Patterson & Wilder Construction v. U.S.

• Decision Date: 15 September 2000
• Docket Number: No. 99-15301,99-15301
• Citation: 226 F.3d 1269
• Parties: (11th Cir. 2000) PATTERSON & WILDER CONSTRUCTION CO., INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1269

226 F.3d 1269 (11th Cir. 2000)

PATTERSON & WILDER CONSTRUCTION CO., INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 99-15301.

United States Court of Appeals, Eleventh Circuit.

September 15, 2000.

September 27, 2000.

Appeal from the United States District Court for the Northern District of Alabama. (97-02840-CV-N-S), Edwin L. Nelson, Judge.

Before CARNES, MARCUS and FARRIS^*, Circuit Judges.

MARCUS, Circuit Judge:

In this appeal, we address the scope of the United States's potential liability under the Federal Tort Claims Act, 28 U.S.C. 1346 ("FTCA"), for the alleged misconduct of private parties hired by federal agents to conduct covert law enforcement activities. Plaintiff Patterson & Wilder Construction Co., Inc. ("P&W") appeals the district court's order granting summary judgment in favor of Defendant United States of America ("Government") on the company's FTCA claim, which arises out of the destruction of a P&W-leased aircraft during a covert narcotics operation in Colombia. P&W asserts that the Government is responsible for the alleged misconduct of two private pilots who were hired by the Government to obtain the aircraft and carry out the mission because during the mission those pilots were acting as "employees" of the Government. The district court found that the Government did not supervise and control the pilots' activities during the critical phases of the operation and therefore the pilots could not be deemed employees. Because looking at the mission as a whole there is ample evidence that the Government supervised and controlled the pilots, a reasonable jury could conclude that the pilots were employees, and accordingly we vacate the summary judgment order.

I.

The facts relevant to the single issue presented by this appeal are largely undisputed. P&W is a construction company headquartered in Pelham, Alabama. In 1992, a long-time P&W employee named Billy Latham co-founded Latham Aviation, Inc. to assume ownership of an aircraft formerly owned by him and used by P&W. In 1993, Stuart Boyd, a P&W employee who piloted the aircraft for the company, contacted fellow pilot and former co-worker Jason Reynolds to obtain information about a replacement aircraft. Reynolds located a Merlin Swearingin plane (the "Merlin") for sale and assisted in Latham Aviation's purchase of the plane. Later in 1993, P&W and Latham Aviation executed a lease agreement whereby Latham Aviation leased both the Merlin and its pilot, Boyd, to P&W for seven years.

In November 1994, a United States Customs Service agent named Daniel Dunn contacted Reynolds about working as a pilot to haul drugs from Colombia to the United States as part of a joint Customs-United States Drug Enforcement Administration ("DEA") undercover drug interdiction operation. Reynolds had worked extensively with Customs and other federal and non-federal agencies in similar covert operations since the early 1980's, having assisted Customs in 50-100 cases involving 200 defendants. Among other things, Reynolds worked as an undercover pilot, an aircraft broker, and as a drug buyer. Reynolds testified at deposition that his work for Customs was practically full-time at first, and on subsequent occasions his assignments would sometimes require two or three month commitments and in one instance required him to relocate to Texas for a year. Reynolds also testified that, in connection with his work for Customs, he had given a hundred depositions and appeared in court numerous times. Reynolds (under the assumed name "Jason Robards") executed documents with Customs that identified him as a "confidential source" and set certain guidelines for his conduct, but also indicated that he was not a Customs employee.

Dunn told Reynolds that the job would require Reynolds to locate a suitable aircraft, fly it to Colombia, purchase drugs in a pre-arranged transaction, and return to the United States. After speaking with Dunn, Reynolds contacted Boyd about the availability of the Merlin for the mission. The parties dispute who, if anyone, obtained authorization for using the aircraft; apparently both Reynolds and Boyd thought the other had obtained permission to use the plane. Also apparently disputed is what, if anything, Reynolds told the Government about the ownership or leased status of the aircraft. Customs, for its part, apparently did not make any inquiry into the aircraft or Reynolds's or Boyd's authority to use it.

After receiving Reynolds's call, Boyd contacted an aircraft servicing company in Texas where the Merlin was undergoing a routine inspection, and indicated that Reynolds would shortly be picking up the aircraft. On November 8, 1994, Reynolds, d/b/a Wheels and Wings, Inc., received a cashier's check from Customs in the amount of $10,000 to pay for rental of the Merlin, operational expenses, insurance, and fuel for seven days. Subsequently, Reynolds received an additional $10,000 check to cover expenses. Under the arrangement with Customs and DEA, it was Reynolds's responsibility to locate and provide the aircraft and other equipment and supplies needed for the flight to Colombia.

On November 9, 1994, Reynolds and a Customs pilot traveled in a Customs aircraft to Tyler, Texas, to pick the Merlin up and fly it together to St. Petersburg, Florida, where it was kept overnight at a Customs facility. The next day, November 10, Reynolds flew the Merlin to Ft. Lauderdale, where the plane was towed by the Government to a Customs or DEA hangar where a "Mode-II" military transponder was installed. The transponder communicated via satellite with the Government, air traffic control centers, and AWAX surveillance planes identifying the Merlin as part of a United States Government operation. After the transponder was installed, Reynolds flew the plane back to St. Petersburg, where it was again stored overnight in a Customs hangar.

On November 11, Reynolds and another private pilot expected to participate in the mission met with DEA special agent Bob Quinn. Quinn instructed the pilots on the details of the mission. As Quinn explained, the pilots would fly to Howard Air Force Base in Panama where they would spend the night before flying to Colombia the next day. Upon arriving in Colombia, Reynolds was to land the plane at a particular grassy airstrip positioned in the jungle (to that end, Quinn provided Reynolds with the airstrip's coordinates as well as a radio frequency to use when contacting the Colombian drug dealer who was to meet the plane). At the airstrip, upon meeting the dealer, the pilots were to load the contraband and return to Panama. In the event anything went wrong, the pilots were to fly to Maracaibo, Venezuela, where DEA agents would be standing by and would assist the pilots' safe return to the United States.

After hearing the details of the mission, the co-pilot decided against participating, at which time Reynolds suggested Boyd as a co-pilot since Boyd flew for the company that owned the plane. Quinn approved Reynolds's suggestion to contact Boyd, who agreed to make the trip after being told by Reynolds that he would probably make $100,000.

On November 13, Boyd arrived in Florida where he met with agents Dunn and Quinn. The agents advised Reynolds and Boyd that they were expected to make the trip the next day. According to Reynolds, the agents advised that if they did not go the next day, the deal would be off.

On the morning of November 14, as instructed, Reynolds and Boyd flew the Merlin to Marathon, Florida, where they refueled the plane, and then flew to Howard Air Force Base (an American base) in Panama. There, the aircraft's interior was reconfigured at the direction of the Government, and Reynolds and Boyd met once again with Customs and DEA agents, including an agent under Dunn's supervision named Willie Cancio. Cancio, another DEA agent, Reynolds and Boyd created the next day's flight plan. The plane was refueled, and Reynolds and Boyd spent the night in crew lodgings at the American base.

At 4:00 a.m. on November 15, Reynolds and Boyd departed Panama for Colombia, unaccompanied by federal agents. As the pilots approached the prescribed coordinates for the airstrip, they used the prescribed radio frequency to contact the drug dealer, Armando, but could not reach him. After the plane landed on the airstrip Armando approached and indicated that he did not have the drugs but that they were nearby and that Reynolds and Boyd should fly to a second location. Rather than return to Maracaibo, Reynolds and Boyd joined by Armando flew to the second location, but decided not to land there when they saw Colombian policemen on horseback in the area. Instead, they flew back to the original airstrip where Armando told Reynolds and Boyd to wait with the plane while he went to get the drugs. After Armando left, the Colombian police discovered Reynolds and Boyd and arrested them as well as some of Armando's associates. Armando eventually secured the pilots' release with bribe money.

Meanwhile, in an attempt to confiscate the Merlin, the Colombian police unsuccessfully tried to fly the plane out of the jungle. In so doing, the police crashed the plane shortly after take-off, destroying both props and engines. After Armando obtained Reynolds's and Boyd's release, his men returned to the location where the Merlin had crashed. Armando's men decided to burn the aircraft and bury the wreckage so that it would not alert other Colombian police who might be patrolling from the air. With the Merlin destroyed, and out of contact with federal agents, Reynolds and Boyd had no means to return to the United States. Instead, they stayed with Armando at his house in Colombia for eleven days, at which point Armando purchased commercial airline tickets for the pilots to return to Miami.

On January 8, 1996, Customs and DEA paid Reynolds and Boyd $270,000 for their services in the covert operation. By June 4, 1996,...