REDMAN BY AND THROUGH REDMAN v. US, C88-1015-K.
| Citation | 710 F. Supp. 765 |
| Decision Date | 12 April 1989 |
| Docket Number | No. C88-1015-K.,C88-1015-K. |
| Parties | Randall Wayne REDMAN, By and Through his next friend and father, Ronald REDMAN, and James Stanley Ewing and Scott Tyler Ewing, by and through their next friend, Lewis Johnson as personal representative for the Estate of Judith Ewing, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Wyoming |
John R. Hursh, Riverton, Wyo., Michael D. Zwickl, and Les Bowron, Casper, Wyo., for plaintiffs.
Wendy L. Rome, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant.
ORDER GRANTING DEFENDANT UNITED STATES OF AMERICA'S MOTION TO DISMISS FOR WANT OF JURISDICTION (WITH FINDINGS)
The above-entitled matter having come on regularly for hearing before the Court on defendant's motion for dismissal or, in the alternative, for summary judgment; plaintiffs appearing by and through their attorneys, John R. Hursh, Michael D. Zwickl, and Les Bowron; defendant appearing by and through its attorneys, Wendy L. Rome, Civil Division, United States Department of Justice, and Richard A. Stacy, United States Attorney for the District of Wyoming; and the Court having heard the arguments of counsel and having fully and carefully reviewed and considered the motion and brief filed therewith and all matters pertinent thereto, and being fully advised in the premises, FINDS:
On September 2, 1985, a twin-engine Piper Seneca II aircraft, enroute from Minden, Nevada to Casper, Wyoming, spiraled downward after encountering severe weather conditions and crashed near Ogden, Utah, killing all on board—Dr. Charles W. Ewing (the pilot), his wife Judith, and Dr. and Mrs. John P. Kanaly. Surviving Ewing family members, along with the duly appointed personal representative of the estate of Judith Ewing bring this wrongful death action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (1982), seeking damages totaling $1,200,000 for alleged negligence on the part of the Federal Aviation Administration (FAA) in flight testing and removal of Dr. Ewing's visual flight rules (VFR) limitation and for failing to initiate an investigation or alternative enforcement proceeding upon claimed knowledge of an FAA flight inspector of Ewing's incompetence at multiengine aircraft piloting under instrument conditions. The Court retains jurisdiction to decide the jurisdictional issue under 28 U.S.C. § 1346(b). See Land v. Dollar, 330 U.S. 731, 739, 67 S.Ct. 1009, 1013, 91 L.Ed. 1209 (1947).
With the threshold jurisdictional question still at issue1, the United States' alternative basis for dismissal comes under Fed.R. Civ.P. 12(b)(6). The fact that materials outside the pleadings were submitted and considered does not serve to convert the motion to dismiss for lack of subject matter jurisdiction into a motion for summary judgment. Fed.R.Civ.P. 12(b). See also Nichols v. United States, 796 F.2d 361, 366 (10th Cir.1986) ().2
The following facts form the backdrop for this unfortunate tragedy. Dr. Ewing began training for single-engine certification on July 30, 1983 at a Casper air school where Thomas Rickert was the chief flight instructor. He received his certification on October 26, 1983. See Rickert Dep. at 7-9. At this time he owned, either individually or through his medical practice, a single-engine Cessna 182. In July 1984, Ewing, desirous of obtaining an instrument rating for the Cessna, took his first instrument flight test with Rickert. As Rickert described it, Ewing's performance was miserable: Id. at 18.3 Rickert filed a "pink slip" notice of disapproval with the FAA in Oklahoma City, Oklahoma. See id. at 19-21. Ewing retrained in his areas of deficiency with Jim Gotsch, who had previously recommended Ewing for an instrument rating, and on August 1, 1984, Gotsch recommended him for a second instrument flight with Rickert. This time, following 1.1 hours in the air, he passed and received a rating for single-engine instrument flight conditions. Id. at 25.
The next day, August 2, 1984, Ewing had his first multi-engine flight with Rickert followed by another the day after.4 Id. at 34, 35. These were not formal multi-engine flight checks since Ewing had not received the recommendation required before such checks may be undertaken. Apparently, as Rickert recounts, Gotsch had gotten upset with Ewing's attitude and would not recommend him for a multi-engine flight check. Id. at 12. Rickert refused to fly with Ewing unless he secured a recommendation. To that end, Rickert asked another instructor, Mike Kobos, to fly with Ewing. After 6/10 of an hour, Kobos returned to Rickert and, in Ewing's presence, labeled Ewing a "basket case" he never wanted to fly with again. Id. at 13. This occurred around September 28, 1984, which incidentally was the last day that Gotsch gave Ewing dual instruction. Id. at 16. Ewing was visibly upset, retorting that he would find someone who would approve him. Id. at 14.
Meanwhile, policy changes regarding certification of pilots for instrument conditions in multi-engine aircraft were underway at the FAA. On August 27, 1984, a memorandum was sent from the FAA's Washington, D.C. headquarters to all regional offices, outlining a new policy which would become effective October 1, 1984. Under this new policy, all new applicants for a multi-engine rating would be required to demonstrate competency in piloting a multi-engine aircraft solely by reference to instruments regardless of whether they held an instrument rating for a single-engine plane. Attachment 2 to Govt's Motion Exh. 6. A letter apprising pilot examiners was dispatched September 28, 1984. Attachment 4 to Govt's Motion Exh. 6. A few days later, on October 3, 1984, a letter expressly superseding the September letter was sent to all pilot examiners with the additional proviso that any applicant who applies for a multi-engine flight test prior to December 1, 1984 would be exempt from the new instrument requirements provided he had logbook substantiation that multi-engine training began prior to October 1, 1984. Attachment 6 to Govt's Motion Exh. 6. Thus, the FAA instituted a two-month grace period whereby pilots already holding an instrument rating for a single-engine aircraft could ask for and receive a multi-engine instrument rating without additional examination.
On September 29, 1984, Ewing contacted Paul Hinman, the accident prevention specialist charged with, among other things, maintaining the competency of pilots operating within the State of Wyoming and complained that the Casper instructors were trying to "milk him" for all they could before giving him certification.5 Rickert Dep. at 38, 45, 47. Hinman had met Ewing at a pilot safety meeting the summer Ewing purchased the Piper. Hinman Dep. at 19. At this time Ewing was told his options were to either return to Rickert or go see Les Larsen, a flight examiner in Lander, Wyoming. Rickert Dep. at 44.
After contacting Larsen, Ewing flew his Piper from Casper to Lander without a multi-engine rating. Id. at 50. See also Larsen Dep. at 18, 19. Ewing never logged this flight time in his logbook. Rickert Dep. at 106. Rickert stated he did not know where Ewing was going and never reported this violation to the FAA. Id. at 42. When he later determined Ewing's destination, Rickert telephoned Larsen, alerting him that Ewing was a "special case" that required "extremely difficult" testing, apparently to avoid Ewing's somewhat deceptive practices when it came to competency evaluations. Id. at 49, 54. Cf. Larsen Dep. at 26-29 ().
When Ewing arrived in Lander, Larsen informed him of the need to obtain a recommendation before Larsen would fly with him. Larsen Dep. at 20. He sent Ewing to Larry Hastings, a flight instructor in Lander. Id. Ewing did not fly well with Hastings, who told him he would need considerably more training before Hastings would sign a recommendation. Hastings Dep. at 11. As Larsen described it, Hastings came back "about tearing his hair out." Larsen Dep. at 21. Again Ewing was upset but hesitantly returned for more training and, following a two-hour flight with Hastings on October 1, 1984, Hastings signed the recommendation. Hastings Dep. at 12, 14. See also Rickert Dep. at 48. Before October 1, 1984, Ewing's logbook reflects 2.8 hours of instruction with Hastings. Hastings Dep. at 14.
As soon as Ewing secured the recommendation, Larsen took him for a multi-engine flight check which Ewing performed satisfactorily under VFR conditions. Larsen Dep. at 24. Larsen told him he would next have to demonstrate his instrument flight rules (IFR) abilities. Initially Ewing refused but, after some straightening out by Larsen, later acquiesced. See id. at 24-25. From the start the instrument ride was a fiasco. At first Ewing stated he had a hood; later he said he did not. Id. at 25, 26. Then Larsen, with over forty years experience as a commercial pilot and thirty years experience as a flight examiner, saw Ewing cheating and deceptively looking outside instead of relying on instruments. Id. at 27. The following excerpt from Larsen's sometimes colorful deposition testimony is telling:
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