Alinsky v. U.S.
| Citation | 156 F.Supp.2d 908 |
| Decision Date | 02 August 2001 |
| Docket Number | No. 99 C 2447.,No. 98 C 6189.,No. 99 C 1738.,No. 99 C 2883.,98 C 6189.,99 C 2883.,99 C 1738.,99 C 2447. |
| Parties | Diana L. ALINSKY, Durenda Walker, John J. Canty and Nevie B. Canty, Patricia Van Pelt Watkins, Jerry Phillips, Carla Vertz, Richard Polka, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Kenneth C. Miller, Kenneth C. Miller, Ltd., Chicago, IL, for Plaintiffs.
Eileen M. Marutzky, United States Attorney's Office, Chicago, IL, for Defendant.
On July 19, 1997, two aircraft collided in mid-air approximately three miles south of Chicago's Merrill C. Meigs Field, killing all seven occupants. At the time of the crash, both airplanes were in communication with the Meigs Air Traffic Control Tower which was operated by a private company, Midwest Air Traffic Control Services, Inc. ("Midwest"), under contract with the Federal Aviation Administration ("FAA"). Meigs Tower, which was previously staffed by FAA air traffic controllers, had been re-opened under private management in February 1997. Despite numerous indications that Midwest was dangerously short-staffed, a fact that was made known to the FAA months before the accident, only one air traffic controller, Renee Toone, was on duty at the time of the crash. She had been working traffic for four hours without a break, and no supervisor was present. Plaintiffs assert that Ms. Toone was an inexperienced air traffic controller who received inadequate training. The parties agree that she failed to alert the two aircraft of their relative proximity to each other, a failure which caused the collision.
Plaintiffs, administrators of the estates of the seven deceased passengers, sued the United States. In their original Complaint they sought to hold the United States vicariously liable for the negligence of Midwest employees, a theory which they now appear to have abandoned, but which I will nonetheless address in the course of this opinion at the government's request. Plaintiffs' second theory is that the United States is liable for its own employees' negligent acts in administering Midwest's contract. Plaintiffs seek damages under the Federal Tort Claims Act ("FTCA") 28 U.S.C. § 1346(b)(1).
The United States asks me to dismiss the case or, in the alternative, to grant it summary judgment, because it is immune from suit. Since the government's motion necessarily raises facts outside of the allegations in the complaint, I treat it as a motion for summary judgment.
The first issue is by far the easier one to resolve. As a matter of law, the United States may not be held liable for the negligent acts of Midwest, an independent contractor.
The FTCA provides only a limited waiver of the sovereign immunity of the federal government. It grants federal courts jurisdiction over damages claims against the United States
"for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b).
Under the FTCA, the United States has waived its immunity for the negligence of "employees of the government." An employee of the government includes "employees of any federal agency." See 28 U.S.C. § 2671. The term "federal agency" expressly excludes "any contractor with the United States." Id.
To determine whether an entity is a contractor, I must consider whether the federal government exercises day-today supervisory control over the entity and its employees. See United States v. Orleans, 425 U.S. 807, 815, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). Relevant considerations are (1) whether the entity is an independent corporation; (2) whether the government has the right to hire and fire employees; and (3) whether the government is involved in the entity's finances. See Peoples Gas Light & Coke Co. v. United States, 1990 WL 129359 *4 (N.D.Ill. 1990).
Willie Card's affidavit (which is essentially unrebutted by plaintiffs) coupled with plaintiffs' own characterization of Midwest's contractual relationship with the FAA clearly establishes that the FAA does not control the day-to-day operation of Meigs Tower.1 Midwest is an independent corporation headquartered in Kansas. It decides when to hire and fire employees. It sets its controllers' salaries and decides their benefits. The FAA has no control over Midwest's finances. Moreover, after an initial start-up period, the FAA gave Midwest complete dominion over training and quality assurance initiatives. Plaintiffs point out that under Midwest's contract the FAA retained power to designate hours of operation, set the qualifications of Midwest's workers, choose the type of equipment used, and fire any of its employees. The fact that the FAA had a certain amount of oversight over Midwest does nothing to dispute the government's assertion that day-to-day management of the Meigs Field Air Tower rested entirely with Midwest.
Midwest is quite clearly a contractor within the meaning of 28 U.S.C. § 2671. As such, the negligence of its employees is no basis upon which to hold the United States vicariously liable.2
The next question before me is one of first impression. Can the United States be held liable for the negligent administration of a contract with a private air traffic controller? Plaintiffs allege that the FAA approved a privatization plan according to which too few air traffic controllers worked at Meigs Tower, failed to ensure that Midwest's staff were properly trained, and disregarded numerous indications that the staff shortage at Meigs Tower posed an imminent threat to the safety of those who used the airport. These actions, plaintiffs say, were the proximate cause of the fatalities in this case.
Some background facts are in order. In its contract with Midwest, the FAA approved a staff of three controllers and one supervisor to work traffic at Meigs Towerthree fewer controllers than the FAA used when it operated the tower. It quickly became clear to Midwest employees that its staffing levels were insufficient. Its contract required it to seek approval from the FAA for additional personnel, and it did so on April 18, 1997. In its letter to the FAA, Midwest sought increased staffing "as soon as possible," explaining that actual traffic counts were 21% more than predicted counts, and that it anticipated a heavy volume of aircraft during the coming summer months.3 Approval for an additional controller was not given until some three months after Midwest's urgent request. In the meantime, the FAA hired one of Midwest's air traffic controllers away from it, reducing staffing levels at Midwest to two controllers and one manager to operate a tower that was open seven days per week from 6 a.m. until 10 p.m.
There were other indications of trouble ahead. On June 17, 1997, an FAA air traffic controller from the Chicago Terminal Radar Approach Control in Elgin, Illinois ("Elgin TRACON") filed an Unsatisfactory Condition Report (UCR) in which he alerted the FAA to his concern that under-staffing at Meigs would "lead to an accident or midair." Contrary to established procedure, the TRACON facility manager returned the report to the controller who wrote it, with a note stating that "the UCR process is not the correct vehicle in which to pursue this concern." Then on July 3, 1997, two weeks before the collision which caused the seven fatalities in this case, the Chicago Tribune published a feature article entitled "Meigs Traffic Boom Brings Safety Fears." Still, no additional controller was approved until July 11, 1997.4 No new controller had been hired at the time of the collision.
The United States does not deny plaintiffs' factual allegations, but rather argues that any alleged negligent oversight falls within the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), requiring dismissal of the claim. An exception to the waiver of immunity contained in the FTCA is that no liability shall lie for claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Id. Where this exception applies, a federal court must dismiss the case for lack of subject matter jurisdiction.
Whether the discretionary function exception bars suit against the United States depends upon two factors. See Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); Calderon v. United States, 123 F.3d 947, 949 (7th Cir.1997). The first is whether government employees violated a specific mandatory statute, regulation or policy. For if a directive with the force of law specifically prescribes a course of action for an employee to follow and the employee does not follow the prescribed course, the exception does not apply. Calderon, 123 F.3d at 949. The second is whether the conduct involved was the type of conduct that Congress intended to shield from liability. The exception protects only governmental actions based upon considerations of public policy.
The United States bears the burden of showing that the discretionary function exception applies. See Gatx/Airlog Co. v. United States, 234 F.3d 1089 (9th Cir.2000). I find that the government has not met its burden in this case. The discretionary function exception applies to some, but not all, of the conduct alleged by plaintiffs.
Plaintiffs allege that the FAA violated its own regulations when it failed to ensure that Meigs Tower was adequately staffed and that Midwest's controllers were properly qualified. Plaintiffs claim...
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...to make personnel decisions for the entity and whether the government controls the finances of the entity. Alinsky v. United States , 156 F.Supp.2d 908, 912 (N.D. Ill. 2001) (citing Peoples Gas Light & Coke Co. v. United States , 1990 WL 129359, at *4 (N.D. Ill. Aug. 27, 1990) ). Here, the ......