The opinion of the court was delivered by: JAMES ZAGEL, District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This litigation arises out of the mid-air collision of two
small aircraft over the Chicago lakefront on July 19, 1997, which
resulted in the deaths of all seven occupants of both aircraft.
Both aircraft were receiving air traffic control services from
the Meigs Field control tower, operated by Midwest Air Traffic
Control, Inc. ("Midwest"), a private contractor to the Federal
Aviation Administration ("FAA"). Plaintiffs in these four
consolidated actions represent the estates and survivors of the
decedents. They seek monetary damages for wrongful death from the
United States under the Federal Tort Claims Act ("FTCA"),
28 U.S.C. § 1346(b)(1).
The Court's pre-trial rulings narrowed the scope of this
action. In its Memorandum Opinion and Order of September 7, 2001,
156 F. Supp.2d 908, 911-912, the Court held that Midwest was an
"independent contractor" to the FAA and dismissed the allegations
that the FAA could be held vicariously liable for the alleged
negligent acts of its contractor. The Court further dismissed, as
discretionary functions for which the United States has sovereign
immunity, the FAA's decision to give Midwest dominion over
hiring, training, and quality assurance, as well as the FAA's decisions about how to monitor Midwest's compliance
with safety or staffing standards.
The Court ordered bifurcation of the trial into two phases:
Phase I: Whether plaintiffs can prove either of the
two allegations of negligent contract administration
[discussed below]? If so, whether plaintiffs can
prove that such negligent contract administration
caused or contributed to Midwest's having
inadequately trained, or inadequate numbers of, air
traffic controllers on duty at the time of the
accident? If so, whether the United States can prove
that any such negligent contract administration was a
"discretionary function" and therefore exempt from
suit under the FTCA?
Phase II: Whether plaintiffs can prove that the air
traffic control services provided by Midwest at the
Meigs Tower to the two aircraft were negligent, and
that such negligence caused or contributed to the
mid-air collision? Whether defendants can prove that
the pilot(s) of the two aircraft were negligent, and
that such negligence caused or contributed to the
mid-air collision? What damages can plaintiffs prove
under Illinois law?
Order, Oct. 3, 2002; Order, March 21, 2003.
The allegations that were tried to the Court in the first phase
of trial were: (1) whether Michelle Behm, then the Manager for
the Hub that included Meigs Tower, properly administered a
"practical test" to Midway Tower Supervisor Doreen Adams before
Ms. Adams certified the independent contractor's air traffic
controllers at Meigs Tower, and (2) whether the FAA unreasonably
delayed in responding to the contractor's request for a contract
modification to pay for permanently increased staffing at Meigs
Tower, and whether this allegedly unreasonable delay caused
Midwest Air Traffic Control Services not to be in compliance with
the section of FAA Order 7210.3 that involves
"Controller-in-Charge" training. As the Court hereby enters
judgment for the Defendant after the conclusion of Phase I, the
Court need not reach the issues of Phase II. The Court held a bench trial from January 13-15, 2004, hearing
the live testimony of three witnesses, and reading designated
portions of deposition transcripts in lieu of live testimony of
six additional witnesses. Having received the evidence, including
the extensive documentary record on file in this case from the
several prior motions for summary judgment, and having evaluated
the credibility of the witnesses at trial, the Court makes the
following findings of fact and conclusions of law pursuant to
A. The Practical Test Requirement
1. Meigs Tower was an FAA facility before its closing on
September 30, 1996. It was re-opened as a contract tower on
February 10, 1997, in what was considered a "cold start" because
the tower had been closed for so long that nobody had current
experience working there.
2. Because the tower had been closed for so long, the FAA
needed to appoint an FAA supervisor to be the Acting Manager of
Meigs, in order to re-open the tower and provide air traffic
control services for the first hours of operation while
certifying the contractor's controllers to work there. After the
contractor's controllers were certified, they would assume
complete control over the Tower's operations. Michelle Behm, the
Air Traffic Manager of Midway Tower and the Manager for the Hub
that included Meigs, selected Doreen Adams for this job.
3. Ms. Behm testified that Ms. Adams was qualified and properly
certified for the job. Ms. Adams was a highly experienced
controller and supervisor, with special expertise in staffing,
training, hiring, and administration. Ms. Adams had held
supervisory positions at several air traffic control towers that were far more complex
than Meigs, such as Midway Tower. Ms. Adams had also served as
manager of Meigs Tower several times before (when it had been
operated as an FAA Tower), and she had written and updated many
of the directives and letters of agreement for Meigs Tower.
4. Ms. Behm properly issued Ms. Adams a facility rating for
Meigs Tower, complying with all applicable requirements including
14 C.F.R. § 65.37 (the "practical test" requirement). Ms. Adams
was an operationally-current first line supervisor at Midway
Tower, qualified to work any position at that complex Tower. Her
competence, currency, and familiarity with air traffic control
procedures and requirements were indisputable. Therefore, Ms.
Behm focused on evaluating Ms. Adams's knowledge and familiarity
with equipment and procedures specific to Meigs Tower.
5. Under § 65.37, Ms. Behm was required to test Ms. Adams on
equipment, weather reporting procedures, Notices to Airmen, the
use of the Airman's Information Manual, operational forms, and
performance of non-control operational duties. At her discretion,
Ms. Behm could also test Ms. Adams on runways, taxiways, terrain
features, traffic patterns, operational agreements, and other
issues specific to Meigs Tower. Ms. Adams could not, of course,
observe Ms. Adams actually control aircraft at Meigs Tower
because the airport and tower were then closed (Ms. Adams'
certification was required in preparation for the re-opening,
which she would perform).
6. Ms. Behm testified about the broad discretion she had in
designing and administering the practical test. The test could be
oral or written, and Ms. Behm could take into account Ms. Adams'
previous experience. Ms. Behm testified, credibly, that she and
Ms. Adams spent hours together going through the training manuals, orders,
Letters of Agreement, and procedures of Meigs. They had many
verbal discussions about the airspace and procedures involved in
re-opening Meigs Tower. They went to the closed Meigs Tower
building together and studied the equipment and its usage. Ms.
Adams reviewed and updated the previous Letters of Agreement,
training manuals, and directives for Meigs, many of which she had
written herself when she was previously Acting Manager of Meigs
Tower and the Quality Assurance Specialist for the Hub.
7. Ms. Behm considered all of Ms. Adams's training, experience,
familiarity with Meigs Tower, and other expertise in determining
that she met the practical test requirement of § 65.37. Once Ms.
Behm was satisfied that Ms. Adams had sufficient knowledge of ...