Legal precedent sets a high bar for deposing ‘high-level’ government officials.

The four-star admiral who commanded the U.S. Pacific Fleet when Navy fuel contaminated Oahu’s drinking water in 2021 won’t have to answer questions under oath about it, a federal magistrate judge ruled Thursday.

Families who were sickened by the tainted water are suing the Navy and had hoped to depose Navy Adm. Samuel Paparo. Their attorneys argued that he was a key player in failing to warn residents that the water was unsafe following two catastrophic leaks at the Red Hill fuel facility.

Adm. Samuel Paparo, Commander, U.S. Pacific Fleet, is piped aboard the Arleigh Burke-class guided-missile destroyer USS McCampbell (DDG 85) during a scheduled visit to the ship. During the visit, Paparo met with the crew and addressed questions about operations in the Pacific Fleet. McCampbell is currently pierside in its homeport of Everett, Washington. (U.S. Navy photo by Ensign Claire Ruotolo)
Adm. Samuel Paparo, commander of U.S. Pacific Fleet, will not have to answer to attorneys representing families impacted by the Red Hill contamination crisis. (U.S. Navy/2022)

The Department of Justice opposed the request, saying that Paparo is so high-ranking that only “extraordinary circumstances” would warrant deposing him. Just this month, Defense Secretary Lloyd Austin nominated Paparo to be the next chief of naval operations. His nomination is subject to approval by President Joe Biden.

In a written ruling, U.S. District Court Magistrate Judge Kenneth Mansfield sided with the government.

Mansfield pointed to court precedent from the 9th U.S. Circuit Court of Appeals that centered on whether former U.S. Department of Education secretary Betsy DeVos could be deposed. That decision let DeVos off the hook from giving sworn testimony.

The appeals court said three elements are required to depose a high-ranking government official: a showing of bad faith by the agency, the information sought from the witness is essential to the case, and the information cannot be obtained any other way.

The justification for limiting these depositions is that very senior government leaders have “greater duties and time constraints than other witnesses,” Mansfield said, citing another federal court decision.

In court on Wednesday, DOJ attorney Caroline Stanton said the plaintiffs only seek to “harass” Paparo and that his testimony wouldn’t be relevant in proving causation or damages.

Attorney Jim Baehr, who is representing Red Hill families, argued that his team would limit the deposition to three hours and would be willing to seal it to protect national security concerns. But he emphasized Paparo is a “pivotal figure” in the military’s failure to warn residents about the public health threat.

In the end, Mansfield said the request to depose Paparo does not meet the required elements.

Fuel leaks at Red Hill sickened thousands and resulted in sustained protests to shut down the Navy facility. (David Croxford/Civil Beat/2022)

“The DeVos analysis binds this Court,” Mansfield wrote in his ruling.

While the federal government has admitted to breaching its standard of care in the time during and between two leaks at Red Hill in May and November 2021, “it has not admitted that it did so in bad faith,” Mansfield said.

The plaintiffs failed to show Paparo had “unique, first-hand knowledge” that pertains to their negligence claims, according to Mansfield.

“Additionally, Plaintiffs have not established that they have exhausted other less intrusive discovery methods,” the judge said.

The judge noted plaintiffs haven’t asked to depose individuals with “more direct oversight of Red Hill,” including officials with the Naval Supply Systems Command; Naval Facilities Engineering Systems Command; nor fuel directors with Fleet Logistics Center Pearl Harbor.

The plaintiffs also haven’t sought to depose any of the military’s contractors at Red Hill, the judge noted. Shoddy work by those entities has drawn scrutiny. In collaboration with the Navy, defense contractor Hensel Phelps’ decision to install PVC piping instead of steel in Red Hill’s fire suppression system. That was later identified as a key factor that caused the crisis, military investigators found.

“Plaintiffs have not, to the Court’s knowledge, directed discovery at any of these entities or
individuals,” Mansfield wrote.

In a statement, plaintiffs’ attorney Kristina Baehr indicated the case will continue to move forward.

“While Admiral Paparo himself will not testify, the evidence will speak for itself,” she said.

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