502 F.3d 1331 (11th Cir. 2007), 06-15303, McMahon v. Presidential Airways, Inc.

Docket Nº:06-15303.
Citation:502 F.3d 1331
Party Name:Jeanette McMAHON, as Personal Representative of the Estate of Michael McMahon, Tracy Grogan, as Personal Representative of the Estate of Travis Grogan, Sarah Miller, as Personal Representative of the Estate of Harley Miller, Plaintiffs-Appellees, v. PRESIDENTIAL AIRWAYS, INC., a Florida corporation, Aviation Worldwide Services, LLC, a Florida limit
Case Date:October 05, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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502 F.3d 1331 (11th Cir. 2007)

Jeanette McMAHON, as Personal Representative of the Estate of Michael McMahon, Tracy Grogan, as Personal Representative of the Estate of Travis Grogan, Sarah Miller, as Personal Representative of the Estate of Harley Miller, Plaintiffs-Appellees,


PRESIDENTIAL AIRWAYS, INC., a Florida corporation, Aviation Worldwide Services, LLC, a Florida limited liability company, STI Aviation, Inc., a Florida corporation, Air Quest, Inc., a Florida corporation, Defendants-Appellants,

Blackwater Lodge & Training Center, Inc., a foreign corporation, Defendant.

No. 06-15303.

United States Court of Appeals, Eleventh Circuit.

Oct. 5, 2007

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M. Miller Baker, Michael Peter Socarras, McDermott, Will & Emery, LLP, Washington, DC, for Defendants-Appellants.

Rebecca Bowen Creed, Tracy S. Carlin, Mills & Creed, P.A., Robert F. Spohrer, Spohrer, Wilner, Maxwell & Matthews, P.A., Jacksonville, FL, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

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Before ANDERSON and MARCUS, Circuit Judges, and COX, Senior Circuit Judge.

ANDERSON, Circuit Judge.

On November 27, 2004, three soldiers in the United States Army serving in Afghanistan--Lieutenant Colonel Michael McMahon, Chief Warrant Officer Travis Grogan, and Specialist Harley Miller--died when the airplane that was transporting them crashed into the side of a mountain. The plane was owned and operated by defendant-appellant Presidential Airways, Inc. ("Presidential").1 The soldiers' survivors (collectively, "McMahon") filed a wrongful death action in state court against Presidential and appellants Worldwide Services, LLC; STI Aviation, Inc.; and Air Quest, Inc. (also subsidiaries of Presidential's parent company, all hereinafter referred to collectively as "Presidential"). 2 After removing the case to the federal district court for the Middle District of Florida, Presidential moved to dismiss, arguing that the suit is barred by the principles of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the political question doctrine, and the combatant activities exception to the Federal Tort Claims Act (FTCA). The district court denied the motion. Presidential now appeals.

McMahon's complaint alleges that Presidential entered into a contract with the Department of Defense ("DOD") to provide air transportation and other support services in aid of the military mission in Afghanistan. A Statement of Work ("SOW") governed the relationship between Presidential and the U.S. military. Presidential agreed to furnish "all fixed-wing aircraft, personnel, equipment, tools, material, maintenance, and supervision necessary to perform Short Take-Off and Landing (STOL) passenger, cargo, or passenger and cargo air transportation services" between various locations in Afghanistan, Uzbekistan, and Pakistan. DOD directed what missions would be flown, when they would be flown, and what passengers and cargo would be carried.

The SOW provided that Presidential would appoint a project manager to oversee its performance of the contract. Presidential was required to "develop and implement a commercial quality control plan to ensure safe and reliable air transportation in accordance with FAR 135 and 32 CFR 861." FAR 135 is Part 135 of the civilian Federal Air Regulations, which governs the "commuter or on-demand operations" of commercial operators. 14 C.F.R. § 135.1. 32 C.F.R. § 861 contains the DOD's own standards for commercial carriers. This regulation required Presidential to "supervise crew selection," "ensure the risk associated with all flight operations is reduced to the lowest acceptable level," "ensure that applicants [for flight crew] are carefully screened," and "ensure[] the proper pairing of aircrews on all flights," among other duties. 32 C.F.R. § 861.4.

The SOW also contained more specific restrictions on Presidential's operations. It dictated how much rest crews had to receive between flights; described specifications for the planes Presidential was to use; and set out minimum and maximum limits on passengers and cargo per mission. Presidential had the ultimate authority to "refuse to fly any mission for safety reasons" (although each such mission had to be rescheduled).

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McMahon alleges that on November 27, 2004, Presidential was scheduled to transport the three soldiers from Bagram Airfield in northern Afghanistan to Farah, in western Afghanistan. The aircraft chosen for the flight was a CASA 212-CC, twin-engine, turbroprop, fixed-wing aircraft registered with the FAA. McMahon claims that the flight crew requested a southern departure route from Bagram, but then in fact departed in the opposite direction, on a northerly route. McMahon alleges that the crew then turned west to go to Farah, entered a canyon of rapidly rising terrain, and (while attempting to execute a 180-degree turn) crashed into the face of a 16,580-foot mountain. None aboard survived.

The soldiers' survivors filed suit against Presidential in state court, seeking damages under Florida's wrongful death statute. Presidential removed the case to the federal district court for the Middle District of Florida under the federal officer removal statute. 28 U.S.C. § 1442(a)(1). The district court denied McMahon's motion to remand the case to state court. McMahon then filed an amended complaint in the district court alleging that Presidential negligently hired and trained the flight crew, negligently assigned the flight crew, negligently planned the route, negligently equipped the aircraft, and otherwise negligently operated the aircraft.3

Presidential moved to dismiss the case under Rules 12(b)(1) and 12(b)(6). First, Presidential argued that it was entitled to immunity under the principles of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). That case bars soldiers from suing the United States for injuries they incur incident to their military service. Presidential claimed that it was entitled to the government's Feres immunity under a theory of derivative sovereign immunity. Presidential also argued that the political question doctrine barred the suit. Finally, Presidential argued that the case should be dismissed under Rule 12(b)(6) because McMahon's claims were preempted by the FTCA's combatant activities exception, 28 U.S.C. § 2680(j).

In response, McMahon sought to convert the Rule 12(b)(6) motion to one for summary judgment by attaching affidavits and exhibits originally introduced in support of her motion for remand. The district court declined to convert the motion and, on Presidential's motion, struck the extraneous evidence.

The district court then denied Presidential's motion to dismiss.4 The court rejected Presidential's claim to Feres immunity because it concluded that Feres was only available in suits against the federal government or its employees. The court concluded that McMahon's suit did not present a nonjusticiable political question because it did not yet appear that her tort claims against a private contractor would require the court to examine the judgments or strategy of the United States

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military. The court also refused to recognize a preemption defense based on the combatant activities exception, finding that preemption was not warranted for suits arising out of services contracts.5 Presidential has brought this interlocutory appeal of the district court's denial of its motion to dismiss.

We organize this opinion as follows:

I. Derivative Feres immunity

A. Interlocutory jurisdiction

B. Derivative Feres immunity

1. Feres doctrine

2. Derivative sovereign immunity

3. Application of Feres rationales to private contractor agents

4. Some form of immunity may be appropriate for private contractor agents

a. Incident-to-service test

b. Feres as a basis for private contractor immunity where sensitive military judgments may be involved

II. Political question doctrine

A. Interlocutory jurisdiction

B. Political question doctrine

1. Will the case involve a decision that has been constitutionally committed to another branch?

2. Does the suit involve a lack of judicially discoverable and manageable standards?

3. Other Baker factors

III. Preemption based on the combatant activities exception.

IV. Conclusion

We address each issue in turn.

I. Derivative Feres immunity

A. Interlocutory jurisdiction

We first consider our jurisdiction over this interlocutory appeal. Under 28 U.S.C. § 1291, we have "jurisdiction of appeals from all final decisions of the district courts ..., except where a direct review may be had in the Supreme Court." Normally, an order by the district court is not considered "final" and appealable unless it "ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment." Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 1995, 128 L.Ed.2d 842 (1994) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). The district court's pretrial denial of derivative Feres immunity does not qualify as a final judgment under the normal rule.

Presidential instead argues that its appeal is proper under the collateral order doctrine. The collateral order doctrine--a "practical construction" of the final decision rule--permits appeals from "a small category of decisions that, although they do not end the litigation, must nonetheless be considered 'final.' " Swint v. Chambers County Comm'n, 514 U.S....

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