TORT LAW - SECOND CIRCUIT DENIES EXTENDING COMBATANT ACTIVITIES EXCEPTION TO MILITARY CONTRACTOR AIR TRAFFIC CONTROLLERS - BADILLA V. MIDWEST AIR TRAFFIC CONTROL SERV., 8 F.4TH 105 (2D CIR. 2021).

• Author: Cataldo, Joseph

The Federal Tort Claims Act (FTCA) permits private parties to bring tort claims for injuries, death, and property damage "caused by negligent or wrongful act[s] or omission[s] of any employee of the Government while acting within the scope of his office or employment." (1) The FTCA, however, has various exceptions, such as the combatant activities exception, that shield U.S. government employees and military members from tort liability by granting them sovereign immunity if certain circumstances are satisfied. (2) In Badilla v. Midwest Air Traffic Control Services, (3) the Second Circuit Court of Appeals considered whether: (1) Appellants' tort claims against Appellee were preempted by the FTCA's combatant activities exception; and (2) Appellee had a duty of care to ensure the safety of a crashed flight at Kabul Afghanistan International Airport (KAIA) and proximately caused the accident. (4) The Court held that: (1) Appellants' tort claims against Appellee were not preempted by the combatant activities exception because the military did not authorize or direct Appellee's allegedly negligent actions that caused the plane crash; and (2) common law imposed a duty of care to an air traffic controller for a plane flying according to visual flight rules (VFR). (5) In October, 2010, Midwest Air Traffic Control Service, Inc. (Midwest or Appellee) operated at KAIA as a subcontractor for the U.S. military, providing air traffic control services for KAIA at night. (6) Midwest air traffic controllers at KAIA directly report to U.S. Air Force members, who serve as the senior air traffic control officer at KAIA's control towers. (7) Absent direct instruction from U.S. military officers, however, Midwest air traffic controllers should adhere to KAIA's local procedures when dealing with planes flying in KAIA-controlled airspace. (8) Planes arriving at KAIA fly according to either VFR or instrument flight rules (IFR). (9) VFR dictates that pilots "are responsible for their aircraft's terrain and obstacle avoidance," compared to IFR which "requires the pilot to rely on air traffic control for obstacle avoidance." (10) The decision to fly according to VFR or IFR ultimately lies with each pilot, yet KAIA's air traffic control favors "pilots to fly VFR to ease its burden of handling traffic" and because VFR flights take less time to land than IFR flights. (11)

On October 12, 2020, Transafrik International Flight 662 (Flight 662), a cargo aircraft, left the U.S. Bagram Air Base after sunset to fly roughly thirty miles to KAIA to return to Kabul. (12) The flight from U.S. Bagram Air Base to KAIA is fairly straightforward, lasting from ten to thirty minutes, but planes do have to pass through the Hindu Kush mountain range where there are no lights on the mountains and "the valley floor [is] pitch black." (13) Roughly eight minutes into the journey, Flight 662 made initial contact with Midwest employee Darrell Smith, who was operating KAIA's control tower, and Smith cleared Flight 662 to land. (14) Less than a minute later, Ariana Afghan Airlines Flight 2748 (Ariana 2748), a civilian IFR flight, also contacted the control tower, and Smith decided to "switch the order in which the planes would land" to prevent the possibility of the planes colliding. (15) Smith then cancelled Flight 662's landing clearance, instructing the pilot to extend its downwind leg until Smith told him to "turn the aircraft to its 'base leg,'" and prepare to land; soon after this communication, Flight 662 crashed into a nearby mountain killing all of its passengers. (16)

On October 2, 2012, the estate administrators for six of the deceased members of Flight 662 (Appellants) filed negligence claims in New York state court against Midwest for its role in the plane crash. (17) After Midwest removed the case to federal court, the federal court denied Appellants' motion to remand the case back to state court because the court determined that federal jurisdiction applied based on a federal officer supervising the Midwest employees working at KAIA. (18) After the end of discovery, the district court granted Midwest's motion for summary judgment on account of: (1) the FTCA's combatant activities exception preempted the state tort claims; and (2) the fact that "Midwest neither owed a duty of care to Flight 662 nor was a proximate cause of the crash." (19) Upon review of Appellants' appeal, the Second Circuit vacated the summary judgment decision and concluded that: (1) Appellants' negligence claims against Midwest were not preempted by the combatant activities exception because the military did not authorize or direct Smith's allegedly negligent actions that caused the plane crash; and (2) common law imposed a duty of care on Smith to ensure the safe arrival of a VFR flight such as Flight 662. (20)

The FTCA allows private parties to break through the U.S. Government's sovereign immunity doctrine and sue U.S. government actors for damages based on negligent or wrongful conduct that caused personal injury, death, or property damage. (21)

Yet, the various exceptions to the FTCA, especially the combatant activities and discretionary function exceptions, provide legal avenues for federal employees to be shielded from liability despite their allegedly negligent or wrongful conduct. (22) The FTCA, however, limits the scope of who is considered an "[e]mployee of the government" because it explicitly excludes military contractors from sovereign immunity protections. (23) Despite this interpretation of the FTCA, the U.S. Supreme Court's decision in Boyle v. United Technologies Corp. extended the FTCA's discretionary function exception to apply to contractors with the U.S. military to protect them from liability in product liability lawsuits. (24) As a result of the Boyle decision, military contractors can now invoke the FTCA's discretionary function exception to preempt product liability claims against them where the "state-imposed duty of care... [was] precisely contrary to the duty imposed by the Government." (25)

Several other U.S. Circuit Courts of Appeals, such as the Ninth and D.C. Circuits, have extended the application of the military contractor defense in Boyle to also protect contractors from liability under the FTCA's combatant activities exception as long as the contractor is: "[1] integrated into combatant activities over which [2] the military retains command authority." (26) Additionally, the Third and Fourth Circuits have both adopted this extension of the FTCA's combatant activities exception to protect military contractors, but rejected the relevant federal interests at stake. (27) The Second Circuit, however, has consistently declined to apply Boyle's military contractor defense to the FTCA's combatant activities exception. (28)

The Second Circuit applies New York common law when adjudicating negligence claims, such as plane crashes, filed in New York federal courts. (29) According to New York common law, a plaintiff establishes a prima facie case of negligence by demonstrating that: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached this duty; and (3) the plaintiff suffered injury as a proximate result of that breach. (30) The Second Circuit and New York state courts have not yet determined the proper duty of care for air traffic controllers to pilots operating under VFR, but other federal circuit courts have concluded that air traffic controllers and pilots are concurrently responsible for ensuring the safety of planes and their passengers. (31) Specifically, air traffic controllers have a duty to issue safety warnings to pilots operating under VFR, especially when air traffic controllers are "able to gather more information or make more accurate observations than the pilot... [and] when the controller[s] [have] conveyed dangerously inaccurate or misleading information to the pilot." (32) Numerous federal circuits have therefore concluded that air traffic controllers have a duty of reasonable care when guiding VFR flights and to not direct these planes into danger that the particular controller either knows about or should know about. (33)

In Badilla v. Midwest Air Traffic Control Services, the Second Circuit Court of Appeals examined whether the FTCA's combatant activities exception preempted Appellant's negligence claims against Midwest. (34) The Second Circuit held that the combatant activities exception did not apply to Smith's conduct as an air traffic controller because the U.S. military did not authorize or direct Smith's allegedly negligent actions that caused the plane crash. (35) The Second Circuit declined to extend the Boyle defense to the combatant activities exception reasoning that "[s]uch an extension would protect military contractors from state-law claims premised on conduct not mandated, authorized, or even considered by the federal Government." (36) The Court consequently did not follow the direction of other federal circuit courts that extended the Boyle defense to apply to the combatant activities exception, but instead reaffirmed previous Second Circuit decisions that "limited contractor liability only where the government mandated the action that violated state law." (37) By leveraging this test, the Court reasoned that Smith's allegedly negligent actions were not directly authorized by the U.S. military and therefore not protected by the FTCA's combatant activities exception. (38)

The Second Circuit also held that New York common law imposed a duty of care to air traffic controllers, like Smith, to ensure the safety of a plane flying under VFR. (39) By applying New York common law, the Court held that Appellants established a prima facie negligence claim because Midwest, via Smith's conduct, owed a duty of care to Flight 662, a reasonable jury could determine there was a breach of this duty, and the breach proximately caused Flight 662 to crash. (40) Although the Second Circuit had not...