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United States District Court, N.D. Illinois

January 26, 2004.


The opinion of the court was delivered by: JAMES ZAGEL, District Judge


There are no material undisputed facts in this case, but there are serious disagreements over the meaning of the known facts.*fn1 For purposes of this opinion, I assume that the air traffic controller's conduct on July 19, 1997 was a proximate cause of the disaster that led to the loss of seven lives. I also assume that the disaster would have been avoided had there been just one Page 2 more controller working Meigs on that shift — either because there was so much traffic at the time in question that a single controller could not properly control it or because the strain of working alone fatigued the controller and impaired her judgment.*fn2

After pre-trial rulings, the only remaining issue is the alleged failure of the FAA to timely approve the request of its independent contractor — Midwest Air Traffic Control Services, Inc. ("Midwest") — for an additional controller. Under the contract, Midwest could put as many controllers as it wished at Meigs but the FAA would only pay for the services of those it approved. Midwest had petitioned the FAA to allow it to hire an additional controller because it believed the traffic justified one. The regional FAA thought Midwest was right and sent the request to Washington, which did approve it. The approval took a few weeks to obtain. Had it been approved earlier there would, I assume, have been an extra controller and the disaster, I assume, would not have occurred.

  The Government offers two defenses — a merit-based and an immunity-based one — both of which I accept. On the merits, I find that the Government took a reasonable amount of time to decide whether to pay for an extra controller. The request was not forwarded to Washington as one that required urgent action. Midwest's person in charge did not think it was an emergency. Moreover, the FAA was entitled to believe that if safety were an issue, Midwest would add another controller at its own expense which it was free to do. Midwest's own bid for the contract said specifically that, if necessary, it would add a controller at no increase in the contract price, Page 3 and it stated that it had a fast response team of experienced controllers who could quickly be added as an effective controller resource. Finally, some days before the disaster occurred, Midwest was advised that it had been "given a verbal OK by Contracts at [FAA] Headquarters to hire another full-time controller at Meigs," at least until the end of the month in which the disaster occurred. Absent a contention that Midwest was prohibited from using contract controllers without direct FAA supervision of the controllers' performance, the FAA was reasonable in its dealing with Midwest.

  The second FAA defense is that its alleged negligent oversight falls within the discretionary function exception to the Federal Tort Claims Act ("FTCA"). An exception to the waiver of immunity contained in the FTCA is that no liability shall lie for claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved the abused." 28 U.S.C. § 2680(a). Whether the discretionary function exception applies depends upon two factors: (1) whether government employees violated a specific mandatory statute, regulation, or policy, and (2) whether the conduct involved was the type of conduct that Congress intended to shield from liability. See Berkovitz by Berkovitz v. United States, 486 U.S. 531 (1988); Calderone v. United States, 123 F.3d 947, 949 (7th Cir. 1997).

  Addressing this issue at the summary judgment stage, I found the Government had not proved the discretionary function exception applies here, which it bears the burden of proving. See GATX/Airlog Co. v. United States, 234 F.3d 1089 (9th Cir. 2000). I found that the FAA had effectively prevented Midwest from coming into conformity with FAA Order 7210.3's requirement for "supervision of each watch regardless of the number of persons assigned" by Page 4 delaying approval of additional controllers for a period of three months. After considering this issue in further detail and with the assistance of live and deposition testimony, I think that the Government has now proved that the discretionary function exception allies here. The usual context of "discretion" in these cases is the decision by the executive where to spend the time and money, the resources, of the country. Whether and when a tower ought to be staffed by one or two controllers are classic exercises of executive discretion. But more importantly, the FAA's actions did nothing to prevent Midwest from complying with any FAA orders.

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