One type of terminal radar display is TARDIS, an uncertified system which uses a
standard, off-the-shelf personal computer and monitor. Installation of TARDIS costs between
$25,000.00 and $30,000.00,

The FAA’s general policy prior to the collision was not to install terminal radar displays
unless the airport had over 30,000 itinerant operations per year. Once an airport met this
criterion, the airport could be placed on a list to receive radar equipment. However, placement
on the list did not guarantee that equipment would be provided; that decision was made by the
FAA. Waukegan Regional Airport had over 300,000 itinerant operations annually and was
eligible for placement on the list before the collision,

TARDIS was installed at nine airports before the collision — some after requests from
individual Congressmen and Senators. Steve Brown, vice-president of Operations Planning for
the Air Traffic Organization of the FAA, testified that “[p]rimarily Congressional interest” was
the factor that caused the FAA to install TARDIS. despite other installation concerns.

Monty Belger, former acting deputy administrator for the F AA, testified that whether an airport
tower received TARDIS depended on, in part, “how badly do they want it.”

A TARDIS system was installed at Chicago’s Meigs Field, a visual flight rules airport,
within six months after a mid-air collision at that airport, TARDIS was installed at Waukegan
Airport in July 2000, five months after the mid-air collision in this case.

ANALYSIS

The Government is generally immune from suits for money damages under the principle

of sovereign immunity. The Government, though, has enacted a broad waiver of that immunity

through the FTCA, which authorizes suits against the Government for money damages “for

5


Further, “where jurisdictional issues are inextricably intertwined with the merits of the
Case it is proper for the court to deny a motion to dismiss .. . for want of subject matter
Jurisdiction on the basis that there are genuine issues of fact, the resolution of which will not only
affect jurisdiction but also the very merits of the case.” Elektra Indus., Inc. v. Honeywell, Inc.,
58 F.R.D. 118, 120 (N.D. Ill. 1973) (citing Land v. Dollar, 330 U.S. 731 (1947)); see also Pratt
Cent. Park Ltd. P’ship v. Dames & Moore, Inc., 60 F.3d 350, 361 n.8 (7th Cir. 1995).

Based on the above, the discretionary function exception has not been established for
jurisdictional purposes only; and subject matter jurisdiction is found to exist in this Court.

Another exception to the Government’s waiver of soverei gn immunity for tort actions is
the independent contractor exception. Under the FTCA, the Government is only liable for torts
“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.” 28 U.S.C. § 1346(b). As used in
§ 1346(b), an employee of the Government includes “employees of any federal agency” but
excludes “any contractor with the United States.” 28 U.S.C. § 2671; Quilco v. Kaplan, 749 F.2d
480, 482-83 (7th Cir. 1984) (Quilco).

“[W]hen the relationship between the [G]overnment and a person is fixed by contract, the
distinction between an employee and independent contractor turns ‘on the absence of authority in
the principal to control the physical conduct of the alleged employee in the performance of the
contract,”” Quilco, 749 F.2d at 483 (alterations omitted) (quoting Logue, 412 U.S. at 527). “A
critica! factor in distinguishing an [employee] from a contractor is the power of the Federal
Government ‘to contro! the detailed physical performance of the contractor.’” United States v.

Orleans, 425 U.S. 807, 814 (1976) (Orleans) (quoting Logue, 412 U.S. at 528). Thus, the key

10


However, if no specific directive exists and the action taken involves the exercise of
discretion, the Government is only shielded from liability if it meets the second step by having
properly exercised its discretion. Calderon, 123 F.3d at 949. A discretionary decision is only
shielded from FTCA liability if it is susceptible to policy judgments which involve the exercise
of “social, economic, and political” judgments. Calderon, 123 F.3d at 949 (quoting Gaubert,
499 U.S. at 323). A discretionary decision that does not involve policy considerations is not
shielded from liability; instead, the act must “be based on the Purposes that the regulatory regime
seeks to accomplish.” Gaubert, 499 U.S, at 325 n.7. Also, “[t]he focus of the inquiry is not on
the agent’s subjective intent in exercising the discretion conferred by the statute, but on the
nature of the actions taken and on whether they are susceptible to policy analysis.” Gaubert,

499 U.S. at 325.

“As the Supreme Court noted in Gaubert, however, we presume that the actions are
grounded in public policy in cases where the Statute or regulations allow the government agent to
exercise discretion... .” Calderon, 123 F.3d at 950, Therefore, a plaintiff must raise allegations
that demonstrate the challenged conduct is not “grounded in the policy of the regulatory scheme,”
Gaubert, 499 U.S. at 324-25,

The issue is then whether the FAA’s decision not to provide Waukegan Regional Airport,
a visual flight rules airport, with TARDIS qualifies for exemption from the FTCA under the
second step of the discretionary function test. Thus, the key inquiry is whether the FAA’s
Judgment in this regard is grounded in policy judgments involving the exercise of social,

economic, or political judgments.


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... .” 28 U.S.C. § 1346(b); Calderon v. United States, 123 F.3d 947, 948 (7th Cir, 1997)
(Calderon). This “waiver of immunity is far from absolute; many important classes of tort
claims are excepted from the [FTCA’s] coverage.” Calderon, 123 F.3d at 948, One such
exception to the waiver of sovereign immunity is the discretionary function exception.

The discretionary function exception provides that the FTCA does not apply to:

[a]ny claim based upon an act or omission of an employee of the Government,

exercising due care, in the execution of a statute or regulation, whether or not such

statute or regulation be valid, or 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
be abused.

28 U.S.C. § 2680(a) (emphasis added). This exception applies in two circumstances: (1) when
the Government actor properly follows a mandatory Government directive, see Berkovitz v.
United States, 486 U.S. 531, 536 (1988) (Berkovitz); and (2) when the Government actor
properly exercises his discretion pursuant to a Governmental directive, Calderon,

123 F.3d at 949.

Whether the exception applies depends on two steps. Calderon, 123 F.3d at 949. The
first step determines whether the action taken was discretionary or mandatory by examining the
relevant statutes, regulations, and policies. Calderon, 123 F.3d at 949. If the action taken was
mandatory, then the Government is shielded from liability when the act is performed in

accordance with the statute, regulation, or policy. Berkovitz, 486 U.S. at 536.


With respect to the aesthetic considerations, while we acknowledge the
[Government’s] desire to maintain the park in as pristine a state as possible, the
{Government has failed to demonstrate how such a desire affects the placement
of traffic signs on {the parkway]. Indeed, the [G]overnment’s argument is
difficult for us to accept in view of the fact that, including the “slippery when
wet” signs, no less than “twenty-three traffic control, warning, and informational
signs” already exist on the half-mile stretch of road bracketing the curve where the
accident occurred — a stretch of road that carries 20,000 vehicles daily... . We
agree that in certain circumstances, decisions will be exempt under the FTCA
because they involve difficult policy judgments balancing the preservation of the
environment against the blight of excess signs. But this is not one of those
circumstances. [The parkway] is not the Grand Canyon’s Rim Drive, not
Shenandoah’s Skyline Drive, Here, the [Government] has chosen to manage the

with it. Having done so, and having taken steps to warn users of dangers inherent

in that use, the [Government] cannot argue that its failure to ensure that those

Steps are effective involves Protected “discretionary” decisions.”

Cope, 45 F.3d at 452.

The Government’s decision to install TARDIS at some airports is similar to the
Government’s actions in Cope. The Government asserts that its decision to install TARDIS at
some eligible facilities, either through the expenditure of a regional FAA authority’s
discretionary funds or at a third-party’s expense, does not demonstrate that the Government
contradicted its own policy regarding TARDIS and that it objected only to the use of national
appropriations, which were subject to Congressional oversight, to pay for TARDIS. However,
while the Government contends it chose not to install TARDIS based upon budgetary and
operational concerns, the Plaintiffs have pled and presented facts considered for purposes of
demonstrating subject matter jurisdiction that are contrary to the Government's assertions.

“[T]he discretionary function exception applies only where the question is not negligence
but social wisdom, not due care but political practicability, not teasonableness but economic

expediency.” Cope, 45 F.3d at 450 (internal quotations and citations omitted).


—\

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CHRISTINE B. COLLINS, Independent
Administrator of the Estate of
ROBERT L. COLLINS, Deceased, et al.,

No: 03 C 2958

Judge John W. Darrah
Plaintiffs,

v.
No. 03 C 2966
No. 03 C 2998

No. 03 C 3162 \~
No. 03 C 3166

)
)
)
)
)
) consolidated with
)
)
THE UNITED STATES OF AMERICA, )
)
)

Defendant.

MEMORANDUM OPINION AND ORDER

Numerous parties brought suit in state court as a result of the collision of two aircraft in
mid-air near the Waukegan Regional Airport. These parties include: (1) Aviation Training
Enterprises of Illinois, Inc., d/b/a American Flyers; (2) American Flyers, Inc.; (3) Scott Chomicz;
(4) Christine B. Collins, Independent Administrator of the Estate of Robert L. Collins;

(5) Rise’ Barkhoff, individually and as Special Administrator of the Estate of Herman F,
Luscher; (6) Edward J, Hock, Independent Administrator of the Estate of Sharon Hock;

(7) Cancer Treatment Centers of America, Inc.; (8) Midwestern Regional Medical Center, Inc.;
(9) Patient First, 8.C.; and (10) Employers Insurance of Wausau. For the purposes of this
motion, these parties are collectively referred to as “Plaintiffs.”

Thereafter, some Plaintiffs filed claims against the United States of America (“the
Government”) under the Federal Tort Claims Act (“FTCA”) in federal court, Pursuant toa
contract with the Federal Air Administration (“FAA”), Midwest Air Traffic Control Services,

Ine. (“Midwest”) a private corporation, operated the control tower that was in contact with the


question is not whether Midwest or Fowler complied with federal standards but “whether its day-
to-day operations are supervised by the Federal Government.” Orleans, 425 U.S. at 815. Other
relevant considerations include whether the Government has authority to make personnel
decisions and whether Midwest's finances were controlled by the Government. Alinsy v.

United States, 2001 WL 1095015, at *4 (citing Peoples Gas, 1990 WL 129359, at *4).

These factors and the facts that may or may not support this exception to the FTCA are
also inextricably intertwined with the merits of the case. Therefore, the independent contractor
exception has not been established for jurisdictional purposes only; and subject matter
jurisdiction is found to exist in this Court on that basis.

CONCLUSION

For the foregoing reasons, the Government’s Motion to Dismiss Consolidated Cases is

denied.

Date: f

JO} W. DARRAH, Judge
Unjéed States District Court


Midwest and Fowler contend that the Government’s decision was not grounded in public
policy considerations because, in part, the FAA chose to install TARDIS at some facilities,
including Chicago’s Meigs Field, based upon congressional lobbying and public criticism
resulting from prior accidents, According to Midwest and Fowler, once the decision was made to
install TARDIS at some but not all eligible airports, the Government cannot argue that the basis
for its decisions are protected pursuant to the discretionary function exception.

In support of this Proposition, Midwest and Fowler cite Cope v. Scott, 45 F.3d 445 (D.C.
Cir. 1995) (Cope). There, the Government was responsible for maintaining a busy parkway
which became extremely slick for vehicular traffic when wet, Cope, 45 F.3d at 446-47, The
Government decided to place traffic control signs throughout the parkway but failed to place a
“slippery when wet” warning sign at one Particularly hazardous portion, Cope,

45 F.3d at 447, 452. The Government contended that the placement of warning signs implicated

public policy concerns regarding aesthetics of the parkway. Cope, 45 F.3d at 452. The court

disagreed, stating that:


questioned whether these exceptions are jurisdictional and can be examined pursuant to Federal
Rule of Civil Procedure 12(b)(1) or, instead, are aspects of a plaintiff's statutory right to relief
and should be examined under Rule 12(b)(6). Palay, 349 F.3d at 424, The Seventh Circuit,
though, noted that it “would be obliged to defer to {a district court’s] findings of fact” concerning
the jurisdictional issues, Palay, 349 F.3d at 424-25.

However, consideration of this evidence will not convert the Government’s motion

regarding federal jurisdiction to a motion for summary judgment. Capitol Leasing, 999 F.2d at

191 (7th Cir, 1993),

BACKGROUND

The facts, for the Purposes of this motion, are as follows, In February 2000, two aircraft
collided in mid-air near the Waukegan Regional Airport. The collision occurred when a plane
piloted by either Collins or Luscher, both licensed pilots, flew into a plane operated by a student
pilot, Hock, causing both planes to collide and crash. At the time of the accident, both airplanes
were receiving air traffic control services from the Waukegan Airport air traffic control tower,
Operated by Midwest pursuant to the contract with the Government.

The Waukegan Tower was a “visual flight rules” tower, Visual flight rules impose
Tesponsibility on the pilots to locate each other and avoid collisions. Towers operating pursuant
to these rules do not require a terminal radar display. A terminal radar display is a small display
mounted in the control tower which allows tower controllers to view data from a nearby FAA

radar. Waukegan Airport did not have a terminal tadar display,


Procedure !2(b)(1) and the FTCA — specifically, pursuant to the independent contractor

exception, 28 U.S.C. § 2671, and the discretionary function exception, 28 U.S.C. § 2680(a), of
the FTCA.

LEGAL STANDARD

Generally, in reviewing a motion to dismiss, the court reviews all facts alleged in the
complaint and any reasonable inferences drawn therefrom in the light most favorable to the
plaintiff. See Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000);
Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993) (Capitol Leasing). Documents
which are referred to in a complaint and are central to a claim, as well as any matters of public
record, may be considered on a motion to dismiss. See Albany Bank & Trust Co. v. Exxon Mobil
Corp., 310 F.3d 969, 971 (7th Cir. 2002); Henson v. CSC Credit Serv., 29 F.3d 280, 284 (7th Cir.
1994). A plaintiff is not required to plead the facts or elements of a claim. See Swierkiewicz v.
Sorema, 534 U.S. 506, 511 (2002); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002).
Dismissal is warranted only if “it appears beyond a doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41,
45-46 (1957). The “suit should not be dismissed if it is possible to hypothesize facts, consistent
with the complaint, that would make out a claim.” Graehling v. Village of Lombard, Ill., 58 F.3d
295, 297 (7th Cir. 1995).

The Government's 12(b)(1) motion challenges subject matter jurisdiction. In reviewing a
motion to dismiss under Rule 12(b)(1), a court may “look behind the plaintiff’s allegations and
make factual findings for purposes of assessing its subject matter jurisdiction.” Palay v.

United States, 349 F.3d 418, 424-25 (7th Cir. 2003) (Palay). The Seventh Circuit has recently


two planes prior to collision. Plaintiffs contend the Government committed numerous acts of
negligence regarding the operation of the air traffic control tower at the Waukegan Airport. The
State court cases were removed and consolidated into the present action. Midwest and Gregory
Fowler, the air traffic controller allegedly responsible for the aircraft which collided, were
granted leave to intervene as Defendants. United States v. Collins, 03 C 2958, 2004 WL 407016
(N.D. Ill. Jan. 28, 2004),

Most of the claims against the Government fall into three categories of allegations:
(1) that the Government negligently administered and oversaw the Waukegan Airport air traffic
control tower; (2) that the Government should be liable for the negligence of the air traffic
controller; and (3) that the Government negligently failed to install proper radar or other airplane
detection equipment at the Waukegan Airport air traffic control tower, which was in
communication with both planes. Plaintiffs specifically plead in the Complaint

28. On and before February 8, 2000, defendant, THE UNITED STATES OF

AMERICA, was negligent, in breach of its aforementioned duty, in that the FAA

personnel acting at all times were negligent, in that they...

¢, failed to install a Terminal Automated Radar Display and Information System

(TARDIS) at the Waukegan Tower air traffic control tower, which would have

given the FAA air traffic controller knowledge of the locations of [the two planes]

when they were in the vicinity of the airport, despite it knowing or in the exercise

of reasonable care should have known that such a system was necessary to

company [sic] with all of its requirements under all applicable statutes, codes,

directives, and orders ....

The claims against the Government are the only claims which support original federal
subject matter jurisdiction. The remaining claims are brought in federal court pursuant to the

supplemental jurisdiction statute, 28 U.S.C. § 1367. Presently before the Court is the

Government’s Motion to Dismiss All Consolidated Cases pursuant to Federal Rule of Civil