Peggy S. LeGrande v. United States

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2205

P EGGY S. L EG RANDE,

Plaintiff-Appellant,

v.

U NITED STATES OF A MERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:08-cv-02047—Joan B. Gottschall, Judge.

A RGUED O CTOBER 26, 2011—D ECIDED JULY 18, 2012

Before R IPPLE and H AMILTON, Circuit Judges, and

M YERSCOUGH, District Judge.Œ

R IPPLE, Circuit Judge. While working as a flight

attendant on Southwest Airlines Flight 2745, Peggy S.

LeGrande was injured when the aircraft encountered

severe turbulence. She brought this action against the

Œ

The Honorable Sue E. Myerscough of the Central District

of Illinois, sitting by designation.

2 No. 11-2205

United States under the Federal Tort Claims Act (“FTCA”),

28 U.S.C. § 2674, alleging that air traffic controllers em-

ployed by the Federal Aviation Administration (“FAA”)

negligently had failed to warn the flight’s captain that

turbulence had been forecast along the flight path. 1 The

district court concluded that FAA employees did not

breach any duty owed to Ms. LeGrande and granted

summary judgment for the United States. Ms. LeGrande

now seeks reversal of the district court’s judgment.2

She also contends, for the first time in this litigation,

that her injuries resulted from the negligence of a

National Weather Service (“NWS”) meteorologist. Be-

cause the FAA breached no duty owed to Ms. LeGrande,

and because Ms. LeGrande failed to give the NWS the

notice that the FTCA requires, we affirm the judgment

of the district court.

I

BACKGROUND

A.

Before discussing the events that culminated in Ms.

LeGrande’s injuries, we set forth, in summary form, the

role that the FAA and the NWS play in the operation of

our Nation’s air traffic control system.

1

The district court has jurisdiction under 28 U.S.C. §§ 1331

and 1346(b).

2

We have jurisdiction under 28 U.S.C. § 1291.

No. 11-2205 3

1.

The FAA operates a nationwide network of ground-

based air traffic control centers that are responsible for

aircraft flying in the national airspace system. As Justice

Jackson wrote in his concurring opinion in Northwest

Airlines, Inc. v. Minnesota, 322 U.S. 292 (1944):

Federal control is intensive and exclusive. Planes

do not wander about in the sky like vagrant clouds.

They move only by federal permission, subject to

federal inspection, in the hands of federally certi-

fied personnel and under an intricate system of

federal commands. The moment a ship taxis

onto a runway it is caught up in an elaborate

and detailed system of controls.

Id. at 303 (Jackson, J., concurring); see also City of Burbank

v. Lockheed Air Terminal, 411 U.S. 624, 633 (1973).

The FAA operates more than three hundred facilities

for the control of aircraft. These facilities are located

throughout the United States and have different capabili-

ties, depending on their role in the Nation’s air

transport system. Central to the case before us is the

Air Route Traffic Control Center (“ARTCC”). Its basic

mission is to provide air traffic control service to aircraft

operating within controlled airspace, principally during

the en route phase of flight. See Michael S. Nolan, Funda-

mentals of Air Traffic Control (5th ed. 2011). The ARTCC

responsible for providing guidance to Flight 2745 at

all times pertinent to our discussion is located in Cleve-

land, Ohio (the “Cleveland Center”), and is responsible

for air traffic control in high-altitude airspace over

4 No. 11-2205

portions of six states—Maryland, Michigan, New York,

Ohio, Pennsylvania and West Virginia—as well as

southern Ontario.

ARTCC facilities are staffed by air traffic controllers

employed by the FAA. Operating under FAA directives,

the primary duties of air traffic controllers are to

prevent collisions between aircraft flying in the air space

sectors assigned to them, organizing and expediting the

flow of air traffic, and supporting national security and

homeland security operations. To the extent consistent

with these primary responsibilities, air traffic con-

trollers also provide lower-priority services to operating

aircraft, including broadcasting certain specific weather-

related information to pilots.

2.

FAA personnel receive various weather reports, called

“weather products.” These are provided by the three

Meteorological Watch Offices 3 and by NWS meteor-

ologists stationed at the Center Weather Service Units

embedded in each ARTCC, including the Cleveland

Center. This case involves several weather products;

we shall describe them briefly.

3

The Meteorological Watch Offices include the Aviation

Weather Center in Kansas City, Missouri, the Alaska Aviation

Weather Unit and the Weather Forecast Office in Honolulu,

Hawaii.

No. 11-2205 5

a. Meteorological Impact Statement

A Meteorological Impact Statement (“MIS”) is “an

unscheduled flow control and flight operations planning

forecast” that a meteorologist provides to assist FAA

personnel in “making flow control-type decisions.” NWS

Instruction 10-803 § 7.5 (Jan. 5, 2005). NWS regulations

state that, at a minimum, an MIS should be issued when:

a. Any of the following conditions occur, are

forecast to occur, and, if previously forecast, are no

longer expected:

(1) Conditions meeting convective SIGMET

criteria (see NWSI 10-811)

(2) Icing—moderate or greater

(3) Turbulence—moderate or greater

(4) Heavy precipitation

(5) Freezing precipitation

(6) Conditions at or approaching Low IFR (see

NWSI 10-813)

(7) Surface winds/gusts [greater than or equal

to] 30 knots

(8) Low Level Wind Shear (surface—2,000 feet)

(9) Volcanic ash, dust storms, or sandstorms;

and

b. In the forecaster’s judgment, the conditions

listed above, or any others, will adversely impact

the flow of air traffic within the ARTCC area of

responsibility.

6 No. 11-2205

Id. (emphasis in original). An MIS is designed as a broad

prediction; it is valid for up to twelve hours and can

cover a wide geographic area. These weather products

are designed to provide those responsible for the flow of

aircraft traffic with an estimation of weather conditions

that may interfere with air traffic patterns in the hours

ahead. Although this weather product is publicly

available on the NWS Aviation Weather Center website,

air traffic controllers do not broadcast an MIS to pilots.

Pilots in command of aircraft aloft need real time

weather information to handle current situations on the

aircraft’s route of travel. This report simply does not

supply that information.

b. Center Weather Advisory

A Center Weather Advisory (“CWA”) is a warning that

weather conditions in a relatively limited geographic area

are expected to approach or meet national in-flight advi-

sory criteria. NWS Instruction 10-803 § 7.6 (Jan. 5, 2005).

In contrast to an MIS, a CWA is “primarily used by

air crews to anticipate and avoid adverse weather con-

ditions.” Id. NWS regulations state:

There are four (4) situations in which a CWA

should be issued:

1. When existing or anticipated weather condi-

tions do not meet national in-flight advisory crite-

ria (i.e., in terms of intensity or areal coverage)

but current [pilot reports] or other weather infor-

mation sources indicate those conditions, in the

judgment of the [Center Weather Service Unit]

No. 11-2205 7

meteorologist, will adversely impact the safe

flow of air traffic within the ARTCC area of

responsibility.

2. As a supplement to an existing in-flight advi-

sory. The issuance of a CWA in this circumstance

should be limited to occasions when, in the judg-

ment of the [Center Weather Service Unit] meteo-

rologist, a redefining statement or update, in

advance of a new national advisory, is adequately

supported by real-time information. . . .

3. When an in-flight advisory has not been

issued, but observed or expected weather condi-

tions meet in-flight advisory criteria (based on

current [pilot reports] and/or other sources of

information). . . .

4. To cancel a CWA when the phenomenon

described in the CWA is no longer expected. . . .

Id.

When a meteorologist issues a CWA, the information

is printed on a General Information Strip at the

responsible air traffic controllers’ stations. Each air

traffic controller reads the strip aloud, broadcasting it

once to all pilots on that radio frequency. If the informa-

tion includes certain weather conditions, the con-

troller advises pilots to tune into the Hazardous Inflight

Weather Advisory Service (“HIWAS”), Flight Watch

or Flight Service, depending on the geographic area.4

4

The HIWAS broadcasts “[c]ontinuous recorded hazardous

(continued...)

8 No. 11-2205

c. Pilot Report

A Pilot Report (“PIREP”), as the name suggests, is a

report of adverse weather conditions that an air traffic

controller receives directly from a pilot rather than

from an NWS Meteorological Watch Office or an NWS

meteorologist at a Center Weather Service Unit. The

relevant FAA directive instructs air traffic controllers to

“[s]olicit PIREPs when requested or when one of [an

enumerated list of] conditions exists or is forecast for

[their] area of jurisdiction.” FAA Job Order 7110.65P § 2-6-

3(a). Weather conditions under which an air traffic con-

troller should solicit PIREPs include “[t]urbulence of

moderate degree or greater.” Id. § 2-6-3(a)(4). Upon re-

ceiving a PIREP, an air traffic controller broadcasts it to

relevant flights and enters it into the air traffic control

computer system. PIREPs are publicly available on the

FAA website.

PIREPs are common; the record reflects that the Cleve-

land Center receives hundreds to thousands of PIREPs

every day. They also are limited temporally in their

usefulness; FAA regulations do not identify a specific

duration for each PIREP, but the parties agree that PIREPs

“provide useful weather data for 30 to 60 minutes,

unless pilots continue to report the same weather condi-

tion in the same location.” R.70 at 11.

4

(...continued)

inflight weather forecasts . . . to airborne pilots.” FAA Pi-

lot/Controller Glossary. The HIWAS is not available in all

areas; Flight Watch and Flight Service provide en route weather

updates and pilot weather reports in non-HIWAS areas.

No. 11-2205 9

B.

With this background, we turn to the events of Febru-

ary 10, 2006, that are the factual predicate of this action.

On that day, Ms. LeGrande was working as a flight at-

tendant on a Southwest Airlines aircraft. Throughout the

day, the aircraft had been flying various routes in the

Midwest. Its penultimate trip was from Chicago to Cleve-

land. Its final trip of the day was the return trip from

Cleveland to Chicago. For this final leg of its daily sched-

ule, the aircraft was operating as Southwest Airlines

Flight 2745.

During the course of that day, Thomas Janus, an NWS

meteorologist on duty at the Cleveland Center Weather

Service Unit, issued three weather products relevant to

this litigation: MIS 02, MIS 03 and a CWA. Both MIS 02

and MIS 03 warned the FAA’s Traffic Management

Unit that, over the twelve-hour period following the

issuance of each MIS, frequent moderate turbulence to

isolated severe turbulence could develop over portions

of Michigan, New York, Ohio and Pennsylvania—a large

part of the airspace within the Cleveland Center’s area

of responsibility. Janus issued the first of these weather

products, MIS 02, at 2:42 p.m. He limited it to altitudes

of 17,000 to 27,000 feet. The second weather product, MIS

03, was issued at 9:06 p.m. and related to the same geo-

graphic area but to altitudes of 17,000 to 32,000 feet. Janus

also issued a CWA at 8:31 p.m., in response to a PIREP

of severe turbulence at 32,000 feet in airspace east of

Cleveland. The parties do not dispute that Janus believed

the weather system was moving east from Cleveland.

10 No. 11-2205

Prior to departure on the final leg of the aircraft’s daily

schedule, a Southwest Airlines dispatcher provided the

captain of Flight 2745 with a pre-flight information

packet. The packet contained weather-related informa-

tion, including a private meteorologist’s forecast of moder-

ate turbulence at 20,000 to 26,000 feet and a number of

PIREPs, one of which was a report of severe turbulence at

20,000 to 22,000 feet over Windsor, Ontario.5 Based on

this information, the Southwest Airlines dispatcher

advised the captain of Flight 2745 to fly at 30,000 feet.

However, the captain elected to fly at 20,000 feet because

he had encountered turbulence above 24,000 feet on the

previous flight from Chicago to Cleveland. The captain

requested and received permission from the controller

at the Cleveland Center to fly at 20,000 feet; he did not

inform his Southwest Airlines dispatcher of his decision.

Neither the dispatcher nor the air traffic controller in-

formed Flight 2745 of MIS 02, MIS 03 or the CWA that

Janus had issued earlier.

Flight 2745 took off from Cleveland Hopkins Interna-

tional Airport at 9:40 p.m. Shortly thereafter, the aircraft

encountered a light to moderate bump, and the pilots

instructed the flight attendants to take their seats. Within

5

Several PIREPs were not included in the Southwest Airlines

weather package because the dispatcher did not consider

them pertinent to Flight 2745. These included a 6:45 p.m. report

of severe turbulence at 19,000 to 21,500 feet over the Boiler

VHF Omnidirectional Radio Range and an 8:10 p.m. report

of moderate to severe turbulence at 20,000 to 21,000 feet over

Portland, Indiana.

No. 11-2205 11

five seconds of the pilots’ order, Flight 2745 encountered

severe turbulence for approximately fifteen seconds.

Ms. LeGrande, who presumably had not had time to

secure herself in a seat, was injured and rendered uncon-

scious during the episode. Flight 2745 provided the

air traffic controller with a PIREP describing severe

turbulence at 9:58 p.m. Several physicians aboard Flight

2745 cared for Ms. LeGrande until the aircraft landed

at Chicago Midway International Airport.

C.

On September 20, 2007, Ms. LeGrande filed an adminis-

trative “Claim for Damage, Injury, or Death” with the

FAA. She sought $25 million for her turbulence-related

injuries. In her claim, Ms. LeGrande alleged that “[t]he

United States of America, through the Federal Aviation

Administration, its employees, agents and representatives,

were negligent in that they breached their duties under

the rules and regulations governing the performance

of their job duties.” R.45-2 at 4. The FAA denied the claim.

Ms. LeGrande then filed this FTCA action against the

United States. She alleged that FAA personnel had

failed to advise the captain of Flight 2745 of two PIREPs of

severe turbulence in the area. After it was determined

that one of the two PIREPs in her complaint was the

9:58 p.m. broadcast from Flight 2745 itself, Ms. LeGrande

filed an amended complaint. In that pleading,

Ms. LeGrande alleged, in relevant part, that

the [FAA] and the air traffic supervisors, control-

lers and other FAA personnel handling SWA Flight

12 No. 11-2205

2745 within the airspace boundaries of the Cleve-

land Air Traffic Control Center were aware of

pilot reports, weather reports and forecasts and

other weather[-]related products generated and

issued by the Cleveland Center Weather Service

Unit meteorologist respecting severe clear air

turbulence reported and/or forecasted to exist in

and/or within close proximity to the flight path

and chosen altitude of flight SWA 2745, including

its flight path through the airspace boundaries

of the Cleveland Air Traffic Control Center’s

jurisdiction.

...

[T]he United States of America, individually

and/or through the FAA, its employees, agents and

representatives, breached the duty owed to the

Plaintiff by failing to provide the pilot of SWA

Flight 2745 with the aforementioned known,

existing, pertinent pilot reports, weather reports,

advisories and impact statements and forecasts

issued by the meteorologist in the Center Weather

Service Unit at Cleveland Center respecting se-

vere clear air turbulence existing in and near the

flight path and chosen altitude of SWA Flight 2745.

R.45 at 2-3.

Following discovery, Ms. LeGrande and the Govern-

ment filed cross-motions for summary judgment.

Ms. LeGrande provided more detail about her claims in

her summary judgment filings. She asserted that the

three weather products issued by NWS meteorologist

No. 11-2205 13

Janus—MIS 02, MIS 03 and the CWA 6 —had alerted FAA

personnel at the Cleveland Center of severe turbulence

in the airspace through which they knew Flight 2745

would be flying. The Government contested the

existence of a duty, the allegation that FAA personnel

breached any duty and causation.

The district court concluded that the United States,

through the FAA, owes a duty of reasonable care to an

aircraft, passengers, crews and cargoes in the performance

of air traffic control responsibilities and that this duty

includes warning pilots of certain weather conditions.

Nevertheless, the district court determined that the

FAA had not breached that duty here. Specifically, the

district court concluded that the duty owed by air

traffic controllers does not include an obligation to dis-

seminate MIS notifications to pilots because such

weather products are designed for traffic planning pur-

poses rather than for providing immediate navigational

guidance to aircraft already aloft. The court further de-

termined that the CWA issued before the departure of

Flight 2745 was not pertinent because it was limited to

airspace east of Cleveland through which Flight 2745,

heading west from Cleveland to Chicago, did not travel.

The district court similarly concluded that the pilot

reports on which Ms. LeGrande relied were not pertinent

6

Although she mentioned PIREPs in her Amended Complaint

and her Memorandum in Support of Summary Judgment,

Ms. LeGrande later conceded that there were no PIREPs

pertinent to Flight 2745. R.70 at 6.

14 No. 11-2205

to Flight 2745. Given these circumstances, the district

court concluded, FAA personnel had not breached any

duty owed to Ms. LeGrande by failing to broadcast turbu-

lence warnings to Flight 2745.

II

DISCUSSION

We review a district court’s grant of summary judgment

de novo. See Massey v. United States, 312 F.3d 272, 276

(7th Cir. 2002). Summary judgment is appropriate only

when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). Where the district court is

faced with cross-motions for summary judgment, as in

this case, “we construe all inferences in favor of the

party against whom the motion under consideration is

made.” Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d

355, 359 (7th Cir. 2011) (internal quotation marks omitted).

To survive summary judgment, Ms. LeGrande must

provide facts that, when taken in the light most

favorable to her, establish a genuine issue of material fact

as to whether her injuries resulted from the Government’s

breach of a duty owed to her. She seeks to do so in two

ways: by maintaining that FAA personnel negligently

failed to broadcast turbulence predictions to Flight 2745

and by introducing the argument, not raised before the

district court, that NWS meteorologist Janus was negli-

gent for not providing his turbulence predictions to

FAA personnel. We address each contention in turn.

No. 11-2205 15

A. The Duty of Air Traffic Controllers

1.

The FTCA serves as a limited waiver of the sovereign

immunity of the United States. It therefore opens the

federal government to tort liability “under circumstances

where the United States, if a private person, would be

liable to the claimant in accordance with the law of the

place where the act or omission occurred.” 28 U.S.C.

§ 1346(b).

We agree with the parties that Ohio law governs this

case. See Richards v. United States, 369 U.S. 1, 9-10 (1962).

Because the alleged negligent act or omission occurred

in Ohio, we apply Ohio choice-of-law rules. See Spurgin-

Dienst v. United States, 359 F.3d 451, 455 n.2 (7th Cir. 2004).

Ohio has adopted the Restatement (Second) of the Law

of Conflicts § 146, under which “a presumption is created

that the law of the place of the injury controls unless

another jurisdiction has a more significant relationship

to the lawsuit.” Morgan v. Biro Mfg. Co., 474 N.E.2d 286,

289 (Ohio 1984). At the time Ms. LeGrande was injured,

Flight 2745 was flying in Ohio airspace and was under

the jurisdiction of air traffic controllers based in

Cleveland, Ohio. The parties have not suggested that any

other state has a more significant relationship to the

lawsuit than does Ohio. Therefore, we apply Ohio tort law.

Under Ohio law, it is well settled that the elements

of an ordinary negligence suit between private parties

are (1) the existence of a legal duty, (2) the de-

fendant’s breach of that duty and (3) an injury that is

proximately caused by the defendant’s breach. Wallace v.

16 No. 11-2205

Ohio Dep’t of Commerce, 773 N.E.2d 1018, 1025-26

(Ohio 2002).

2.

The parties agree that the FAA air traffic controllers at

the Cleveland Center had a duty to provide air traffic

control guidance to Flight 2745. What they dispute is the

scope of that duty.7 In Ms. LeGrande’s view, FAA personnel

knew that severe turbulence had been predicted on Flight

2745’s flight path, and the agency therefore breached

its duty to her when the air traffic controllers failed to

warn the captain of the forecaster’s predictions.

As we noted earlier, in analyzing negligence claims

under the FTCA, the courts of appeals are in agree-

ment that state substantive law governs whether the

7

To the extent that Ms. LeGrande may be attempting to

challenge the FAA’s determination as to which weather

products are useful to pilots, we believe that this deter-

mination is a discretionary function that falls within the dis-

cretionary function doctrine, which limits the FTCA’s waiver

of sovereign immunity. See United States v. Gaubert, 499 U.S. 315,

322-25 (1991) (discussing discretionary function doctrine);

Berkovitz v. United States, 486 U.S. 531, 536-37 (1988)

(same); United States v. Varig Airlines, 467 U.S. 797, 814-15 (1984)

(applying the discretionary function doctrine to an FAA

certification process); Collins v. United States, 564 F.3d 833, 838-

39 (7th Cir. 2009) (applying the discretionary function

doctrine to the FAA’s decision not to install radar at a regional

airport).

No. 11-2205 17

defendant owed a duty of care to the plaintiff.8 In the

aviation context, however, the courts often have given

content to the elements of state law by referring to

federal standards. The reasons for this reference to

federal law are twofold. First, exclusive federal jurisdic-

tion over such claims, as a practical matter, has prevented

state courts from developing controlling legal principles

at a sufficient level of specificity.9 More fundamentally,

when the federal employee’s actions are dictated by

federal law and regulations, reference to those sources is

necessary to understand the nature of the employee’s

duties and the limitations on his authority. Accordingly,

it is not surprising that FTCA cases concerning air

traffic controllers have imported standards from the

regulations or the air traffic manuals in determining

the contours of the state-law duty.1 0 Notably, Ohio law

8

See, e.g., Glorvigen v. Cirrus Design Corp., 581 F.3d 737, 743 (8th

Cir. 2009) (holding that Minnesota law governs plaintiff’s

negligence action brought under the FTCA); St. Tammany

Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307,

317 (5th Cir. 2009) (stating that, “[a]s long as state tort law

creates the relevant duty, the FTCA permits suit for viola-

tions of federal statutes and regulations”); Ochran v. United

States, 273 F.3d 1315, 1317 (11th Cir. 2001) (noting that, in a

negligence action, the court would “turn to the law of Florida

to determine whether [the defendant] owed a duty of care”).

9

Glorvigen, 581 F.3d at 743.

10

See id. at 743-44; see also Tinkler v. United States ex rel. F.A.A.,

982 F.2d 1456, 1461 (10th Cir. 1992) (“Mead’s duty arose from

(continued...)

18 No. 11-2205

10

(...continued)

both the dictates of the Flight Services Manual as well as the

reliance pilots place on FSS briefers.”); Moorhead v. Mitsubishi

Aircraft Int’l, Inc., 828 F.2d 278, 282 & nn. 13-14 (5th Cir. 1977)

(relying on the manual to establish a duty of care); Gill v.

United States, 429 F.2d 1072, 1075 (5th Cir. 1970) (same); cf.

Johnson v. Sawyer, 47 F.3d 716, 728-29 (5th Cir. 1995) (en banc)

(holding that violation of a duty created by federal law

would not support an FTCA claim, but noting that the same

violation may constitute a violation of a state-imposed duty

on a “negligence per se concept”); Jackson v. United States, 156

F.3d 230, 234 (1st Cir. 1998) (rejecting, as a matter of West

Virginia law, plaintiff’s negligence per se theory built on

controller’s failure to follow manual, but suggesting that it

could be “some evidence of negligence”). It should be noted

that some of these cases have imported the standards with a

more precise legal analysis than others by specifically ex-

plaining the difference between importing a federal duty and

importing a federal standard of care to define a state-law duty.

But cf. Holbrook v. United States, 673 F.3d 345, 347 (4th Cir. 2012)

(“If select passages from a lengthy and complex order could

serve as the basis for government tort liability, the FAA

would be hobbled by the specter of litigation as it worked to

promote aircraft safety. The price of circulating internal guid-

ance should not be an exponential increase in exposure to a

tort suit.”).

It is worth noting that this approach to defining state-law

duties by reference to federal sources is not unique to the

aviation context. See Parrott v. United States, 536 F.3d 629, 637

(7th Cir. 2008) (noting that, under Supreme Court cases, federal

statutes provided a duty of care owed to federal inmates, but

(continued...)

No. 11-2205 19

appears to recognize the necessity of referring to federal

legal principles in such a situation. See Salisbury v. Gordon

Air Mgmt. Corp., No. 19085, 2000 WL 92087, at *5 (Ohio Ct.

App. Jan. 19, 2000);1 1 see also Freeman v. United States, 509

10

(...continued)

also that, “[t]o the extent that the FTCA requires us to assess

the Government’s duty under Indiana law, . . . there is no

hint that Indiana law would differ on this point”); see also Bolt

v. United States, 509 F.3d 1028, 1031-32 (9th Cir. 2007) (reit-

erating that a federal rule, such as the Army rules for snow

removal, can determine standard of care in exercising state

law duty); Medina v. United States, 259 F.3d 220, 223 (4th Cir.

2001) (in case involving immigration detention of foreign

diplomat, noting that the FTCA “serves to convey jurisdiction

when the alleged breach of duty is tortious under state law, or

when the Government has breached a duty under federal law that

is analogous to a duty of care recognized by state law” (emphasis

added) (internal quotation marks omitted)).

11

In Salisbury v. Gordon Air Mgmt. Corp., No. 19085, 2000 WL

92087 (Ohio Ct. App. Jan. 19, 2000), a pilot was sued following

a crash for failure to abide by an FAA regulation concerning

when an aircraft may fly into “known or forecast moderate

icing conditions.” Id. at *4. Relying in part upon “persuasive

authority on the federal level,” the Court of Appeals of Ohio

concluded that “the regulations do establish the standard of

care of a reasonable pilot in [Ohio].” Id. The court noted both

that “the federal air regulations have been adopted by the

State of Ohio as its own,” citing Ohio Revised Code § 4561.05,

and that cases from both the Third and the Ninth Circuits

suggested that the adoption of the federal regulations as

(continued...)

20 No. 11-2205

F.2d 626, 629 (6th Cir. 1975) (applying FAA regulations

to establish the standard of care controllers owe para-

chutists in FTCA case governed by Ohio law). Indeed, Ohio

has adopted federal air regulations as its own. Ohio

Rev. Code §§ 4561.05, 4561.14. As Judge McCree wrote

in Freeman, therefore, “violation of a federal air regula-

tion constitutes a violation of Ohio law.” 509 F.2d at 630.

Ms. LeGrande, who bears the burden of proof, has

pointed to no statute, regulation or other directive that

imposes on FAA traffic controllers the responsibility to

transmit MIS weather products to pilots. Indeed, a

review of the governing directives makes clear that no

such obligation exists. At the time Ms. LeGrande was

injured, FAA Job Order 7110.65P prescribed air traffic

control procedures regarding, among other things, the

dissemination of weather-related information to pilots.1 2

The Job Order states, in relevant part:

Controllers shall advise pilots of hazardous

weather that may impact operations within 150

[nautical miles] of their sector or area of jurisdic-

tion. Hazardous weather information contained

11

(...continued)

the standard of care or as evidence thereof is the norm. Id. at *5.

The court found this sufficient to establish ordinary negligence

in that case and, therefore, did not consider whether, because

it involved a violation of a safety statute designed to prevent

the harm at hand, it amounted to negligence per se. Id.

12

These regulations have since been revised and can be found

in substantially the same form at FAA Job Order 7110.65T.

No. 11-2205 21

in HIWAS broadcasts includes Airmen’s Meteo-

rological Information (AIRMET), Significant Mete-

orological Information (SIGMET), Convective

SIGMET (WST), Urgent Pilot Weather Reports

(UUA), and Center Weather Advisories (CWA).

FAA Job Order 7110.65P § 2-6-2. Indeed, Ms. LeGrande’s

expert, when asked whether air traffic controllers were

“permitted to broadcast a HIWAS alert for an MIS,”

answered by saying, “Not that I know of.” R.60-6 at 12

(Burgess Dep. 203).

Ms. LeGrande contends, in essence, that the first sen-

tence of FAA Job Order 7110.65P § 2-6-2—“Controllers

shall advise pilots of hazardous weather that may

impact operations within 150 [nautical miles] of their

sector or area of jurisdiction”—operates independently

from the remainder of that subsection, which, in

her view, details how air traffic controllers must ad-

vise pilots of hazardous weather. We believe that

Ms. LeGrande’s textual interpretation of the job order is a

strained one that, when read in the context of the rest of

the directive, would produce a decidedly unrealistic result.

First, it is important to note, at the outset, that, under

the procedure mandated by the job order, air traffic

controllers in HIWAS areas, including the airspace con-

trolled by the Cleveland Center, are not directed to broad-

cast detailed in-flight weather advisories. Instead, as a

general rule, the controllers read the limited information

on a General Information Strip to inform pilots that an

advisory has been published and then instruct pilots

to turn to the HIWAS broadcast on another radio

22 No. 11-2205

frequency for more detailed information. The FAA

Job Order directs controllers to use the following phraseo-

logy: “ATTENTION ALL AIRCRAFT. HAZARDOUS

WEATHER INFORMATION [type and number of

weather product issued] FOR (geographical area) AVAIL-

ABLE ON HIWAS, FLIGHT WATCH, OR FLIGHT SER-

VICE FREQUENCIES.” FAA Job Order 7110.65P § 2-6-2

(noting that the inclusion of the type and number of

weather advisory responsible for the HIWAS advisory is

optional). Notably, even on the HIWAS frequency,1 3

which is dedicated to weather conditions that are of

immediate interest to pilots of aircraft currently in

flight, MIS weather products are not broadcast because

they are not immediately pertinent to aviators aloft.

We also cannot accept the suggestion that the FAA Job

Order imposes on air traffic controllers a duty to

broadcast information about predicted turbulence regard-

less of the weather product in which that prediction is included.

It is true that the first sentence of FAA Job Order 7110.65P

§ 2-6-2 instructs air traffic controllers to “advise pilots of

hazardous weather that may impact operations within

150 [nautical miles] of their sector or area of jurisdiction.”

It is also true that the FAA Pilot/Controller Glossary

defines “Hazardous Weather Information” as informa-

13

These products also are not available on Flight Watch or

Flight Service frequencies relied upon by aviators traversing

areas not covered by a HIWAS service.

No. 11-2205 23

tion contained in various listed weather products 1 4 and

“any other weather . . . which is considered significant

and [is] not included in a current hazardous weather

advisory.” To determine the significance of weather

conditions, we receive some help from another section

of FAA Job Order 7110.65P, which charges the controller

to be prepared to suggest alternate routes and altitudes

in “areas of significant weather,” notes that “[w]eather

significant to the safety of aircraft includes such condi-

tions as . . . moderate to extreme turbulence (including

[clear air turbulence]).” FAA Job Order 7110.65P § 2-6-4(b)

note.

Even if we read these provisions to suggest that there

may be occasions when an air traffic controller is obliged

to alert aloft aircraft to a weather condition such as turbu-

lence when that condition is not included in a current

advisory, we do not think that it is plausible to read these

documents to require that the controller advise the pilot

of the content of an MIS. The relevant Job Order provi-

sions clearly apply to current specific weather conditions of

sufficient severity to impede the aircraft’s flight. As we

have noted earlier, the FAA has categorized weather

14

According to the FAA Pilot/Controller Glossary, Hazardous

Weather Information includes information contained in urgent

PIREPs and CWAs as well as weather products known as

SIGMETs, convective SIGMETs, and AIRMETs. None of

those weather products are implicated in this case. Notably,

the list of weather products that the glossary uses to define

Hazardous Weather Information does not include the

weather product at issue in this case—an MIS.

24 No. 11-2205

products into those that are disseminated to pilots, such as

a CWA, and those that are not, such as an MIS, precisely

to ensure that pilots receive useful information without

being distracted by forecasts of no practical significance.

The pilot of an aircraft, alert for immediate meteorological

dangers, simply would not profit from—or want to be

distracted by—the information contained in an MIS.

Here, MIS 02 and MIS 03 pertained to a 10,000- to 15,000-

foot high block of airspace above parts of four

states—Michigan, Ohio, Pennsylvania and New

York—over a period of some twenty hours.1 5 Even taking

all the facts in the light most favorable to Ms. LeGrande,

the general forecast of frequent moderate turbulence to

isolated severe turbulence in such a massive area and

for such a lengthy period of time, while useful to the

FAA for flight planning purposes, was far too indefinite

to be of assistance to pilots.

Therefore, not only has Ms. LeGrande failed in carrying

her burden of proof, but the governing regulations and

job orders make clear that the district court was correct

in determining that FAA air traffic controllers have no

duty to advise pilots of the content of MIS weather prod-

ucts. FAA personnel in this case therefore had no duty

to disseminate the turbulence predictions contained in

15

MIS 02 was issued at 2:42 p.m. About eight and a half hours

later, MIS 03 was issued at 9:06 p.m. In total, the prediction

encapsulated in MIS 02 and MIS 03 lasted from 2:42 p.m.

until 9:06 a.m. the following morning, a total of over

twenty hours.

No. 11-2205 25

either MIS 02 or MIS 03 to Flight 2745. Nor did air

traffic controllers have any duty to broadcast the CWA

to Flight 2745; it was limited to airspace that Flight

2745 would not traverse on its path from Cleveland to

Chicago.16

16

In further support of her contention that air traffic controllers

should have broadcast the turbulence predictions from MIS 02

and MIS 03, Ms. LeGrande invites our attention to United

States Aviation Underwriters, Inc. v. United States, 562 F.3d 1297,

1299 (11th Cir. 2009), in which the Court of Appeals for the

Eleventh Circuit stated in the course of its decision: “The

United States concedes that, once the National Weather Service

forecasts moderate to severe turbulence, the United States

government has no discretion to decline to provide that infor-

mation to pilots.” The Government’s concession in Aviation

Underwriters was limited to the duty of an NWS Meteorological

Watch Office to disseminate, per NWS procedures, a weather

product known as a SIGMET. There is no SIGMET implicated

in this case, which revolves instead around an MIS, an

entirely different weather product. Additionally, the FAA

personnel Ms. LeGrande accuses of negligence in this suit

are not governed by NWS directives. The governmental conces-

sion on which Ms. LeGrande relies is therefore inapposite to this

case.

Ms. LeGrande also relies on Spurgin-Dienst v. United States, 359

F.3d 451, 455 (7th Cir. 2004), in which we suggested that an

air traffic controller erred by, among other things, not pro-

viding a pilot with an MIS about icing conditions. The

statement in Spurgin-Dienst on which Ms. LeGrande relies is

dicta. At the core of that decision was our holding addressing

the actions of FAA personnel; we held that the district court

(continued...)

26 No. 11-2205

B. Negligence by NWS Meteorologist Janus

In this appeal, Ms. LeGrande raises, for the first time in

this litigation, the allegation that NWS meteorologist

Janus negligently failed to provide his turbulence predic-

tions to FAA personnel for dissemination to pilots. This

is a new tack, which goes beyond the allegation of negli-

gence by FAA employees that Ms. LeGrande raised in

her administrative claim and in her pleadings in the

district court. See R.45-2 at 4 (Administrative Complaint);

R.1 at 3 (Complaint); R.45 at 2-3 (Amended Complaint).

The FTCA contains a threshold requirement that an

administrative claim be “presented in writing to the

appropriate federal agency.” 28 U.S.C. § 2401(b). Indeed,

no lawsuit may be filed “unless the claimant shall have

first presented the claim to the appropriate Federal

agency.” 28 U.S.C. § 2675. The Supreme Court has held

that this requirement is jurisdictional and not subject to

waiver. McNeil v. United States, 508 U.S. 106, 112-13 (1993).

The allegations in an administrative claim are only suffi-

cient if they put the “legally sophisticated reader” on

notice of a connection between the alleged injury and

16

(...continued)

had not clearly erred when it found that the information

withheld from the pilot “would not have led [the pilot] to

change course.” Id. We also noted that the “FAA personnel

committed errors,” including the failure to provide the MIS

to the pilot. Id. This statement was made in passing without

significant discussion and, furthermore, was unnecessary to

the outcome in that case.

No. 11-2205 27

the specific conduct that the plaintiff is asserting as a

basis for the claim. Palay v. United States, 349 F.3d 418, 426-

27 (7th Cir. 2003) (holding that an agency is notified

properly of a claim for purposes of the FTCA if the claim

would have been apparent to a “legally sophisticated

reader”). The pertinent regulations require an agency in

receipt of a claim to transfer that claim to another agency

if the activities that gave rise to the claim were activities

of that other agency. 28 C.F.R. § 14.2(b)(1). The regulations

further provide that, if more than one federal agency is

or may be involved in the events that give rise to the

claim, the agency receiving the claim must contact the

other affected agency in order to designate the single

agency that will investigate and decide the merits of

the claim. 28 C.F.R. § 14.2(b)(2).

We have examined the administrative claim filed by

Ms. LeGrande. It alleges six claims of negligence against

the FAA; each claim pointedly alleges a breach of an FAA

Job Order. It alleges no claim of negligence against the

NWS. In the box for the entry of the “Appropriate

Federal Agency” to which the claim is directed, only the

FAA is mentioned. In short, the administrative claim is

clear; only the FAA’s actions are alleged to have been

negligent. Under these circumstances, no provision of 28

C.F.R. § 14.2 required the FAA to transfer the claim to

the NWS, to notify the NWS of the claim or to determine

which agency would undertake the investigation and

adjudication of the claim. The very specific allegations

of the claim allege negligence on behalf of the FAA and

no other federal agency.

28 No. 11-2205

As the Supreme Court noted in McNeil, the statutory

threshold requirement of filing an administrative claim

with the appropriate agency is clear and cannot be charac-

terized as a “trap for the unwary.” 508 U.S. at 113. Be-

cause Ms. LeGrande failed to comply with that admin-

istrative requirement, her new allegations are barred

by the plain language of the statute.

Conclusion

The district court correctly determined that

Ms. LeGrande had failed to establish that FAA personnel

breached any duty owed to her. Additionally, the allega-

tions of the NWS meteorologist’s negligence are barred

for failure to comply with the statutory requirement

that suit under the Federal Tort Claims Act be preceded

by an administrative complaint. Accordingly, the judg-

ment of the district court is affirmed.

A FFIRMED

7-18-12