Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


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,

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 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. 1013.)

  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 51, 178-79.)

  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, 178-79.)

  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 staffing levels:

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 price.
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.)


  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.


© 1992-2004 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.