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July 15, 2004.

DIANA L. ALINSKY, Individually and as Personal Representative of the Estate of PAUL J. ALINSKY, Deceased, Plaintiff,

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


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 Fed.R.Civ.P. 52(a).


  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 ...

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