United States District Court, N.D. Illinois, Eastern Division
July 15, 2004.
DIANA L. ALINSKY, Individually and as Personal Representative of the Estate of PAUL J. ALINSKY, Deceased, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
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
FINDINGS OF FACT
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 the
items listed in § 65.37, she certified her as passing the test.
8. The Court finds that Ms. Behm acted reasonably and within
her discretion as the Hub Manager in issuing Ms. Adams the
facility rating for Meigs Tower, including compliance with the
"practical test" requirements of § 65.37. Ms. Adams was fully
certified to perform the re-opening of the tower.
B. The Contractor's Staffing at Meigs Tower
9. On April 17, 1997, two months after opening Meigs Tower with
the level of staffing that it had designated in its bid, Midwest
requested additional funding from the FAA so it could hire
another air traffic controller. (Ex. 1011.) This required a
formal modification to Midwest's contract. The Court has already
ruled that the FAA followed its customary procedures in
considering and approving the request. (Order, April 11, 2002.) 10. Midwest made its request for a contract modification to the
FAA's Regional Point of Contact for contract towers in the Great
Lakes Region. (Ex. 1011.) On April 18, 1997, the Regional Office
sent a memorandum to the Federal Contract Tower Program Office,
at FAA headquarters in Washington, D.C., requesting that the
contract be modified to increase staffing at Meigs Tower. (Ex.
11. The Contract Tower Program Office processed this request in
the normal course of business. Willie Card, the Manager of the
Contract Tower Program Branch, testified that the normal range of
time his office takes to analyze a request to increase staffing
is about six to eight weeks. (Card Dep. at 134.)
12. In an emergency situation, Mr. Card's office has been able
to increase staffing in two to three weeks. (Card Dep. at 146.)
With respect to Meigs, however, the contractor never indicated
that it was an emergency situation, so the request was handled in
the normal manner. (Card Dep. at 117.)
13. There is no FAA Order governing staffing levels for
contract towers. Such decisions are within the discretion of the
Contract Tower Program Office, and made through analysis,
comparison, and discussions with the contractor. (Card Dep. at
14. Contract towers are staffed with fewer controllers than FAA
facilities. (Card Dep. at 106-07.) The Contract Tower Program
Office's staffing decisions are based on a number of factors,
such as traffic count, complexity, the contractor's requests, and
what staffing levels work at similar air traffic control towers.
(Card Dep. at 104-07.)
15. The Contract Tower Program Office's review of the Meigs
Tower staffing increase request took about six weeks from April
18, 1997. On June 3, 1997, the FAA asked Midwest for a cost proposal and a revised staffing plan. The FAA
waited for a response from Midwest, which sent the proposal and
staffing plan on June 23, 1997. The FAA officially approved the
request for increased staffing on July 3, 1997, more than two
weeks before the accident of July 19, 1997. (Ex. 1020.) The FAA
gave Midwest "a verbal OK . . . to hire another full-time
controller at Meigs," with funding guaranteed at least until the
end of the month in which the accident occurred. (Ex. 1021.)
16. No order other than FAA Order 7210.54 governs the FAA's
oversight of contract towers. (Card Dep. at 22-23.) Staffing
plans are submitted by contractors, and the FAA and the
contractor agree on a staffing level before the tower is opened.
(Card Dep. at 33, 46-54.) No statute, regulation, or FAA Order
governs staffing levels at contract towers. (Card Dep. at 8,
17. Once the staffing plan is in place, the contractor cannot
go below the agreed-upon staffing level without being in
violation of the contract, but it can always put more controllers
in a tower without a contract modification if the contractor is
willing to assume the cost. (Card Dep. at 64-65.) If the
contractor wants to recover the cost of increased staffing, it
must request a contract modification. (Card Dep. at 64-65.)
18. Midwest's bid for the contract contained a justification of
This schedule incorporates periods of single
coverage. Detailed operational information has been
gathered and analyzed, allowing us to justify and
schedule these periods during less complex traffic
conditions. We have regularly scheduled single
coverage at over forty facilities that encompass the
density and complexity conditions found in the
majority of sites incorporated in this contract.
Therefore, we have conclusively determined from many
years of actual single coverage staffing experience
that single coverage is often times appropriate and
highly cost effective without jeopardizing the safety
or continuity of the operation. If, however, we
determine during the phase-in that a facility's
proposed staffing needs to be increased, we shall increase that
facility's staffing with no increase to the contract
Contract, Ex. 2000 at 354b (emphasis added).
19. Midwest also had assured the FAA in its contract
solicitation that Midwest had a "quick response team" of
experienced controllers who could quickly be deployed as an
effective controller resource. As explained in Midwest's bid for
the contract, "We maintain a quick response team of controller
personnel that have the proven ability to acquire facility
ratings in a minimum amount of time. These personnel are
available for rapid deployment to any of our facility locations
as required. Having a staff available for deployment is one way
we meet cost restraints associated with unforeseen contingencies
in a multi-contract environment." (Contract, Ex. 2000,
Solicitation Response, May 19, 1994, at 9.)
20. Midwest sent a member of its quick response team to Meigs
two weeks before the accident to help with a weekend convention,
so it presumably could have added extra staffing whenever Midwest
deemed it necessary, and as required by the Contract. (Ex. 1021.)
At that time, the FAA was aware that the contract modification
had been approved, that Midwest had been notified of the
approval, and that Midwest was using its quick response team to
supplement the Meigs Tower staffing as necessary (and getting
paid for it). The FAA could and did reasonably assume that the
additional staffing issue had been resolved.
21. The Court finds that the FAA acted reasonably, following
its standard procedures, in considering the non-emergency request
to modify the contract.
22. The Court further finds that the FAA had complete
discretion in this staffing matter. The FAA was considering where
to spend the resources of the country, balancing the demands for additional resources and controllers against the
limitations of a finite budget. Whether a control tower
(FAA-operated or contractor-operated) ought to be staffed by one
or two controllers is a classic exercise of executive discretion.
C. Order 7210.3, Controller-in-Charge Training Requirements
23. In its Orders of September 7, 2001, and April 11, 2002, the
Court questioned whether the FAA's alleged delay in approving the
contract modification to increase staffing at Meigs Tower caused
the contractor to violate FAA Order 7210.3. After considering
this issue in further detail and with the assistance of live and
deposition testimony, the Court finds that it did not. The FAA
never prevented Midwest from offering its controllers the
training discussed in Order 7210.3.
24. FAA Order 7210.3, "Facility Operation and Administration,"
is one of the orders that applies, "in whole or in part," to
Midwest's performance under the Contract. (Ex. 2000, Contract,
Appendix 1.) Order 7210.3, in relevant part, addresses the
contractor's training of its own employees. Section 4, "Watch
Coverage," specifies a training course that must be taught to a
controller prior to being designated as a "Controller-in-Charge,"
who would then be capable of standing watch unsupervised. (Ex.
2001, Order 7210.3M, ¶ 2-4-10.)
25. Several witnesses testified that Midwest, not the FAA, was
responsible for training its controllers, as required by the
Contract. (E.g., Dixon Dep. at 63; Calvin Dep. at 10-21; Ex.
2000, Contract ¶ C.4.7.) The Court has previously held that:
"[A]fter an initial start-up period, the FAA gave Midwest
complete dominion over training and quality assurance
initiatives." (Order, Sept. 7, 2001, at 3.) Therefore, Midwest
was responsible for providing the Controller-in-Charge course, if
necessary. 26. John Calvin was the Director of Operations at Midwest Air
Traffic Control Services during the relevant time periods. Mr.
Calvin testified that he was the one who hired and trained the
controllers who worked at Meigs Tower. (Calvin Dep. at 10.) He
testified that Meigs Tower was routinely operated with just one
controller. (Calvin Dep. at 24.) This was because Meigs Tower was
a simple operation, with only one runway and one taxiway. (Calvin
Dep. at 28.)
27. When he made the request for a contract modification to
increase staffing, he made it as a routine, non-emergency
request. (Calvin Dep. at 31.) He made the request because he had
noticed an increase in traffic at Meigs. (Calvin Dep. at 31.)
28. The pendency of a request for increased staffing did not
affect Midwest's training program. (Calvin Dep. at 36.) At that
time, Midwest did not offer its controllers the course in
"Controller-in-Charge," as described in ¶ 2-4-10 of FAA Order
7210.3. Mr. Calvin, would have taught such a course to Midwest's
controllers, but he did not think that this course was required
for contract tower controllers who would not be supervising
others. (Calvin Dep. at 16-21.) He testified that the controllers
at Meigs Tower were adequately trained to stand watch alone, and
that the Controller-in-Charge course offered nothing of substance
that was not already being taught to Midwest's controllers in
other courses. (Calvin Dep. at 18-20.)
29. Mr. Calvin testified that even if an additional controller
had been hired well before the accident, nothing would have
changed at the time of the accident with respect to training or
the number of controllers working at that time. Midwest still
would have staffed the tower with one person after 6:00 p.m., and
that person would not have taken the Controller-in-Charge course
because Midwest did not begin offering the course until late
1997. (Calvin Dep. at 29, 36.) 30. When asked why Midwest began offering the course, Mr.
Calvin testified: "I can't recall the exact dates, but it was
later in '97. We'd seen instances where evaluators, FAA
evaluators when they'd come through to do the facility evaluation
were marking that as an item on the checklist that the course
55024 was not issued. We had put in calls for clarification, but
in the meantime I reviewed the course, liked the information in
the course. It was pretty much a nice, neat package of everything
we'd trained on, but it tied it into one nice, neat bundle. So we
said . . . let's go ahead and issue it." (Calvin Dep. at 29-30.)
31. The FAA never prevented Midwest from offering a
Controller-in-Charge course, as defined in FAA Order 7210.3, or
certifying its controllers as Controller-in-Charge qualified, and
thus never prevented Midwest from coming into compliance with the
Order. The pending request to increase staffing at Meigs Tower
had nothing to do with Midwest's decision that the
Controller-in-Charge course was not required at contract towers.
32. Accordingly, the Court finds that the FAA never prevented
Midwest from training its controllers, as required by the
Contract. (Calvin Dep. at 12-21, 77-80.)
CONCLUSIONS OF LAW
1. The Court has jurisdiction over the parties to the case.
2. The United States committed no tort against the Plaintiffs
under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1).
3. The United States has a valid defense that its alleged
negligent oversight falls within the discretionary function
exception to the FTCA, 28 U.S.C. § 2680(a). 4. The United States is entitled to judgment in this matter.
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