Alinsky, Diana L. v. United States

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 04-2877, 04-3051, 04-3052, 04-3053,

04-3087, 04-3088, 04-3089 & 04-3090

DIANA L. ALINSKY, individually and

as personal representative of the

Estate of Paul Alinsky, deceased, et al.,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________

Appeals from the United States District Court for

the Northern District of Illinois, Eastern Division.

Nos. 98 C 6189, 99 C 1738, 99 C 2447

& 99 C 2883—James B. Zagel, Judge.

____________

ARGUED FEBRUARY 10, 2005—DECIDED JULY 13, 2005

____________

Before MANION, EVANS, and SYKES, Circuit Judges.

MANION, Circuit Judge. On July 19, 1997, two private

airplanes crashed in mid-air over the Chicago lakefront,

killing all seven occupants. At the time of the crash, both

airplanes were receiving air traffic services from Meigs Field

Air Traffic Control Tower, operated by a private contractor

2 Nos. 04-2877, et al.

to the Federal Aviation Administration (“FAA”). The estates

and relatives of the decedents filed multiple lawsuits

against a number of defendants in state and federal court.

This case pertains to the estates’ suits against the United

States under the Federal Tort Claim Act. The district court

granted the United States summary judgment on several

claims and held a trial on others. Following the trial, the

district court ruled in favor of the United States on the

remaining claims. The plaintiffs appeal.

I.

On July 19, 1997, two airplanes collided in mid-air ap-

proximately three miles south of Meigs Field in Chicago,

1

Illinois. All seven occupants of the planes perished.

At the time of the collision, Renee Toone was staffing the

air traffic control tower at Meigs Field. Toone worked for

Midwest Air Traffic Control, Inc., a private contractor hired

by the FAA to provide air traffic control services for Meigs

Field. For purposes of appeal, the parties assume that

Toone’s failure to inform the pilots of the two planes that

they were on a collision course was the cause of the fatal

crash.

Following the crash, the estates and relatives of the de-

cedents filed numerous suits against various parties, in-

cluding the City of Chicago, Midwest, Renee Toone, the

estates of the pilots of the airplanes which collided, and the

pilot of a third airplane flying near Meigs Field. Most of the

state court cases were settled, but one was tried. A jury

found the pilot of a third airplane, who at the time of the

1

They were Paul Alinsky, Jeffrey Walker, Colleen Canty, Sheba

Van Pelt, Taiciana Phillips, Donetta Ladd, and Barbara Polka.

Nos. 04-2877, et al. 3

collision was communicating with Toone about a landing

gear problem, liable in the amount of $2,195,416. Walker v.

Segal, Cook Cty. Cir. Ct. No. 2002-L-2169. The present case

involves the estates’ consolidated suit against the

United States under the Federal Tort Claim Act, 28 U.S.C.

§§ 1346 et seq. (“FTCA”).

The plaintiffs’ FTCA suit alleged claims under multiple

theories. First, the plaintiffs sought to hold the United States

liable, arguing the United States had a non-delegable duty

to provide air traffic control services and was thus responsi-

ble for Toone’s negligence. The plaintiffs also alleged the

United States was liable for its own negligence by allowing

an allegedly untrained and unqualified controller to staff

Meigs tower. Finally, the plaintiffs alleged that the

United States was liable because it negligently delayed

approving additional staffing at Meigs.

Initially, we must address the timeliness of this appeal. As

noted above, the plaintiffs’ cases were consolidated. None-

theless, in issuing its final decision on the matter, the district

court issued four separate Memorandum Opinion and

Orders, identical except for the caption and the names of the

parties. On January 27, 2004, in three of the four cases, the

district court also entered a separate final judgment in favor

of the United States, each of which was docketed two days

later. However, in the lead case, Alinsky, No. 98-CV-6189,

the district court did not enter a separate judgment, as the

final judgment form was inadvertently attached to the last

page of the corresponding Memorandum Opinion and

Order. Although the Memorandum Opinion and Order in

the Alinksy case was docketed, the judgment form was not

separately entered on the docket, as was done in the other

three cases. It was not until June 17, 2004, that the district

court entered a separate judgment in the lead case of

Alinksy, after which all of the plaintiffs filed a notice of

appeal on July 21, 2004.

4 Nos. 04-2877, et al.

Federal Rule of Appellate Procedure 4(a)(1)(B) provides

that when the United States is a party to the action, the

notice of appeal must be filed “within 60 days after the

judgment or order appealed from is entered.” The district

court docketed the judgment against three of the plaintiffs

on January 29, 2004, but these three plaintiffs did not file a

notice of appeal until July 21, 2004, after the district court

had entered a separate judgment in the Alinsky case on June

17, 2004. However, this court held in Sandwiches, Inc. v.

Wendy’s Int’l, Inc., 822 F.2d 707 (7th Cir. 1987), that where

two cases are consolidated for all purposes, a single judg-

ment not covering all claims and parties is not appealable

2

absent a ruling under Fed. R. Civ. P. 54(b). Id. at 709. Be-

cause the district court consolidated these cases for discov-

ery and trial, we conclude that the sixty-day time period for

filing a notice of appeal did not begin to run until a final

judgment was entered for all four cases.

The question then becomes when did the district court

“enter” a final judgment in the Alinsky case. As noted above,

on January 27, 2004, the district court issued its Memoran-

dum Opinion and Order ruling in favor of the Untied States

in the Alinksy case, and that order was docketed on January

29, 2004. However, Fed. R. Civ. P. 58(a)(1) provides that

“[e]very judgment and amended judgment must be set forth

on a separate document . . . .” The district court had also

prepared a Rule 58 judgment in the Alinsky case, but that

2

Fed. R. Civ. P. 54(b) provides: “When more than one claim for

relief is presented in an action, whether as a claim, counterclaim,

crossclaim, or third-party claim or when multiple parties are

involved, the court may direct the entry of final judgment as to

one or more but fewer than all of the claims or parties only upon

an express determination that there is no just reason for delay

and upon an express direction for the entry of judgment.”

Nos. 04-2877, et al. 5

form was mistakenly stapled to the end of

the Memorandum Opinion and Order and not separately

docketed at that time. Because the judgment form was not

a separate document, as required under Rule 58(a)(1), we

conclude that judgment in Alinksy was not “entered” on

January 29, 2004. See Fed. R. Civ. P. 58(b)(2) (“Judgment is

entered for purposes of these rules: if Rule 58(a)(1) requires

a separate document, when it is entered in the civil docket

under Rule 79(a) and when the earlier of these events oc-

curs: (A) when it is set forth on a separate document, or (B)

when 150 days have run from entry in the civil docket under

Rule 79(a)”).

The government acknowledges that if the judgment form

attached to the Memorandum Opinion and Order is not

considered a separate document, then the plaintiffs’ appeal

is timely because, under Rule 58(b)(2)(B), the time for filing

an appeal would not start until June 28, 2004 (150 days from

January 29, 2004), and the plaintiffs would have sixty days

from that date to file a notice of appeal. The plaintiffs take

issue with the government’s interpretation of Rule 58(b)(2),

claiming that the 150-day provision did not start on

January 29, 2004, because the district court did not docket a

“separate document” on that date. Rather, the plaintiffs

maintain that the time for filing an appeal did not begin to

run until June 17, 2004, when the district court entered a

separate judgment in the Alinsky case. It is unclear why the

plaintiffs take issue with the government’s view because,

under the United States’ interpretation, the time for filing an

appeal began at a later date. However, we need not worry

ourselves with this question or resolve the dispute over the

interpretation of Rule 58(b)(2), because under either reading,

the notices of appeal filed on July 21, 2004, were timely.

6 Nos. 04-2877, et al.

II.

That brings us to the merits of this appeal. On appeal, the

plaintiffs argue that the district court erred in holding that

it lacked jurisdiction to consider their claim against the

United States under the FTCA based on Toone’s alleged

negligence. The FTCA provides a limited waiver of the

federal government’s sovereign immunity. The FTCA 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 . . . .” 28 U.S.C.

§ 1346(b). An “employee of the government” includes

military personnel and “employees of any federal agency.”

28 U.S.C. § 2671. The term “federal agency” expressly

excludes “any contractor with the United States.” 28 U.S.C.

§ 2671; see also United States v. Orleans, 425 U.S. 807, 814

(1976); Logue v. United States, 412 U.S. 521, 526-27 (1973).

In this case, Toone was not an employee of the

United States. Rather, she worked for Midwest Air, an in-

dependent contractor hired by the United States to provide

air traffic control services for Meigs Field. Therefore, under

the FTCA, the district court lacked jurisdiction to consider

any claims against the United States based on Toone’s

negligence.

The plaintiffs seek to overcome Toone’s status as an

employee of an independent contractor by arguing that the

United States lacked the authority to hire private contractors

to provide air traffic control services. In support of this

position, the plaintiffs cite to 49 U.S.C. App. § 1344(h),

which was in effect at the time of the accident. That section

provided:

The Secretary may make a contract, on a sole source

basis, with a State or political subdivision of a State to

Nos. 04-2877, et al. 7

allow the State or subdivision to operate an airport

traffic control tower classified as a level I (Visual Flight

Rules) tower if the Secretary decides that the State or

subdivision has the capability to comply with the

requirements of this paragraph. The contract shall re-

quire that the State or subdivision comply with applica-

ble safety regulations in operating the facility and with

applicable competition requirements in making a

subcontract to perform work to carry out the contract.

49 U.S.C. App. § 1344(h).

The plaintiffs maintain that because this section referred

only to contracts with the State or a political subdivision, the

FAA lacked authority to contract with private organizations

to provide air traffic control services. They further argue

that an amendment to that section (effective in 2003)

confirms their position because Congress subsequently

modified the statute to provide that the FAA may enter into

contracts for air traffic control services with any “qualified

entity.” 49 U.S.C. § 47124(b)(2).

The FAA, however, does not rely on these statutory

provisions as authority for subcontracting with Midwest.

Rather, the FAA relies on several other statutory grants of

authority, such as 49 U.S.C. § 106(l)(6), which provides:

The Administrator is authorized to enter into and

perform such contracts . . . as may be necessary to carry

out the functions of the Administrator and the

Administration. The Administrator may enter into such

contracts . . . with any . . . person, firm, association,

corporation, or educational institution, on such terms

and conditions as the Administrator may consider ap-

propriate.

49 U.S.C. § 106(l)(6). The FAA also relies on 49 U.S.C.

§ 40110, which provides that the Administrator “may

8 Nos. 04-2877, et al.

acquire services,” and 49 U.S.C. § 40111, which authorizes

the Administrator to enter contracts for services, including

services for the “operation of facilities and installations.”

The provisions the FAA cites clearly authorize the FAA to

enter into contracts as necessary, including for services to

operate the air traffic control facilities. Nothing in the

language of 49 U.S.C. § 1344(h) limits this broad grant of

authority. Nor have the plaintiffs pointed to any statutory

provisions which prohibit the FAA from hiring private con-

tractors for air traffic control services. In fact, at the time of

the accident, the FAA had contracted with private contrac-

tors to provide air traffic control services at approximately

130 other air traffic control towers, like Meigs.

Moreover, we find the plaintiffs’ reliance on 49 U.S.C.

§ 1344(h) misplaced. That section spoke of contracting with

States or political subdivisions, but did not mention private

contractors. Nor did the statute in any way limit the FAA’s

authority to contract with private contractors—an authority

confirmed by other statutory provisions. It would also be

illogical to conclude that Congress intended to prohibit the

FAA from hiring private contractors to provide air traffic

control services where § 1344(h) recognized that the States

and political subdivisions had the authority to subcontract

out services. See 49 U.S.C. § 1344(h) (“The contract shall re-

quire that the State or subdivision comply with applicable

safety regulations in operating the facility and with applicable

competition requirements in making a subcontract to perform

work to carry out the contract.”). For all of these reasons, we

Nos. 04-2877, et al. 9

refuse to read the permissive language of § 1344(h) as

prohibitive, or as overcoming the express grant of authority

3

Congress provided in other statutory provisions.

Alternatively, the plaintiffs argue that the FAA is nonethe-

less liable for Toone’s conduct because air traffic control

services are nondelegable. In support of their position, the

plaintiffs cite Illinois tort cases holding that a principal is

liable for torts committed by an independent contractor

where the contractor performs abnormally dangerous ac-

tivities because such activities are nondelegable. However,

as the Supreme Court in Logue explained, in adopting the

FTCA’s contractor exception to liability, Congress did not

simultaneously adopt the various state exceptions to the

independent contractor rule. 412 U.S. at 528. Rather, Con-

gress expressly granted jurisdiction for suits brought against

the United States for its employees’ conduct, and not the

conduct of contractors. State common law principles cannot

overcome this federal statute. See Roditis v. United States, 122

F.3d 108, 111 (2d Cir. 1997); Berkman v. United States, 957

F.2d 108, 112-13 (4th Cir. 1992); Flynn v. United States, 631

F.2d 678, 681-82 (10th Cir. 1980); Alexander v. United States,

605 F.2d 828, 835 (5th Cir. 1979); Gibson v. United States, 567

F.2d 1237, 1243-44 (3d Cir. 1977). But see Dickerson, Inc. v.

United States, 875 F.2d 1577, 1583 (11th Cir. 1989) (holding

that “the independent contractor exception in the FTCA

would not insulate the Government from the contractor’s

negligence if the duty was non-delegable under Florida

law”). Accordingly, the plaintiffs’ attempts to hold the

3

Furthermore, even if the FAA acted without authority in

contracting with Midwest Air, that would not render Toone an

employee of the United States government, and Congress only

waived immunity for suits brought against United States em-

ployees.

10 Nos. 04-2877, et al.

United States liable for Toone’s conduct fail because she was

an employee of Midwest, a private contractor, and not the

United States.

The plaintiffs also challenge the district court’s decision in

favor of the United States on their remaining negligence

claims. Specifically, the plaintiffs alleged the United States

negligently failed to respond to Midwest’s request for fund-

ing for additional air traffic controllers, and negligently

administered the contract with Midwest by allowing an

allegedly untrained and unqualified controller (Toone) to

stand watch alone.

First, we consider the plaintiffs’ claim that the FAA was

negligent in failing to approve Midwest’s request for fund-

ing for an additional air traffic controller. To fully under-

stand this claim, we must first explain a few additional

facts. The contract between the FAA and Midwest required

Midwest to take responsibility for staffing and operating the

tower at Meigs in accordance with the staffing plan sub-

mitted by Midwest with its bid to provide air traffic control

services. In its bid, Midwest stated that it would, at times,

staff the tower with a single controller. Midwest, however,

also agreed to increase staffing “with no increase to the

contract price” if it determined that a facility’s staffing

needed to be increased.

On April 17, 1997, about two months after opening Meigs

Tower with the level of staffing it had designated in its bid,

namely one controller, Midwest requested additional fund-

ing from the FAA’s Regional Point of Contract for contract

towers in the Great Lakes Region so that it could hire

another air traffic controller. Midwest made this request be-

cause it had noticed an increase in traffic at Meigs. The

request was not marked as an emergency request and there-

fore was handled in the routine manner, which meant that

the Regional Office sent a memorandom to the Federal

Nos. 04-2877, et al. 11

Contract Tower Program Office at the FAA headquarters in

Washington, D.C., requesting that the contract be modified

to increase staffing at Meigs Tower. The Contract Tower

Program Office then processed this request, which accord-

ing to the manager would normally take between six to

eight weeks, although in an emergency situation the office

has been able to increase staffing within two to three weeks.

Following review by the Contract Tower Program Office,

the FAA officially approved the request for increased

staffing on July 3, 1997, which was a little over two weeks

before the accident.

The plaintiffs argue that the FAA was negligent in failing

to respond sooner to Midwest’s request for additional air

traffic controllers at Meigs and that the lack of adequate

staffing caused the fatal crash. After a bench trial on this

claim, the district court held that the FAA acted reasonably

in considering the non-emergency request by Midwest for

a contract modification to increase staffing at Meigs Tower.

This court reviews that factual finding for clear error. See

Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1044 (7th Cir. 2002).

On appeal, the plaintiffs fail to demonstrate that the

district court’s factual finding was clearly erroneous. They

merely posit that the government should have acted faster

in response to Midwest’s request for additional funding.

However, the evidence established that the FAA had no rea-

son to view the request as an emergency and that the FAA

responded within the regular time frame necessary for the

government to process such requests, and that it approved

additional funding more than two weeks before the acci-

dent. Moreover, the evidence established that Midwest did

not need approval to increase staffing levels at Meigs. As

noted above, Midwest’s contract with the FAA required

Midwest to increase staffing levels if needed. In fact, about

two weeks before the accident, Midwest provided a “quick

12 Nos. 04-2877, et al.

response team” to help control traffic at Meigs due to an in-

crease in air traffic related to a weekend convention. There-

fore, even if the FAA should have processed Midwest’s

request for additional funding more promptly, that delay

did not cause the accident because Midwest was required

by the contract with the FAA to assign additional controllers

to the tower, if necessary, with or without funding. Thus,

the FAA’s funding decision did not cause the alleged

4

understaffing. Accordingly, the district court did not clearly

err in finding in favor of the United States on the plaintiffs’

claim that the United States negligently delayed the approval

of additional funding.

Finally, the plaintiffs argue that the United States was

negligent because it allowed Midwest to staff the control

tower with Toone who, according to the plaintiffs, was not

qualified to stand watch alone because she had not com-

pleted a required training course and did not have six

months’ experience at Meigs Field. The government re-

sponds that it waived the six-month experience requirement

because Meigs Field had just been reopened and thus it was

impossible for any controller to have six months of experi-

ence at Meigs. As to the training class, the government

points out that the class at issue concerned administrative

5

issues and not safety issues, and that Toone had received

equivalent training from Midwest.

4

Moreover, the evidence established that even had additional

funding been approved, only one controller would have staffed

the tower at the time of the accident because the accident oc-

curred in the evening, and Midwest’s revised staffing plan called

for only one controller after 6:00 p.m.

5

The plaintiffs admit that “[t]he course itself did not tell the

controller how to control aircraft, but rather was directed at what

can be described as general facility administration.”

Nos. 04-2877, et al. 13

While the parties debate the details of the six-month ex-

perience requirement and whether it was waived, there is a

more fundamental problem with the plaintiffs’ negligence

claims. The contract between the United States and Midwest

required Midwest to staff the control tower with trained and

qualified controllers, and it was Midwest’s obligation to do

so, not the United States’. The district court recognized this

fact in granting the United States partial summary judgment

on claims premised on negligent oversight or training.

The discretionary function exception to the FTCA pro-

vides 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.” 28 U.S.C. § 2680(a).

Whether the discretionary function exception bars suit

against the United States depends upon two factors. See

Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536

(1988). First, whether the government employees violated a

specific mandatory statute, regulation, or policy, and sec-

ond, whether the conduct involved was the type of conduct

that Congress intended to shield from liability. Id. at 536.

This latter factor highlights that only governmental actions

based upon considerations of public policy are exempt. Id.

at 537.

Here, Congress authorized the FAA to enter into contracts,

as necessary, to carry out the functions of the FAA, and thus

the government did not violate a specific mandatory statute,

regulation or policy in hiring Midwest to provide training

and oversight at Meigs. The plaintiffs also fail to identify

any mandatory statute or regulation dictating how the FAA

must oversee private contractors or assure the contractor

complies with federal regulations and the contract provi-

sions. Where the plaintiffs’ claim is premised on negligent

14 Nos. 04-2877, et al.

oversight, such a showing is imperative. See, e.g., Kirchmann

v. United States, 8 F.3d 1273, 1276 (8th Cir. 1993) (holding

that the federal regulatory provisions relied upon by the

plaintiffs in their FTCA claim did not implicate a mandatory

statute because “each regulation governs operations where

the Air Force itself, rather than a contractor” performed the

specific operation).

Because the plaintiffs failed to establish that the govern-

ment violated a mandatory statute, regulation or policy, we

next consider whether the decision at issue is one Congress

intended to protect from liability. In this case, the govern-

ment’s decision to contract out air traffic control services

was based on budgetary concerns, as well as a desire to

reopen smaller air traffic control locations—both of which

are clearly policy decisions. Thus, the discretionary function

exemption protects the government from liability for claims

premised on the lack of training, oversight, or qualifications

of air traffic controllers, since the government acted within

its discretion to contract those responsibilities out to

Midwest. Cf. United States v. S.A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), 467 U.S. 797 (1984) (holding that

“actions against the FAA for its alleged negligence

in certificating aircraft for use in commercial aviation are

barred by the discretionary function exception of the

Federal Tort Claims Act,” id. at 821, because the FAA’s de-

cisions as to the manner of enforcing regulations is plainly

a discretionary activity, id. at 819-21); Kirchmann, 8 F.3d at

1276-77 (holding that claims by a farmer and his family

against the United States under the FTCA based on ground-

water contamination caused during construction of a nearby

missile site were barred because any negligence of the

government in supervising the contractors’ employees was

protected under the discretionary function exception to the

FTCA). The plaintiffs’ remaining claims seek to hold the

Nos. 04-2877, et al. 15

United States liable for alleged negligence in the training

and staffing of Meigs. These are responsibilities for which

the United States, in its discretion, decided to contract to

Midwest. As a result, these claims are bared by the discre-

tionary function exemption. Accordingly, the district court

properly granted the United States summary judgment on

these claims.

Finally, the plaintiffs argue that the district court erred

in denying their motion for leave to file an amended com-

plaint. The plaintiffs had requested leave to file an amended

complaint after the district court granted the defendants

partial summary judgment. The district court denied this

motion, finding that all but one issue raised in the proposed

amended complaint had been disposed of by the partial

summary judgment ruling. The one new issue alleged the

United States was negligent in failing to install radar equip-

ment at Meigs. The plaintiffs do not assert this theory on

appeal. Rather, they maintain that the district court should

have allowed them to amend their complaint to include

specific allegations about FAA orders which governed the

conduct of FAA controllers. However, as the district court

concluded, allowing such an amendment would be futile

because the court had already considered the claimed

violations of FAA orders in the context of the previous

complaint. Moreover, the district court concluded that even

if the amendment were not futile, it would nonetheless deny

the motion because it would be unduly prejudicial to the

United States. Given that the plaintiffs’ motion came ap-

proximately three years after the start of the litigation and

approximately eight months after the plaintiffs completed

discovery, the district court did not abuse its discretion in

denying the plaintiffs leave to amend their complaint. See

Perrian v. O’Grady, 958 F.2d 192, 194 (7th Cir. 1992) (holding

that appellate court should overturn a district court’s denial

of a motion to amend a complaint only if the district court

has abused its discretion).

16 Nos. 04-2877, et al.

III.

Paul Alinsky, Jeffrey Walker, Colleen Canty, Sheba Van

Pelt, Taiciana Phillips, Donetta Ladd, and Barbara Polka

died in a tragic accident. The United States, however, is not

liable for their deaths because it did not provide the al-

legedly negligent air traffic control services, and Midwest,

not the United States, was responsible for training and staf-

fing at Meigs. For these and the foregoing reasons, we

AFFIRM.

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-13-05