3d at 395.

In areas where states have traditionally legislated there is a
presumption against preemption, in areas that are uniquely
federal, however, such presumption has less force.

United States

v. Locke, 529 U.S. 89, 108 (2000).

b.

Analysis

Field preemption analyses require courts to carefully
balance the interests of the Federal Government and those of the
states.

The inquiry is framed by federalism concerns and

grounded in Supremacy Clause jurisprudence.

As its name

suggests, under the Supremacy Clause, federal law supersedes
state law in areas where federal and state interests clash or
overlap.

Even in areas that are of a unique federal interest,

such as this case, which implicates national defense concerns,
there must be some clear and manifest purpose from the Federal
Government to preempt state law.
518 U.S. 470, 485 (1996).

See Medtronic, Inc. v. Lohr,

Any analysis of implied preemption in

the context of Federal Government procurement of military
equipment from private contractors to be used in connection with
the national defense--whether it be field or conflict preemption-must begin with Boyle v. United Technologies Corp., 487 U.S.
500, 505-06 (1988).

In Boyle Supreme Court undertook to balance

7

the interests of the Federal Government and the rights of the
states in this context.
Boyle involved claims of negligent design of a military
helicopter escape hatch that allegedly caused the death of the
military pilot after the helicopter crashed off the Virginia
coast.

Id. at 502.

The military contract pursuant to which the

defendants designed the helicopter called for the escape hatch to
open out.

Id.

One of Boyle's tort theories was that had the

escape hatch opened inward--and thus the water pressure not
restricted the hatch's opening--the decedent would have been able
to escape.

Id. at 503.

The issue before the Supreme Court was

whether private contractors acting pursuant to specifications in
a government contract could assert a defense (generally referred
.to as the government contractor defense) to immunize them from
suit.
The Supreme Court recognized that the procurement of
military goods was a uniquely federal interest within the
military's discretion.

Id. at 507.

And because this procurement

was within the military's discretion, had the suit been brought
against the United States, the discretionary function exception
to the Federal Tort Claims Act ("FTCA") would have barred all
claims for torts arising out of the procurement of military
goods.

Id. at 511.

The Supreme Court held that private

contractors could enjoy the same tort immunity as the Government

8

under the FTCA. 3

Thus, claims under state tort law against

government contractors are preempted when there is a significant
conflict between the requirements of the government contract and
the requirements of state tort law.

Id. at 512.

In order to

enjoy the benefits of the government contractor defense, however,
a private government contractor would have to satisfy the
following three-prong test:

(1) the United States approved

reasonably precise specifications for the product at issue;

(2)

the equipment conformed to those specifications; and (3) it
warned the United States about the dangers in the use of the
equipment that were known to it but not to the United States.

Important, here, is that the Supreme Court recognized
that state tort law would be displaced only in limited
circumstances, rejecting the claim for sweeping preemption of all
claims by servicemen and women against government contractors.
See id. at 509.

To that end, the Supreme Court expressly

rejected basing preemption on an extension of the Feres

3

Technically, the FTCA waives sovereign immunity, and
the discretionary function exception makes the FTCA inapplicable
to acts falling under that exception.
28 U.S.C. § 2680(a)
(2006). Thus, the exception retains sovereign immunity for the
United States under these circumstances.
9

doctrine, 4 which would have prevented suit against a government
contractor by any military personnel. 5

Id. at 510.

The Feres doctrine states that the FTCA will not allow
redress against the Government for injuries to Armed Service
personnel sustained during their military service.
Feres v.
United States, 340 U.S. 135, 146 (1950).
4

Although Boyle was a conflict preemption case, its
teachings reflect the Supreme Court's balancing of federal and
state interests in the area of government procurement, and its
teachings are no less forceful in the context of field
preemption. This Court has previously recognized that "under
[our] system, lower courts are obligated to follow both the
narrow holding announced by the Supreme Court as well as the rule
applied by the Court in reaching its holding." United States v.
Powell, 109 F. Supp. 2d 381, 383-84 (E.D. Pa. 2000) (citing Casey
v. Planned Parenthood, 14 F.3d 848, 856-57 (3d Cir. 1994)
(examining role of Supreme Court precedent); Loftus v. Se. Pa.
Transp. Auth., 843 F. Supp. 981, 984 (E.D. Pa. 1994) (same);
Piazza v. Major League Baseball, 831 F. Supp. 420, 437-38 (E.D.
Pa. 1993) ) .
5

Indeed, "our system of precedent or stare decisis is .
. . based on adherence to both the reasoning and result of a
case, and not simply the result alone." Casey, 947 F.2d at 692.
"If the rule were otherwise, the Supreme Court's 'limited docket'
would limit the Court's authority only to the 'handful of cases
that reached it.'" Powell, 109 F. Supp. 2d at 384 (quoting
Planned Parenthood v. Casey, 947 F.2d 682, 691 (3d Cir. 1991),
aff'd in part and rev'd in part on other grounds, 505 U.S. 833
(1992)). Thus, in this case, the Court must apply not only the
holding of Boyle but also the balancing of federal interests and
state interests that the Supreme Court made in that case.
In
fact, since Boyle, the Supreme Court stated that, in terms of
preemption cases, Boyle is a limited circumstance where federal
law will displace state tort law.
See Correctional Servs. Corp.
v. Malesko, 534 U.S. 61, 74 n.6 (2001) (explaining that Boyle was
a "special circumstance" in the case where the "government has
directed a contractor to do the very thing that is the subject of
the claim"). Thus, it is clear that Boyle stands for the rule
that displacement of state law in favor of the federal interest
in government procurement is a limited and "special
circumstance." Id.
10

Having declined the invitation to preempt all claims
based on state law against private military contractors, Boyle
explained that while there may be situations where state law and
federal interests directly conflict,

"it is easy to conceive of

an intermediate situation, in which the duty sought to be imposed
on the contractor is not identical to one assumed under the
contract, but is also not contrary to any assumed."

Id. at 509. 6

The Supreme Court stated that "[n]o one suggests that state law
would generally be pre-empted in this context."
added).

Id.

(emphasis

Further, even in a case where the requirements of a

contract with the Government and state tort law directly
conflicted, the Supreme Court explained that "it would be
unreasonable to say that there is always a 'significant conflict'
between the state law and a federal policy or interest."

Id.

Because in this general context Boyle seemingly rejected the very
premise of the argument Defendants press upon the Court here,
that federal laws and regulations occupy the field of state tort
law, their argument must be similarly rejected here.
Nor do Defendants point to any congressional enactment
that allows the Court to infer an intent to preempt the field of
state tort law pertaining to failure to warn of asbestos's

6

Indeed, the instant case may fit more within the
"intermediate situation" referred to in Boyle as the parties
dispute whether or not Defendants could have simultaneously
complied with their duties to the Government and their state law
duty.
See infra, at 13, 17.
11

dangers on Naval ships. 7

This congressional silence is

persuasive because such congressional intent is the cornerstone
for traditional field preemption cases.
Commerce v. Brown, 554 U.S. 60, 73 (2008)

See, e.g., Chamber of
(holding that

California law providing funds to support unions was preempted by
the National Labor Relations Act); Campbell v. Hussey, 368 U.S.
297, 301 (1961)

("Congress, in legislating concerning the types

of tobacco sold at auction, preempted the field and left no room
of any supplementary state regulation concerning those same
types.").
Despite this congressional silence, Defendants argue
that in the case of Navy servicemen and women serving aboard Navy
ships there is always a significant conflict with respect to the
duty to warn of asbestos dangers and, therefore, the Court should
preempt the field of state tort law.

Defs.' Opening Br. 37-40.

The Court finds this argument unavailing.

Defendants contend

that the affidavits of Admiral Roger B. Horne, Dr. Samuel A.
Forman, and Dr. Lawrence S. Betts, all former Naval officers,
support this argument.

Specifically, Defendants seem to argue

that the affidavits make clear that, in the context of warnings
about the danger of asbestos, the Navy had exclusive control over

7

To be sure, Defendants cite to military specifications
in connection with several Naval officer affidavits.
These
specifications support the conclusions made by the affiants and
are discussed infra.
12

all aspects of warning servicemen and women.
22, 30, 32, 37 (b)

1

See Horne Aff. ~~

Defs.' Opening Br. Exs. El, E2; Forman Aff. ~~

17, 25, 36, 3 71 55, 56, Defs.' Opening Br. Ex. F; Betts Aff. ~~
30, 43, 47, 49, 51, Defs.' Opening Br. Exs. Gl, G2.
To be sure, courts find field preemption in cases where
"feqeral regulation [is] so pervasive [for] courts as to make
reasonable the inference that Congress left no room for the
I

Sta~es to supplement it."

U.S. 218, 230 (1947).

Rice v. Santa Fe Elevator Corp., 331

That is, in cases involving an area over

which the Federal Government has exclusive control, such as
for~ign

abs~nt
I

policy, the Supreme Court has sometimes found preemption
some clear indication from Congress that it intended to

I

pre~mpt
I

the field.

See Am. Ins. Assn. v. Garamendi, 539 U.S. 396

(20~3); Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363
(20~0).

Yet, such cases do not affect the result here.

For

I

example, in Crosby, the Supreme Court struck down a Massachusetts

I

law! that prevented state entities from conducting business with
companies that did business in Burma because Congress had already
i

ena~ted

a law sanctioning Burma for its human rights violations.

Crosby, 530 U.S. at 366-67, 73.
I

The state law was enacted to, in

i

eff~ct,

sanction Burma.

Id. at 368.

Sanctioning a foreign

I

natlion is a decidedly federal power, and the Massachusetts law,

whi~ch

undermined this power, was preempted.

13

Id. at 375-76.

In contrast, this case involves a well recognized state
func~ion--tort

law in the context of personal injury--not a

specific state law directed at a decidedly federal power.

In

cases where a state has demonstrated "traditional competence,"
but the state law affects an important federal interest, such as
foreign relations, the Supreme Court has stated that field
preemption is generally inappropriate and that "it might make
good sense to require a conflict, of a clarity or substantiality
that would vary with the strength or the traditional importance
of the state concern asserted."

Am. Ins. Ass'n, 539 U.S. at 420

n.11; cf. Hines v. Daivdowitz, 312 U.S. 52, 75 (1941)
dissenting)

(Stone, J.,

("The Judiciary of the United States should not

assume to strike down a state law which is immediately concerned
with the social order and safety of its people unless the statute
plainly and palpably violates some right granted or secured to
the national government by the Constitution or similarly
encroaches upon the exercise of some authority delegated to the
Untied States for the attainment of objects of national
concern.").
While Defendants proffer affidavits from former Naval
officers concerning possible friction between Navy regulations
and state law duty to warn that impacts the chain of command
structure in the Navy, even assuming such affidavits are correct,
the evidence is simply insufficient to "plainly and palpably"

14

show that the state duty to warn "violates some right granted or
secured," or "encroaches upon the exercise of some authority
delegated," to the Executive and Legislature to control the Navy.
Hines, 312 U.S. at 75 (Stone, J., dissenting).

Here, the naked

assertions of three Naval officers, regardless of pedigree, are
insufficient to show a clear and manifest purpose of the Federal
Government to preempt state law.
At bottom, without sufficient evidence that locates
the intent to preempt state law within the Constitution, by
action of Congress, or some other federal policy to displace the
entire field of state tort law with respect to Plaintiff's claims
(i.e., asbestos exposure claims by servicemen aboard Naval
vessels), this case falls within the Boyle limiting principle. 8
Accordingly, the Court holds that the war powers, federal
regulations, and law related to government procurement do not
occ~py

the field of state tort law as it relates to Defendants'

duty to warn.

8

Moreover, in cases where the Supreme Court has
preempted the field, it does not leave the plaintiffs empty
handed, but rather substitutes some federal common law regime.
Saleh v. Titan Corp., 580 F.3d 1, 31-32 (D.C. Cir. 2009)
(Garland, J., dissenting). Defendants do not suggest some other
redress for Plaintiff, but simply request that the Court abandon
the field.
Such a result is inconsistent with precedent.
Id. at
32; see Clearfield Trust Co. v. United States, 318 U.S. 363, 36667 (1943).
15

2.

Conflict Preemption

As an alternative to their field preemption argument,
Defendants contend that the Court lacks subject matter
jurisdiction because the state tort claims at issue here--failure
to warn--conflict with the concept that the "Federal Government
(specifically, the President and Congress) exercise plenary
control in the exercise of war powers, including military
operations and the procurement and utilization of whatever goods
and materials the Federal Government deems necessary to those
operations."

Defs.' Opening Br. 41. 9

Like their field

preemption argument, this argument lacks merit.

a.

Applicable law

The doctrine of conflict preemption generally arises in
two circumstances.

First, when there is actual direct conflict

between federal law and state law.

See Boyle, 487 U.S. at 504.

Second, even if there is no direct conflict, there is conflict
preemption when "state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives
of Congress."

Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458

U.S. 141, 153 (1982).

While in most cases there is a presumption

against preemption, in cases that involve a uniquely federal

9

Not surprisingly, Defendants' conflict preemption
argument has the sound and look of field preemption.
16

interest--such as this case--this presumption has less force.
See Locke, 529 U.S. at 108.

Moreover, in such cases, the

conflict between state and federal regulations need not be as
sharp as when the conflicting federal regulation is not one of
uniquely federal interest.
Nonetheless,

See Boyle, 487 U.S. at 507-08.

"conflict there must be."

b.

Id. at 508.

Analysis

Just like under field preemption, in the case of a
government procurement contract, Boyle controls.

Defendants,

however, suggest Boyle does not foreclose the Court from finding
conflict preemption under the specific facts of this case.

In

support of their argument, Defendants point to testimony of
Admiral Horne, Dr. Forman, and Dr. Betts that states that the
Navy would not have allowed Defendants to warn of asbestos's
dangers.

See supra, at 12.

Plaintiff, on the other hand,

contradicts this evidence with testimony of his own expert that
the Navy would not have prevented Defendants from warning about
asbestos hazards.

See, e.g., Moore Aff. ,

27, ECF No. 67

("Adding warning labels to machinery and equipment supplied to
the Navy was easily accomplished and was not prohibited by the
Navy.").

Rather than taking this dispute out of Boyle's range,

the issue here goes to the heart of the Boyle test's first prong-whether the Navy issued reasonably precise specifications for

17

the product at issue.

Boyle, 487 U.S. at 512; see Willis v. BW

IP Int'l Inc., No. 09-91449, --- F. Supp. 2d ---, 2011 WL
3818515, *7 (E.D. Pa. Aug. 29, 2011)

(Robreno, J.)

(holding that

this battle of experts raises genuine issues of material fact
concerning the applicability of the government contractor
defense) .
Yet, Defendants argue that the Court should "move
beyond the government contractor defense" announced in Boyle and
hold that the Court lacks subject matter jurisdiction over claims
by servicemen and women against the Navy for its decisions
regarding turbine design and use of asbestos insulation.
50.

Id. at

In support, Defendants rely upon Saleh v. Titan Corp., 580

F.3d 1 (D.C. Cir. 2009), where the plaintiffs were Iraqi citizens
who alleged that the defendants participated in torture during
interrogation along with the military at the Abu Ghraib military
prison.

Id. at 2.

The military employed the defendants because

there was a shortage of military personnel trained to perform
these "critical wartime tasks."

Id.

It was claimed that the

military outlined the protocol and techniques allowed for
interrogations and the defendants assisted the military in
interrogating prisoners.

Id.

The plaintiffs sued the defendants

for the alleged torts committed upon them by the defendants
during their interrogations.

Id.

18

The court in Saleh held that federal law preempted the
plaintiffs' state tort law claims, based upon the combatant
activities exception to the FTCA. 10

This exception immunizes the

military from "tort[s] from the battlefield."

Id. at 7.

Analogizing to Boyle's treatment of the discretionary function
exception under the FTCA, the court explained that had the
defendants been military personnel, the FTCA's combatant
activities exception would preempt private action against the
Government.

Thus, just as the Supreme Court extended the

discretionary function of the FTCA, which protected the
Government from liability for certain actions, the court in Saleh
extended the combatant activities exception of the FTCA to
government contractors.

Specifically, the court held that

"[d]uring wartime, where a private service contractor is
integrated into combatant activities over which the military
retains command authority, a tort claim arising out of the
contractor's engagement in such activities shall be preempted."
Id. at 9. Defendants urge the Court to do the same thing--apply
Boyle to create a new preemption holding for cases involving the
Navy's use of asbestos in the turbines used to propel submarines.

10

The combatant activities exception to the FTCA's waiver
of sovereign immunity excepts "any claim arising out of the
combatant activities of the military or armed forces, or the
Coast Guard, during time of war." 28 U.S.C. § 2680(j) (2006).
19

Saleh is not helpful to Defendants in this case.

In

Saleh, the defendants performed a uniquely military service-interrogation at a military prison during wartime.

In essence

the Saleh defendants had stepped directly into the shoes of
military personnel.

Here, by contrast, Defendants are not

involved in military operations during wartime.

Rather,

Defendants' role was to supply equipment to be used by the Navy
aboard Naval vessels, a factual scenario squarely within the
contours of Boyle and far afield from the circumstances in Saleh
that prompted that court to look beyond Boyle.
Defendants urge the Court to recognize that cases
involving design of equipping combat vessels and preparing
servicemen and women for battle preempts state law tort claims
because such cases are uinextricably intertwined with the overriding objective that the Navy be ready to successfully fight
wars and deter enemy aggression in the interests of national
defense."

Defs.' Opening Br. 44.

Specifically, the Navy's

strong interest in controlling the warnings used in connection
with military equipment.
Defendants have failed to provide sufficient evidence
for the Court to find that the Government's interest here is
different than that in Boyle.

Indeed, the Supreme Court

explained that udesigning military equipment .
discretionary function . .

"

is assuredly a

Boyle, 487 U.S. at 511.

20

Moreover, such design "involves not merely engineering analysis
but judgment as to the balancing of many technical, military, and
even social considerations, including specifically the trade-off
between greater safety and greater combat effectiveness."
(emphasis added) .

Id.

These policy interests are equally forceful

here.
Finally, Defendants' proposed expansion of Boyle is a
prescription for a voyage to terra incognita.

As Judge Garland

stated in his Saleh dissent, "[o]nce we depart from the limiting
principle of Boyle, it is hard to tell where to draw the line."
Saleh, 580 F.3d at 23 (Garland, J., dissenting).

In actuality,

Defendants' request for the Court to move beyond Boyle under the
doctrine of conflict preemption, without a limiting principle,
would blossom into full field preemption.
Thus, in light of Boyle, this Court finds Defendants'
argument that federal law preempts Plaintiff's failure to warn
claims without regard to the three-prong Boyle test unavailing.
And, the Court holds that neither field nor conflict preemption
applies to Plaintiff's claims of failure to warn of the dangers
of asbestos.

21

B.

Political Question Doctrine
In addition to Defendants' argument that Plaintiff's

claims are preempted, Defendants also argue that Plaintiff's
claims present a non-justiciable political question.

1. Applicable Law
The political question doctrine has deep roots in
American jurisprudence.
Cranch) 137, 170 (1803)

See Marbury v. Madison, 5 U.S.

(1

("Questions, in their nature political,

or which are, by the constitution and laws, submitted to the
executive, can never be made in this court.").

At its core,

"[t]he political question doctrine 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'y, 478 U.S. 221, 230
(1986) .

Yet, "the fact that the resolution of the merits of a

case would have 'significant political overtones does not
automatically invoke the political question doctrine.'"

Khouzam

v. Attorney Gen. of U.S., 549 F.3d 235, 249-50 (3d Cir. 2008)
(quoting I.N.S. v. Chadha, 462 U.S. 919, 942-43 (1983)).

Indeed,

the Court must be vigilant to not construe a "political case" as
a "political question."

Baker v. Carr, 369 U.S. 186, 217 (1962).

22

The modern treatment of the political question doctrine
begins with Baker v. Carr.

In that case the Supreme Court held

justiciable claims of malapportionment of state legislatures that
violate the Equal Protection clause. 11

In holding the claim

justiciable, Baker provided the following six independent factors
to guide the Court's justiciability determination:
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; (2) or a lack of judicially
discoverable and manageable standards for resolving it;
(3) or the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial
discretion;
(4) or the impossibility of a court's
undertaking independent resolution without expressing
lack of
the respect due
coordinate branches
of
government; (5) or an unusual need for unquestioning
adherence to a political decision already made; (6) or
the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
Baker, 369 U.S. at 217.

A tangential relationship between the

merits of a case and one of these six factors is insufficient for
the Court to find that there is a political question; the factor
must be "inextricable from the case at bar."

11

Id. at 217.

At the heart of the case was the issue of whether
Congress or the courts were the proper vehicle to correct the
alleged malapportionment. Colegrove v. Green, 328 U.S. 549
(1946), had held only seventeen years before that the issue was
for Congress to remedy, if at all, and non-justiciable for the
courts.
23

2.

Analysis

Defendants contend that the Court will necessarily have
to rule on the prudence of the Navy's use of asbestos.
Defs.' Opening Br. 54.

See

Moreover, Defendants argue that the

Court's adjudication of whether the Navy would have allowed or
not allowed warnings--a key inquiry into the government
contractor defense under Boyle--is non-justiciable.
55-57.

See id. at

Indeed, Defendants argue that any adjudicating of this

suit requires the Court to second guess the Navy and its warning
policies.

See id.
Plaintiff, on the other hand, argues that this suit is

an ordinary tort suit between two private parties.
71.

See Pl.'s Br.

As such, the Court need not inquire or second guess any

Naval policy on the use of asbestos.

See id. at 72.

Nor does

the Court have to second guess the Navy's warning procedures.
See id.

All the Court--and the fact-finder--must do is determine

what the Navy did or did not allow with respect to warnings and
rule on the liability of Defendants pursuant to well-defined
state tort law principles.

a.

See id.

Defendants' Arguments Under the Baker Factors

Defendants invoke four of the Baker factors in support
of their argument that Plaintiff's claims are non-justiciable.

24

In particular, Defendants argue that Plaintiff's claims are
inextricable with any one of the following factors:
(1) a textually demonstrable constitutional commitment of
the issue to a coordinate political department; (2) or a
lack of judicially discoverable and manageable standards
for resolving it; (3) or the impossibility of deciding
without an initial policy determination of a kind clearly
for nonjudicial discretion; (4) or the impossibility of
a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government.
Baker, 369 U.S. at 217.

Distilled to their essence, all four

Baker factors ask whether, in deciding the case, the Court will
pass judgment upon the policies and procedures of the Executive
or the Legislature.

In the case at hand, the Court may perform

its constitutional role without offending the doctrine of
separation of powers.
Adjudicating whether Defendants were required to warn
of the dangers of asbestos in connection with the supply of
propulsion turbines to the Navy for use in Navy warships does not
implicate a political question.

Plaintiff's claims do not

challenge the Navy's wisdom in deciding to use asbestos, nor do
they seek to second guess the Navy's judgment as to the wisdom or
propriety of its warning policy.

Moreover, if successful, the

claims will not make the Navy liable for any injury.
Rather, this action is between private parties based on
well defined tort law principles.

It does not involve a

challenge by a coordinate branch to another branch's decision.

25

It is not, in short, the type of struggle for inter-branch
supremacy that the doctrine of separation of powers and its
corollary, the political question doctrine, seeks to avoid.
To be sure, a judicial inquiry into what Navy policy
was (in connection with equipment warnings) at the time Plaintiff
served on a Navy vessel may be required.

Yet, this inquiry does

not implicate the wisdom and soundness of the Navy's policies or
procedures.

The issue here is what the policy was with respect

to warnings, not what it might (or should) have been.

Thus, none

of the four Baker factors Defendants cite to are inextricable
with the merits of Plaintiff's claims.

b.

The Political Question Doctrine's Limited Use

Even beyond the analysis of the Baker factors, the
limited use of the political question doctrine counsels in favor
of finding justiciability in this case.

The invocation of the

political question doctrine, and indeed a court's holding that a
case presents a political question, does not call for a
jurisdictional assessment of whether there is a "case or
controversy" within the meaning of Article III.

See Baker, 369

U.S. at 198-99; Erwin Chemerinsky, Constitutional Law: Principles
and Policies 136 (4th ed. 2011) .
Rather, courts find a political question when
adjudication of the case causes concerns over, inter alia, the

26

separation of powers.

Baker, 369 U.S. at 210; cf. Chemerinsky,

supra, at 133-36 (summarizing arguments for and against the
political question doctrine and questioning whether it is a
constitutional or prudential doctrine) .

This abdication,

however, is a limited one--courts have found political questions
in only a few discrete areas including issues related to "the
republican form of government clause and the electoral process,
foreign affairs, Congress's amendments, instances where the
federal court cannot shape effective equitable relief, and the
impeachment process."

Chemerinsky, supra, at 133 (collecting

cases) .
The only area arguably relevant to this case is that of
foreign affairs.

And, in that area the Supreme Court has found

non-justiciable claims in only limited areas and special
circumstances.
(1997)

See United States v. Belmont, 301 U.S. 324, 330

(finding a political question on whether the Executive

recognized a foreign government); Goldwater v. Carter, 444 U.S.
996, 996 (1979)

(finding a political question on the process for

ratification or recision of a treaty); Commercial Trust Co. v.
Miller, 262 U.S. 51, 57 (1923)

(finding non-justiciable dispute

over when a war officially ends); see also Holtzman v.
Schlesinger, 484 F.2d 1307, 1309 (2d Cir. 1973)

(dismissing

challenge to the president's use of the military without a

27

congressional declaration of war) .

These limited areas are not

at issue in this case.

c.

Recent Cases Invoking the Political Question
Doctrine in Government Contracts

While indeed some lowers courts have recently held
claims against government contractors in the recent Iraq war nonjusticiable, those cases are inapposite from this case.

For

example, in Carmichael v. Kellogg, Brown & Root Services Inc.,
the Eleventh Circuit found a political question pertaining to a
government contractor's negligence.
Cir. 2009).

572 F.3d 1271, 1296 (11th

In that case, the plaintiff was an Army soldier that

was part of a convoy of vehicles transporting fuel in Iraq.
at 1278.

Id.

The defendant's employee was driving one of the

vehicles and crashed, causing injuries to the plaintiff.

Id.

The court there held that adjudication of the case would require
inquiry into sensitive military judgments because, while the
defendant's employee was driving the tanker, the military
exclusively controlled all aspects of the convoy including speed,
route, how much fuel to transport, and the distance between
vehicles.

Id. at 1281-82.
Also, the Fourth Circuit recently held that a tort

claim against a government contractor presented a political
question.

See Taylor v. Kellogg, Brown & Root Servs. Inc., 658

F.3d 402, 412 (4th Cir. 2011).

In that case, the plaintiff, a
28

Marine, was electrocuted and injured while installing a
electronic wiring box on a military base in Iraq.

Id. at 403-04.

In particular, the plaintiff was seeking to add a power generator
to the Tank Ramp 12 in order to alleviate recurrent power outages.
Id.
box.

In order to do this, the plaintiff had to install a wiring
Id.

The defendant was a government contractor that was to

provide repairs to the same electrical system that the plaintiff
was repairing.

Id.

The military advised the defendant not to

turn on power to that system until the plaintiff had finished his
work.

Id.

Despite this warning, the defendant did turn on the

electrical power, and the plaintiff was electrocuted.

Id.

The

military policy in place was that the Tank Ramp did not have a
secondary power source and that all additions of back-up power
had to be approved.

Id. at 406.

The Tank Ramp was not approved

for back-up power and, thus, the plaintiff was acting without
approval when he installed the wiring box.

Id.

There, the court held that an adjudication of the
plaintiff's negligence claims against the defendant presented a
political question because the defendant asserted a contributory
negligence defense against the plaintiff for acting outside of
military policy.

Id. at 412.

Because of this defense, the court

concluded that it would necessarily have to decide nwhether back-

12

A Tank Ramp was the area on the military base used for
maintenance of tanks, assault vehicles, and Humvees. Taylor, 658
F.3d at 404.
29

up power should have been supplied to the Tank Ramp area,"
clearly invoking a political question.

Id.

(quotations omitted) .

These cases traverse a common thread different from
this case.

They require the courts to second guess military

operational judgment, whether that be the speed and timing by
which to send a military convoy through Iraq, or the wisdom of
the military's procedures for electrical repairs.

Indeed,

adjudicating the claims in Carmichael and Taylor would require
the Court to determine in hindsight whether the military policy
was correct.

In turn, this adjudication would necessarily affect

future military policy.

Thus, those cases present the type of

claims the political question doctrine seeks to preclude from
judicial review--claims that required courts to determine the
wisdom of military policy. 13

In contrast, as explained above,

this case requires the opposite.

It only requires a

13

Again, this case is quite different from cases where a
government contractor is itself performing an essential military
function.
See Al Shimari v. CACI Int'l, Inc., 658 F.3d 413, 423
(4th Cir. 2011) (Niemeyer, J., concurring) (holding that the
first Baker factor is implicated when a government contractor
performs interrogation on a military base because interrogations
were for military purposes and the military instructed on
interrogation techniques) . This distinction between essential
military functions and non-essential functions is illustrated
when comparing Al Shimari with Harris v. Kellogg, Brown & Root
Servs., Inc., 618 F. Supp. 2d. 400 (E.D. Pa. 2009).
In a
comprehensive opinion, Judge Fisher held that a negligence claim
by a military officer against the defendant for negligent
electrical maintenance was not a political question.
Id. at 432.
In that case, the defendant had exclusive control and duty to
keep the military base safe--in terms of building maintenance-for the servicemen and women.
Id. at 405.
30

determination by the Court or fact-finder about what the Navy's
policies and procedures regarding warning about the dangers of
asbestos were, not whether they were correct. 14

d.

The Political Question Doctrine's Effect on
the Government Contractor Defense

Finally, finding that Plaintiff's claims present a nonjusticiable political question would upset years of jurisprudence
in asbestos litigation and also call into doubt the applicability
of Boyle to government procurement contracts. 15

The Court cannot

and, of course will not, under the guise of the political
question doctrine, avoid the clear direction of Boyle.
In sum, the Court's adjudication of Plaintiff's claims
against Defendants for failure to warn of the dangers of asbestos
are justiciable.

While there may be political overtones to the

Navy's choice of policies as to what warnings were permitted, if
any, the Court may adjudicate the instant controversy without

14

Defendants argue that if Plaintiff is successful the
Court would upset the Naval chain of command vis-a-vis hazard
warnings. This is not the case. Under the government contractor
defense, if the Navy had a policy for contractor warnings that
met the Boyle test, Defendants would be immune from liability.
Defendants' chain of command argument goes to the heart of
Boyle's government contractor defense.
15

The brief of the respondent (the government contractor)
in Boyle invoked several of the Baker factors in support of a
sweeping government contractor defense.
Brief for Respondent at
17, 22-28, Boyle v. United Techs. Corp., 487 U.S. 500 (1988) (No.
86-492). The Supreme Court, however, did not discuss or base its
holding upon the respondent's argument.
31

second guessing these judgements, thus staying clear from the
province of the Executive or Legislature.

IV.

CONCLUSION

For the reasons set forth above, Defendants' motion
will be denied.

An appropriate order shall follow.

32