Petition for Writ of Certiorari — Midwest Air Traffic Control Service, Inc., Petitioner v. Jessica T. Badilla, et al.

APPENDIX

TABLE OF CONTENTS

Appendix A:

Court of appeals opinion,

August 9, 2021 ................................................. 1a

Appendix B:

District court opinion,

January 14, 2020 ........................................... 49a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 20-608-cv

JESSICA T. BADILLA, CONSORCIA A. CASTILLO,

AND ACEA M. MOSEY, ERIE COUNTY PUBLIC

ADMINISTRATOR, AS CO-ADMINISTRATORS OF

THE ESTATE OF BERNARDO G. CASTILLO, DECEASED, JOSEPHINE R. ELBANBUENA, AND

ACEA M. MOSEY, ERIE COUNTY PUBLIC ADMINISTRATOR, AS CO-ADMINISTRATORS OF THE ESTATE OF WILO M. ELBANBUENA, MICHELLE S.

MEDINA, AND ACEA M. MOSEY, ERIE COUNTY

PUBLIC ADMINISTRATOR, AS CO-ADMINISTRATORS OF THE ESTATE OF NILO T. MEDINA, DECEASED, NELA A. PADURA, AND ACEA M. MOSEY, ERIE COUNTY PUBLIC ADMINISTRATOR,

AS CO-ADMINISTRATORS OF THE ESTATE OF

EDUARDO P. PADURA, DECEASED, INGRID S.

BULOS, AND ACEA M. MOSEY, ERIE COUNTY

PUBLIC ADMINISTRATOR, AS CO-ADMINISTRATORS OF THE ESTATE OF HENRY BELTRAN BULOS, DECEASED, ACEA M. MOSEY, ERIE

COUNTY PUBLIC ADMINISTRATOR, AS CO-ADMINISTRATORS OF THE ESTATE OF RENE BADILLA, DECEASED,

Plaintiffs-Appellants,

v.

(1a)

2a

MIDWEST AIR TRAFFIC CONTROL SERVICE,

INC., A KANSAS CORPORATION

Defendant-Appellee.

Filed: August 9, 2021

Before: SACK, CHIN, and LOHIER, Circuit Judges.

OPINION

SACK and LOHIER, Circuit Judges.

In October 2010, a civilian flight (“Flight 662”) crashed

into a mountain near Kabul Afghanistan International

Airport (“KAIA”), killing all on board. The estates of the

crew members and pilots of Flight 662 brought state-law

wrongful death claims against Midwest Air Traffic Control Service, Inc. (“Midwest”) and others, alleging in relevant part that a Midwest air traffic controller had negligently provided instructions to Flight 662’s pilot that put

the flight on a collision course with mountainous terrain

surrounding KAIA.

Following discovery, the District Court (Frank P.

Geraci, Chief Judge) granted Midwest’s motion for summary judgment on the grounds that (1) the Plaintiffs-Appellants’ claims against Midwest, a military contractor,

were preempted by the combatant activities exception to

the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§§ 1346(b), 2671 et seq.; and (2) Midwest neither had a

duty to provide “terrain separation” for the flight nor

proximately caused the accident. For the reasons set forth

below, we VACATE the District Court’s judgment and

3a

REMAND for further proceedings consistent with this

opinion.

BACKGROUND1

I.

In October 2010, Midwest provided air traffic control

services at KAIA, which had been designated as a civilian

airport. Both KAIA and its air traffic control tower belonged to the Ministry of Transportation and Civil Aviation of the Islamic Republic of Afghanistan. At the time,

the air traffic flying into and out of KAIA consisted of a

“mix” of civilian, combat, and combat-support operations.

Insurgents regularly attacked the airport.

Although the airport and control tower belonged to Afghanistan, the North Atlantic Treaty Organization

(“NATO”) supervised the tower, largely for the purpose

of training Afghan civilians as tower controllers. The Afghan and NATO controllers primarily trained and operated the tower during the day. Midwest personnel took

over the tower’s air traffic control operations at night and

were not responsible for training the Afghan civilian controllers.

The KAIA air traffic control tower was equipped with

a radar presentation that was used as a visual aid for the

purpose of sequencing aircraft. However, the KAIA tower

lacked equipment that would alert an air traffic controller

to an aircraft’s proximity to terrain, such as the mountains

that surround the airport.

We have construed the facts in the light most favorable to the

Plaintiffs-Appellants and resolved all ambiguities and drawn all reasonable inferences in their favor. See Delaney v. Bank of Am. Corp.,

766 F.3d 163, 167 (2d Cir. 2014).

1

4a

Midwest operated at KAIA as an approved subcontractor for a prime contract with the U.S. military. The

prime contract obligated Midwest to “provide all personnel, supervision, logistics support, and other items necessary to perform [air traffic control] services as defined in

this [statement of work].” App’x 1946. The contract further required that “[a]ll work performed by the Contractor in support of this [statement of work] shall be in accordance with applicable Federal Aviation Administration

(FAA) or International Civil Aviation Organization

(ICAO) standards and Department of Defense (DoD) regulations as applicable.” App’x 1946.2

Midwest’s tower controllers at KAIA reported to the

senior air traffic control officer and his deputy, both of

whom were United States Air Force officers. For example, in September 2010, after a Midwest employee raised

a staffing issue with his employer rather than with the

military officers responsible for the tower’s operations,

the senior air traffic control officer emailed the chief executive of Midwest stating: “Please advise all [Midwest]

tower controllers on the ground here at KAIA that [although] personnel . . . issues [may be directed to a Midwest

manager], ALL operational issues WILL BE DIRECTED to/through myself or [the deputy] first.” App’x

268. In response, Midwest’s chief executive confirmed

that, while Midwest controllers needed to advise their

The contract also designated “the services provided by the contractor” as an “essential contract service” and designated “contractor

personnel” as “mission essential personnel.” App’x 1946. This language requires contractors “to submit [to the Department of Defense] their plans to ensure continuation” of their services in “a broad

range of emergencies and crises.” Defense Federal Acquisition Regulation Supplement (DFARS); Continuation of Essential Contractor

Services (DFARS Case 2009-D017), 75 Fed. Reg. 66,680, 66,681 (Oct.

29, 2010); see 48 C.F.R. §§ 237.7602, 252.237-7023(c).

2

5a

Midwest supervisors about all issues that arose, the controllers had been instructed to direct all operational issues

to the senior air traffic control officer and that there was

no question that the senior officer was “in charge at the

tower.” App’x 266.

Midwest personnel directed air traffic around KAIA

pursuant to a hierarchy of rules and regulations. Documents or instructions issued by the senior air traffic control officer or his deputy controlled. In the absence of such

guidance, the local operating procedures for KAIA applied. If the local operating procedures did not address an

issue, then the standard operating procedures for KAIA

applied. If the standard operating procedures were silent,

then the Afghanistan Aeronautical Information Publication (“AIP”) applied. And, finally, if a procedure was not

covered by the AIP, then the ICAO standards for air traffic management applied. App’x 999-1000.

The standard operating procedures provided that

KAIA air traffic controllers were “responsible for providing safe, orderly and expeditious control to all aircraft operating” in KAIA-controlled airspace. App’x 1364. The

AIP classified the area within 6 nautical miles surrounding KAIA and up to 9,500 feet above sea level as “Class

D” airspace for which the KAIA control tower was responsible. The AIP further provided that the “[u]ltimate

responsibility for aircraft and terrain avoidance rests with

the pilot in command.” App’x 1458. The ICAO similarly

provided that, for flights conducted in accordance with

visual flight rules, “[t]he objectives of the air traffic control service . . . do not include prevention of collision with

terrain.” App’x 1688.

6a

II.

On October 12, 2010, after sunset at about 14:50 UTC

or 7:20 p.m. local Afghanistan time, Transafrik International Flight 662 departed the U.S. Bagram Air Base,

some thirty miles north of Kabul, Afghanistan, for KAIA,

located just north of Kabul city. The plane was a Lockheed model L-100 cargo aircraft, registered to Transafrik

in Uganda and leased to National Air Cargo (“NAC”), an

American airline that flies chartered cargo planes. As was

typical for Transafrik-NAC cargo flights, there were

eight people on board, including the six plaintiffs-decedents: the pilot, Captain Henry Bulos; the co- pilot, former Philippines air force general Rene Badilla; and crew

members Bernardo Castillo, Wilo Elbanbuena, Nilo Medina, and Eduardo Padura—all of whom were Transafrik

employees and residents of the Philippines.

The crew had already flown on that plane several

times that day; the Bagram-to-KAIA flight was the last

sortie scheduled for the day, with the crew and plane—

likely empty of cargo—returning to their base of operations in Kabul. However, the plane had problems with

some of its avionics equipment, according to an email that

another Transafrik pilot, Michael Terrell, had sent three

days earlier to others at Transafrik, including Captain

Bulos. Terrell described the terrain avoidance warning

system as inoperable. Normally, the terrain avoidance

warning system would display a topographic map and indicate the plane’s position relative to the surrounding terrain, with the map showing red when the plane was at a

dangerous relative elevation. This plane’s terrain avoidance warning system did not present such a display. The

plane also lacked or had an inoperable ground proximity

warning system, which, when working, sounds an alarm

7a

to alert the cockpit that the plane is in dangerous proximity to an obstacle. Terrell’s email also reported that the

traffic collision avoidance system, designed to help the

plane avoid collisions with other aircraft, worked only sporadically. There is no evidence that Transafrik resolved

any of these issues in the days following Terrell’s email; it

appears to have been the airline’s practice to keep a plane

in operation until new parts could be installed. There is

also no evidence that Midwest personnel, including those

working in the control tower on the evening in question,

were aware of any of these issues with the plane’s avionics.

Kabul, KAIA, and the Bagram Air Base are located in

a mountainous region in or near the Hindu Kush mountain

range. Bagram’s elevation is about 4,860 feet above sea

level while KAIA, to its south, is some two thousand feet

higher. Kabul has been described as lying within the

“bowl” of its surrounding mountains. Gregory Scott Adams Dep. at 83, App’x 519.

While the city itself may be well-lit at night, the nearby

mountains “are all jet black.” Michael Terrell Dep. at 105,

App’x 726. As one witness described the terrain:

Most of the world, there would be lights all over the

place, even on mountains generally. Not a lot, but

some. The mountains around Kabul had zip, nothing.

Any time you're above, maybe a thousand feet above,

the valley floor was pitch black. There were no roads,

no cars, no houses, no power lights, no any kind of

lights up there.

Id. at 60, App’x 681. Most of this terrain was also outside

of the Class D airspace that was within the “control,” or

responsibility, of the KAIA control tower.

8a

A flight between Bagram and KAIA with an L-100 aircraft ordinarily takes only about 10 minutes if flown according to visual flight rules (“VFR”) or 30 minutes under

instrument flight rules (“IFR”). When flying under VFR,

the pilot is responsible for seeing and avoiding obstacles,

such as other aircraft and terrain. The minimum ground

visibility for VFR at KAIA was 5,000 meters. The VFR

pilot must ensure that he or she can see obstacles outside

the plane’s windows by, for example, steering clear of

clouds. The KAIA standard operating procedures, ICAO

standards, and AIP all stated, one way or another, that

pilots operating under VFR are responsible for their aircraft’s terrain and obstacle avoidance. IFR, by contrast,

requires the pilot to rely on air traffic control for obstacle

avoidance. As the Kabul tower’s deputy senior air traffic

control officer explained: “Under IFR . . . an aircraft is

obligated to talk to air traffic control. They’re obligated to

follow our directions unless an emergency situation exists.

And air traffic control provides the separation services for

the aircraft. And . . . that [] allows the aircraft to fly

through instrument meteorological conditions,” such as

clouds. Scott Stevenson Dep. at 23, App’x 565. IFR flights

into Kabul take longer than VFR flights because the plane

must reach an altitude and distance from the airport that

allows the plane to show up clearly on radar. As do many

airport air traffic controls, KAIA’s air traffic control preferred pilots to fly VFR to ease its burden of handling

traffic. It was nonetheless the pilot’s choice whether to fly

VFR or IFR.

Captain Bulos chose to operate Flight 662 according

to VFR. Although the flight left Bagram around 7:20 p.m.

local time—after sunset—Captain Bulos was permitted to

use VFR. Flight 662 had to arrive in Kabul at night because Boeing 747s, which were used to transport Afghans

9a

to Saudi Arabia for the Hajj, had been parked on Transafrik’s ramp at the airport earlier that evening. A former

Transafrik pilot explained that “the airport authority

would not let us land until all the Hajj birds were gone and

we had space.” Michael Terrell Dep. at 58, App’x 679.

The parties agree that KAIA’s minimum visibility of

5,000 meters was satisfied that evening, although there

was some haze in the area with temporary visibility of

4,000 meters. The National Transportation Safety Board

(“NTSB”) indicated that the moon would have provided

“limited additional light” and that “[i]t is difficult to determine how much illumination the stars provided due to the

haze.” National Transportation Safety Board Office of Research and Engineering Aircraft Performance Study (the

“NTSB Study”), July 31, 2012, at 12, App’x 1882.

Shortly after takeoff from Bagram Air Base, Flight

662 contacted Bagram Approach Control, which controls

traffic departing from and arriving at Bagram. Bagram

Approach instructed Flight 662 to maintain VFR and continue on its “own navigation to Kabul.” App’x 1917.

Bagram Approach then informed Kabul Tower (a separate facility) that Flight 662 was headed to KAIA.

The flight continued to ascend for about five minutes,

reaching its maximum altitude of 11,778 feet above mean

sea level (“MSL”), which, because of the mountainous surroundings, was about seven thousand feet above ground

level. The aircraft remained at this altitude for a few

minutes as it flew at a near 180-degree (due south) heading, toward KAIA and Kabul.

10a

About eight minutes into the flight, Flight 662, still flying south, began to descend; it made its first contact with

Kabul Tower: 3

7:28:02 P.M.

TKU662

“Tower. TKU uh 662”

7:28:05

Tower

“TKU662”

NTSB Study at 14-16, Table 1, App’x 1884. The local controller with whom Flight 662 communicated was one Darrell Smith, a Midwest employee and retired U.S. Air

Force master sergeant. All of the other persons in the

tower at that time were also Midwest employees.

Flight 662’s Captain Bulos then reported the aircraft’s

location relative to the airfield traffic pattern and runway,

and Smith cleared the flight to land on runway 29, which

has a 290-degree compass bearing (i.e., the plane would

land to the west-north-west).

7:28:08 P.M.

TKU662

“Roger sir, seven

miles to join right

downwind for two

nine”

7:28:17

Tower

“TKU662 roger,

report a five mile final

for two nine please”

7:28:22

TKU662

“Five mile final for

two nine for TKU662”

7:28:50

Tower

“TKU662 check

wheels down, wind

zero nine zero at four

The first column of the following verbatim quotations of communications among Flight 662, the KAIA tower, and other aircraft,

shows the time; the second column identifies the sender; and the third

column contains the contents of the communications. Quotations are

from Table 1 of the NTSB Study at 14-16, App’x 1884-86.

3

11a

knots, cleared to land

[at] runway two nine”

NTSB Study at 14, App’x 1884. At an altitude of about ten

thousand feet MSL, Flight 662 turned from its nearly 180degree bearing to a 140-degree, or south-south-east, direction to take the plane on its “downwind leg” in which it

would travel north of the runway but in the opposite direction of its intended landing on the runway, before making, in effect, a U-turn into the final approach. See NTSB

Study at 12, Figure 10, App’x 1882 (reproduced below).

Unbeknownst to Captain Bulos, however, the tower’s

radar display was not working at the time that Smith

cleared Flight 662 to land. Nor was Smith able to see the

plane out of the tower’s window. The radar display, although it turned on moments later, did not, and would not

in any event be expected to, show Flight 662’s altitude,

any minimum safe altitude for the plane, or other indications of the plane’s proximity to the terrain. Smith was

also unaware of the specific altitude of the terrain surrounding Kabul.

Less than a minute after clearing Flight 662 to land,

Smith was contacted by Ariana Afghan Airlines Flight

2748, a civilian IFR flight coming into Kabul from the

southeast. Smith told Ariana 2748 that it is “number two

to follow” Flight 662 into “runway two niner.” NTSB

Study at 14, App’x 1884. However, Ariana 2748 responded

12a

that it was on a “straight in approach . . . distance [] now

one six [sixteen miles] to touchdown.” Id.

Now aware of the relative positions of the planes and

concerned that Ariana 2748 might overtake Flight 662 because of the former’s straight path to the runway and

faster speed, Smith decided to switch the order in which

the planes would land. As noted, Flight 662 was headed

southeast, toward a point east of the east end of the runway where it would eventually turn almost 180 degrees to

land westbound.

Just after 7:30 p.m., Smith asked Captain Bulos to extend Flight 662’s downwind leg (i.e., continue flying east)

and cancelled its landing clearance:

7:30:16 P.M.

Tower

“TKU662 can you

extend your downwind

sir?”

7:30:23

TKU662

“Uh. copy all extend

on downwind

TKU662”

7:30:29

Tower

“Roger. landing

clearance cancelled,

make a left turn,

13a

report established on

your downwind. you’re

number two to follow

an Airbus three one

zero [Ariana 2748] at

about a one zero mile

final for two nine”

7:30:38

TKU662

“Roger, number two

for TKU662”

7:30:39

Tower

“Thank [y]ou”

Id. Captain Bulos then turned Flight 662, which had continued to descend to about eight thousand feet MSL, from

its 140-degree heading to a 116-degree, or east-southeast, heading. Although Smith had asked Flight 662 to extend its downwind leg, the aircraft was not at that time in

the Class D airspace that was the tower’s zone of control.

Smith then attended to the departure of another

flight, Pamir Airlines Flight 305. After Pamir 305 was

cleared for takeoff, Smith cleared Ariana 2748 to land.

Smith then spoke to Captain Bulos for the final time:

7:31:47 P.M.

Tower

“TKU 662, continue

downwind. I’ll call

your base. Traffic

you’re following [i.e.,

Ariana 2748] is abeam

[you] now [i.e.,

directly on TKU662’s

right]”

7:31:53

TKU662

“We have it in sight,

TKU662 extend the

downwind”

14a

NTSB Study at 15, App’x 1885 (emphasis added). “I’ll call

your base” meant that Smith would tell Bulos when to

turn the aircraft to its “base leg,” i.e., the plane would turn

right and briefly fly perpendicular to the runway, before

turning right again into its final leg for landing.4

Air traffic control soon lost contact with Flight 662.

Smith then saw a fireball from his position in the tower.

7:32:07 P.M.

Tower

“TKU662 tower, you

up?”

7:32:14

Tower

“TKU662 Tower”

7:32:50

Tower

“And uh Ariana2748

do you see the smoke

off to your right sir?”

7:32:58

Tower

“Ariana2748 tower”

7:33:00

Ariana2748

“Tower go ahead”

7:33:02

Tower

“Roger, did you copy

the smoke off to your

right . . . ?”

7:33:05

Ariana2748

“Negative”

7:33:23

Tower

“TKU662 Tower. how

do you hear?”

7:33:35

Tower

“TKU662, ah Kabul

tower two on Guard,

how do you hear me?”

...

Midwest contends that the statement “I’ll call your base” did not

mean that Flight 662 could only turn when Smith said so. The meaning of the statement is a factual issue, however, and we therefore accept the Plaintiffs-Appellants’ meaning for purposes of reviewing the

grant of summary judgment.

4

15a

7:33:46

Tower

“TKU662, Kabul

Approach, how do you

hear?”

7:33:52

Tower

“I mean Kabul Tower,

how do you hear?”

7:34:05

Tower

“TKU662 Kabul

Approach how do you

hear?”

7:34:52

Tower

“TKU662 Kabul

Approach how do you

hear?”

Id.

Having continued flying at the 116-degree heading it

took after Smith asked Bulos to extend its downwind leg,

Flight 662 crashed into mountain terrain ten to twelve

miles east of the airport and at an altitude of 7,874 feet

MSL, killing everyone on board. The cockpit voice recorder and flight data recorder were also destroyed in the

crash.

III.

On October 2, 2012, the Plaintiffs-Appellants, as administrators of the estates of Captain Bulos, co-pilot Badilla, and crew members Castillo, Elbanbuena, Medina,

and Padura, filed a complaint in New York Supreme

Court, County of Erie, asserting negligence claims

against Midwest, NAC, and Transafrik. The PlaintiffsAppellants claimed that NAC and Transafrik: (1) negligently procured, provided, and dispatched an aircraft

“that was not in an airworthy or safe condition” because

of issues such as the inoperative terrain avoidance warning system and traffic collision avoidance system; (2) negligently “failed to require and/or provide specific training

16a

to the flight crew . . . relative to the operating environment, unsafe conditions, and dangers to be reasonably anticipated during approaches into Kabul”; (3) negligently

“failed to require and/or provide proper and adequate

navigational aids”; and (4) negligently “failed to ensure

proper and safe crew pairing for the intended flight.”

Compl. at 8-9, App’x 139-40. The Plaintiffs-Appellants

claimed that Midwest gave a negligent instruction to

Flight 662, negligently failed to provide a minimum safe

altitude warning to the flight, negligently “failed to provide necessary instruction to keep a safe and proper separation between . . . Flight 662 and the surrounding terrain,” and “otherwise negligently and carelessly failed to

provide proper and safe instructions, warnings, and/or

other air traffic control services to” Flight 662. Compl. at

11-12, App’x 142-43.

The defendants removed the case to the United States

District Court for the Western District of New York, invoking diversity jurisdiction, federal enclave jurisdiction,

and federal officer jurisdiction. Notice of Removal, Badilla v. Nat’l Air Cargo Inc., No. 12-cv-01066-FPG-JJM

(W.D.N.Y. Nov. 12, 2012), ECF No. 5. After the PlaintiffsAppellants moved to remand the case to state court, the

District Court, upon a report and recommendation from

Magistrate Judge Jeremiah J. McCarthy, determined

that while it lacked diversity or federal enclave jurisdiction, it could exercise federal officer jurisdiction because

Midwest personnel working in the Kabul Tower were supervised by a federal officer.

The District Court later granted Transafrik’s unopposed motion to dismiss, see Report & Recommendation,

id., (W.D.N.Y. July 1, 2015), ECF No. 92, and dismissed

the claims against NAC with prejudice pursuant to a stipulation of dismissal agreed to by the Plaintiffs-Appellants

17a

and NAC, see Text Order, id. (W.D.N.Y. Jan. 12, 2017),

ECF No. 154.5 With Midwest as the sole remaining defendant, the case proceeded to discovery on the negligence claims and Midwest’s defense that the claims are

preempted under the government contractor defense, see

Boyle v. United Techs. Corp., 487 U.S. 500 (1988), or the

FTCA’s combatant-activities exception, 28 U.S.C.

§ 2680(j).

After the close of discovery, Midwest moved for summary judgment on the grounds that the claims are

preempted and, alternatively, that it could not be held liable for the crash because a pilot flying under VFR is solely

responsible for separating an aircraft from the terrain. In

a Report and Recommendation issued in April 2017, Magistrate Judge McCarthy recommended that Midwest’s

motion be granted, agreeing with the Defendant-Appellee

that the claims are preempted and that Midwest neither

owed a duty of care to Flight 662 nor was a proximate

cause of the crash. In January 2020, over the PlaintiffsAppellants’ objections, the District Court adopted Judge

McCarthy’s recommendation.

This appeal followed.

DISCUSSION

On appeal, the Plaintiffs-Appellants argue that the

District Court lacked jurisdiction over their claims and

that it erred in granting Midwest’s motion for summary

judgement. As we explain below, with respect to the jurisdictional challenge, which we review de novo, see, e.g.,

Plumbing Indus. Bd., Plumbing Loc. Union No. 1 v. E.

W. Howell Co., 126 F.3d 61, 65 (2d Cir. 1997), the District

It is not clear from the record whether the dismissal of the claims

against NAC was pursuant to a settlement or otherwise.

5

18a

Court correctly determined that this case could be removed to federal court under the federal officer removal

statute. However, as to the challenge to the grant of summary judgment to Midwest, also reviewed de novo, construing the evidence in the light most favorable to the

Plaintiffs-Appellants and drawing all reasonable inferences in their favor, see, e.g., June v. Town of Westfield,

370 F.3d 255, 257 (2d Cir. 2004), we conclude that the

Plaintiffs-Appellants’ claims are not preempted and that

there remain genuine disputes of material fact regarding

the Defendant-Appellee’s liability for Flight 662’s fatal

crash.

I.

Although the Plaintiffs-Appellants contest the District

Court’s exercise of federal officer jurisdiction, we conclude that the District Court properly exercised jurisdiction over the Plaintiffs-Appellants’ claims.

The federal officer removal statute, 28 U.S.C.

§ 1442(a)(1), provides for removal of cases to federal court

by a defendant who (1) is a “person” who “act[ed] under

[a federal] officer,” (2) is being sued for an act taken “under color of [federal] office,” and (3) raises “a colorable

federal defense.” Isaacson v. Dow Chem. Co., 517 F.3d

129, 135 (2d Cir. 2008) (quotation marks omitted). We construe the statute liberally and have interpreted each of

these requirements broadly. Id. at 136. The term “person”

includes corporations. Id. at 135. A person who assists, is

supervised by, or receives delegated authority from a federal officer qualifies as one who is “acting under” the officer. Id. at 136-37. The causal connection implied by the

“under color of . . . office” requirement is satisfied if the

challenged act “occurred while [d]efendants were performing their official duties.” Id. at 137-38 (emphasis in

original). And “[c]ourts have imposed few limitations on

19a

what qualifies as a colorable federal defense.” Id. at 138;

see id. at 139-40 (corporation claiming government contractor defense raised colorable federal defense).

Here, Midwest satisfies all of the requirements of section 1442(a)(1). It is a “person” that assisted U.S. Air

Force officers; it is being sued for allegedly negligent acts

that occurred while performing its official air traffic control duties; and its claim of federal preemption based on

the FTCA’s combatant activities exception qualifies as a

colorable federal defense. See Jefferson Cnty. v. Acker,

527 U.S. 423, 431 (1999) (defendants need only raise a “colorable defense,” even if we reject that defense). The District Court therefore properly exercised jurisdiction over

the present action pursuant to the federal officer removal

statute.

II.

The Plaintiffs-Appellants next argue that the District

Court erred in granting summary judgment in favor of

Midwest on the ground that their state-law claims were

preempted by the combatant activities exception of the

FTCA.

A.

The FTCA waives the federal Government’s sovereign

immunity from tort claims brought against the United

States for harm caused by the negligence or wrongful conduct of “any employee of the Government.” 28 U.S.C.

§ 1346(b)(1); see id. § 2674. The FTCA contains several

exceptions, which preserve the Government’s sovereign

immunity under specified circumstances. See id. § 2680.

Relevant here, the “discretionary function” exception

bars claims “based upon the exercise or performance [of]

. . . a discretionary function or duty on the part of a federal

agency or an employee of the Government,” id. § 2680(a),

20a

and the “combatant activities” exception contained in 28

U.S.C. § 2680(j) bars claims “arising out of the combatant

activities of the military or naval forces . . . during time of

war,” id. § 2680(j). But the FTCA explicitly excludes “any

contractor with the United States” from the definition of

“[f]ederal agenc[ies]” covered by the statute and limits

the “[e]mployee[s]” covered by the statute to, as relevant

here, “officers or employees of any federal agency.” Id.

§ 2671. The FTCA thus excludes military contractors

from the scope of the Government’s retained sovereign

immunity.

Despite the plain language excluding government contractors, in Boyle v. United Technologies Corporation,

487 U.S. 500 (1988), the Supreme Court held that the

FTCA’s discretionary function exception preempted

state-law claims arising from a contractor’s alleged design

defect where “the state-imposed duty of care . . . [was]

precisely contrary to the duty imposed by the Government.” Id. at 509; see id. at 510-13. Boyle involved a Marine who drowned when he was unable to escape his helicopter after it crashed into the ocean during a training exercise. Id. at 502. The Marine’s father brought state-law

tort claims against the contractor that built the helicopter,

alleging that the design of the helicopter’s emergency escape system was defective. Id. at 503. The escape hatch,

per the Government’s specifications, opened outward instead of inward, rendering it ineffective in a submerged

craft. Id. at 503, 509.

On review, the Court first identified an “area of

uniquely federal interest” in “the procurement of equipment by the United States.” Id. at 507; see also id. at 505

n.1 (“[T]he liability of independent contractors performing work for the Federal Government . . . is an area of

21a

uniquely federal interest.”). It next identified the potential for significant conflict between “state law which holds

Government contractors liable for design defects” and the

discretionary function of selecting an appropriate design

for equipment for the United States Armed Forces. Id. at

512. Finally, to determine the appropriate “scope of displacement” of state law, the Court adopted a three-part

test: “Liability for design defects in military equipment

cannot be imposed, pursuant to state law,” it said, “when

(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about

the dangers in the use of the equipment.” Id. These conditions “assure that the design feature in question was

considered by a Government officer, and not merely by

the contractor itself.” Id.

In short, “under Boyle, for the military contractor defense to apply, government officials ultimately must remain the agents of decision.” In re Joint E. & S. Dist. N.Y.

Asbestos Litig., 897 F.2d 626, 630 (2d Cir. 1990) (“Asbestos

Litigation”). That is, state-law claims against military

contractors are preempted under Boyle only where the

federal Government has mandated the action that allegedly violated state law.

B.

Midwest does not argue (nor could it) that it is covered

under the FTCA or that the Plaintiffs-Appellants’ claims

are preempted as a result of the limited holding in Boyle

itself. Instead, Midwest asks us to extend the application

of the federal common-law defense in Boyle to the FTCA’s

combatant activities exception, which preserves the Government’s immunity from claims arising out of “combatant activities of the military . . . during time of war.” 28

U.S.C. § 2680(j). Midwest argues that, under the logic of

22a

Boyle, it is protected by the combatant activities exception because the claims against it arose from its involvement in combatant activities of the U.S. military.

Such an extension would protect military contractors

from state-law claims premised on conduct not mandated,

authorized, or even considered by the federal Government. In the absence of clear direction from Congress or

the Supreme Court, we decline Midwest’s invitation.

1.

As an initial matter, we recognize that several of our

sister Circuits have to varying degrees extended the application of Boyle to the FTCA’s combatant activities exception. The process of extending Boyle beyond its specific facts began with a case that, like Boyle, involved

products liability claims against manufacturers of military equipment.

In Koohi v. United States, 976 F.2d 1328 (9th Cir.

1992), the Ninth Circuit held that the combatant activities

exception preempted tort claims against the manufacturer of an air defense system that U.S. naval personnel

used to shoot down an Iranian commercial airliner. Id. at

1336-37. The court explained that the combatant activities

exception “recognize[s] that during wartime encounters

no duty of reasonable care is owed to those against whom

force is directed as a result of authorized military action.” Id. at 1337 (emphasis added). Because the authorized “direction of force against the aircraft by United

States naval forces cannot give rise to tort liability [under

the FTCA],” and “imposition of liability on [the] defense

contractor ‘w[ould] produce [the] same effect sought to be

avoided by the FTCA exception,’ ” the Ninth Circuit held

23a

that state-law claims against the contractor for the military’s use of force were preempted. Id. (quoting Boyle,

487 U.S. at 511).

In Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009),

the D.C. Circuit extended Boyle beyond the products liability context, to lawsuits under D.C. tort law against private contractors who worked as interpreters and interrogators at Abu Ghraib prison in Iraq and allegedly participated in the atrocities committed there. The majority

opinion first addressed “whether a significant conflict exists between the federal interests and D.C. tort law” by

considering the purpose of the combatant activities exception. Id. at 7. Describing the legislative history of the exception as “singularly barren,” the majority rejected the

Ninth Circuit’s more limited view of the federal interests

that the exception seeks to protect. Id. “The policy embodied by the combatant activities exception,” the majority concluded, “is simply the elimination of tort from the

battlefield.” Id. Whereas state and federal law imposed

specific and conflicting duties that justified preemption in

Boyle, the majority in Saleh held that “it is the imposition

per se of the state or foreign tort law that conflicts with

the FTCA’s policy of eliminating tort concepts from the

battlefield.” Id. The majority then fashioned a two-part

test to determine the scope of displacement: “During wartime, where a private service contractor is [1] integrated

into combatant activities over which [2] the military retains command authority, a tort claim arising out of the

contractor’s engagement in such activities shall be

preempted.” Id. at 9.6 Saleh thus represents a substantial

expansion of the Boyle preemption doctrine.

The Saleh majority also rejected the analysis of the district court

in that case, which identified a federal interest in “shield[ing] military

combat decisions from state law regulation” and therefore held that

6

24a

By contrast, the dissent in Saleh thought that the

“preemption question in these cases should be controlled

by Boyle, which authorizes displacement of state law only

when a federal contract imposes a directly conflicting

duty on a contractor.” Id. at 32 (Garland, J., dissenting).

The dissent observed that unlike the Government-mandated helicopter design in Boyle, the alleged conduct of

the contractors in Saleh violated federal law and policy.

Id. at 23. And, “[u]nlike the situation in Koohi, where sailors fired the weapon, there [was] no claim . . . that the

force used against the plaintiffs was either ‘directed’ or

‘authorized’ by U.S. military personnel.” Id. at 24. Without “incompatible” state and federal duties, the dissent

said, there was “no warrant for preemption.” Id. at 23.

Since Saleh, two other circuits have applied Boyle to

the combatant activities exception. In a case from the

Third Circuit, Harris v. Kellogg Brown & Root Services,

Inc., 724 F.3d 458 (3d Cir. 2013), the parents of a U.S. soldier who died by electrocution while showering at his barracks in Iraq filed negligence claims against the U.S. military contractor hired to perform maintenance at the barracks. Id. at 463. And in In re KBR, Inc., Burn Pit Litigation, 744 F.3d 326 (4th Cir. 2014), a Fourth Circuit case,

U.S. military personnel who served in Iraq and Afghanistan brought various state-law tort claims for injuries suffered as a result of military contractors’ waste disposal

and water treatment practices, which allegedly violated

military directives and the defendants’ contract with the

government. Id. at 331-32. In both of these opinions, the

preemption was justified only where contractors were “under the direct command and exclusive operational control of the military chain

of command such that they are functionally serving as soldiers.” Ibrahim v. Titan Corp., 556 F. Supp. 2d 1, 5 (D.D.C. 2007), rev’d in part,

Saleh, 580 F.3d 1.

25a

circuits rejected the Ninth Circuit’s narrow view and the

D.C. Circuit’s broad view of the relevant federal interest,

holding instead that the purpose of the combatant activities exception “is to foreclose state regulation of the military’s battlefield conduct and decisions.” Harris, 724 F.3d

at 480; see In re KBR, 744 F.3d at 348.

Having paved a middle ground on the federal interest

at issue, the Third and Fourth Circuits nevertheless retained Saleh’s two-part “combatant- activities, commandauthority” test for determining the scope of preemption

(that is, whether the contractor is (1) integrated into combatant activities over which (2) the military retained command authority). See Harris, 724 F.3d at 480-81; In re

KBR, 744 F.3d at 349-51. The Third Circuit considered

that test “well-tailored to the purpose underlying

§ 2680(j).” Harris, 724 F.3d at 481. “The first prong—

whether the contractor is integrated into the military’s

combatant activities—ensures that preemption occurs

only when battlefield decisions are at issue. And the second prong—whether the contractor’s actions were the result of the military’s retention of command authority—

properly differentiates between the need to insulate the

military’s battlefield decisions from state regulation and

the permissible regulation of harm resulting solely from

contractors’ actions.” Id. Both prongs need to be satisfied

for preemption to occur.

After applying the two-part test, the Third and Fourth

Circuits in Harris and In re KBR concluded that the relevant state laws were not preempted. In Harris, for example, the Third Circuit held that the state-law claims

brought by the parents of the soldier electrocuted in the

shower were not preempted even though the contractor’s

maintenance of electrical systems at a barracks in an ac-

26a

tive war zone was a combatant activity and therefore satisfied the first prong of the test. The Third Circuit determined that the contractor had failed to satisfy the second

prong of the test because “[t]he military did not retain

command authority over [the contractor’s] installation

and maintenance.” Id. “[T]he relevant contracts and work

orders,” the court explained, “did not prescribe how [the

contractor] was to perform the work required of it.” Id.

Rather, the contracts “provided for general requirements

or objectives” and gave the contractor “considerable discretion in deciding how to satisfy them.” Id.; see also In re

KBR, 744 F.3d at 351 (vacating the district court’s dismissal of the injured servicemembers’ claims because “the extent to which [the contractor] was integrated into the military chain of command is unclear”).

2.

On appeal, Midwest urges a significant extension of

Boyle and the federal common-law defense it recognized.

But the Supreme Court has repeatedly “underscore[d]

the care federal courts should exercise before taking up

an invitation to try their hand at common lawmaking.” Rodriguez v. FDIC, 140 S. Ct. 713, 718 (2020). And the Court

“has never extended Boyle beyond the discrete conflicts

that application of the discretionary function exception

targets.” Saleh, 580 F.3d at 24 (Garland, J., dissenting).

Boyle held that state law would not be preempted

where the plaintiffs sought to impose a duty on a contractor that was neither “identical to one assumed under the

contract” nor “contrary to any assumed.” Boyle, 487 U.S.

at 509. If a “contractor could comply with both its contractual obligations and the state-prescribed duty of care[,]

[n]o one suggests that state law would generally be preempted.” Id. For example, a federal contract for the pur-

27a

chase of air conditioners that “specif[ied] the cooling capacity but not the precise manner of construction” would

not preempt a state law imposing a duty of care to include

a certain safety feature. Id. In Boyle, preemption was justified because the duty the plaintiffs sought to impose was

precisely contrary to that imposed by the contract. Id.7

The Court thus characterized its holding in Boyle as a

“special circumstance” in which the “government has directed a contractor to do the very thing that is the subject

of the claim.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61,

74 n.6 (2001).8

Boyle similarly distinguished Miree v. DeKalb County, 433 U.S.

25 (1977), in which the Court held that federal common law did not

preempt state-law claims arising from an aviation accident, on the

ground that the plaintiffs in Miree were “not seeking to impose upon

the person contracting with the Government a duty contrary to the

duty imposed by the Government contract.” Boyle, 487 U.S. at 508.

7

The Supreme Court’s guidance on the related doctrine of “derivative sovereign immunity” is one more reason to avoid expanding

Boyle. The Court’s decision in Boyle drew support from Yearsley v.

W.A. Ross Construction Co., 309 U.S. 18 (1940), a leading derivative

sovereign immunity case. See Boyle, 487 U.S. at 506. The Court recently explained that the “[c]ritical” factor in Yearsley was “the contractor’s performance in compliance with all federal directions”; in

other words, the contractor had a defense because its actions were

“all authorized and directed by the Government of the United States.”

Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 167 & n.7 (2016) (quoting

Yearsley, 309 U.S. at 20); see also Kate Sablosky Elengold & Jonathan D. Glater, The Sovereign Shield, 73 STAN. L. REV. 969, 987-92

(2021) (analyzing the relationship between Boyle and Yearsley and

concluding that, under either doctrine, the key question is “did the

government dictate the actions, or did the government leave them to

the contractor’s discretion?”); In re World Trade Ctr. Disaster Site

Litig., 521 F.3d 169, 197 (2d Cir. 2008) (requiring a showing that “federal agencies exercised supervision, control, and enforcement authority,” rather than “merely accept[ing], without substantive review or

enforcement authority, decisions made by [the contractor]”).

8

28a

Our Court has likewise declined to expand the government contractor defense beyond Boyle’s direct conflict rationale. We have instead limited contractor liability only

where the government mandated the action that violated

state law. See Asbestos Litig., 897 F.2d at 630 (“[G]overnment officials ultimately must remain the agents of decision.”); In re Agent Orange Prod. Liab. Litig., 517 F.3d

76, 90 (2d Cir. 2008) (“If the government buys a product

‘off-the-shelf’ . . . the seller of that product cannot be

heard to assert that it is protected from the tort-law consequences of the product’s defects . . . [because] the seller

was not following the government’s discretionary procurement decisions.”). In Asbestos Litigation, for example, the defendant-contractor relied on Boyle to defend

against a claim that it was liable under state law, which

the contractor said “would result in the imposition of passthrough costs from the contractor upon the Government.”

Asbestos Litig., 897 F.2d at 631. We rejected the contractor’s reliance on Boyle. “Had Boyle’s aim been to prevent

military contractors from passing any liability costs on to

the Government,” we said, “it simply could have granted

military contractors a blanket immunity from all state tort

liability.” Id. The contractor in Asbestos Litigation also

claimed that it was entitled to a defense under Boyle because the Government would be immune under the discretionary function exception for its “conscious decision not

to warn those working in shipyards . . . of the dangers”

presented by asbestos. Id. In response, we pointed to the

“crucial distinction” between the defense recognized in

Boyle and the Government’s immunity under the discretionary function exception. Id. at 632. The relevant issue

in assessing the contractor’s liability, we said, is not the

scope of the Government’s immunity under an FTCA exception. “Stripped to its essentials, the military contractor’s defense under Boyle is to claim, ‘The Government

29a

made me do it.’ ” Id. We have thus consistently recognized

that “Boyle hinges the military contractor defense upon

the military contractor’s having followed a governmentapproved requirement contrary to a state tort law duty.”

Id. at 631. And we have declined to extend Boyle’s atextual preemption defense beyond that core rationale.

Commentators generally agree that “courts should

not create a combatant-activities defense for government

contractors,” Margaret Z. Johns, Should Blackwater and

Halliburton Pay for the People They’ve Killed? Or Are

Government Contractors Entitled to a Common-Law,

Combatant-Activities Defense?, 80 TENN. L. REV. 347,

351 (2013), or at least that preemption is appropriate only

“in cases where the contractor was under the supervision

and control of the military” and “government conduct substantially circumscribe[d] contractor discretion,” Andrew

Finkelman, Suing the Hired Guns: An Analysis of Two

Federal Defenses to Tort Lawsuits Against Military

Contractors, 34 BROOK. J. INT’L L. 395, 461-63 (2009). See

also, e.g., Stephen I. Vladeck, The Demise of MeritsBased Adjudication in Post-9/11 National Security Litigation, 64 DRAKE L. REV. 1035, 1073 (2016); Rodney M.

Perry, Note, Fixing the Faults: An Argument Against

the Saleh v. Titan Corp. Rule for Private Military Contractor Immunity, 42 PUB. CONT. L.J. 607, 623 (2013)

(noting that under Saleh military contractors may be afforded broader protection from tort liability than U.S.

servicemembers enjoy under the Westfall Act). Even

those who favor broad protection for military contractors

question the legal basis for judicial expansion of Boyle beyond the “special circumstances” of that case. See, e.g.,

Major Jeffrey B. Garber, The (Too) Long Arm of Tort

Law: Expanding the Federal Tort Claims Act’s Combatant Activities Immunity Exception to Fit the New Reality of Contractors on the Battlefield, ARMY LAW., Sept.

30a

2016, at 20 (conceding that it is “undeniable that a

straight-forward reading of the [FTCA] weighs against

the application of the [combatant activities] exception to

contractors” and therefore advocating for congressional

expansion of contractor liability protections to address

the “unsustainable status quo”); see also Brief of Retired

Military Officers as Amici Curiae at 7-28, Al Shimari v.

CACI Int’l, Inc., 679 F.3d 205 (4th Cir. 2012) (Nos. 091335, 10-1891, 10-1921) (arguing that the D.C. Circuit’s

decision in Saleh runs counter to the law of war’s fundamental distinction between combatants and civilians, as

well as U.S. military regulations and public policy).9

The text of the FTCA, Boyle itself, precedent from

this Circuit, and various commentators suggest that only

Congress can do what Midwest asks us to do. “The enactment of a federal rule in an area of national concern, and

the decision whether to displace state law in doing so, is

generally made not by the federal judiciary . . . but by

the people through their elected representatives in Congress.” City of Milwaukee v. Illinois, 451 U.S. 304, 312-13

(1981); see Wyeth v. Levine, 555 U.S. 555, 565 (2009)

(“[W]e start with the assumption that [state law is] not to

be superseded by [federal law] unless that was the clear

These widespread concerns are amplified by the lack of a limiting

principle on the preemption recognized in Saleh. The military contractor defense recognized in Boyle may have been “atextual,” but it

was limited by the requirement of a “discrete conflict.” Saleh, 580

F.3d at 23 (Garland, J., dissenting). By contrast, the broad preemption based on the combatant activities exception that Midwest seeks

has few apparent bounds. The FTCA also contains exceptions for

“[a]ny claim arising in a foreign country,” 28 U.S.C. § 2680(k), and

“[a]ny claim arising out of assault[] [or] battery,” 28 U.S.C. § 2680(h).

Would these exceptions preempt all tort claims against military contractors operating abroad? “Once we depart from the limiting principle of Boyle, it is hard to tell where to draw the line.” Saleh, 580 F.3d

at 23 (Garland, J., dissenting).

9

31a

and manifest purpose of Congress.” (quotation marks

omitted)). Even if “[i]t may well be that, all things being

equal, state law ought to play very little role in creating

liability for the actions of private military contractors

overseas,” it is entirely unclear that “the federal courts

([as opposed to] the political branches) have the ability to

say so.” Vladeck, The Demise of Merits-Based Adjudication in Post-9/11 National Security Litigation, supra, at

1073; cf. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403

(2018) (“The political branches, not the Judiciary, have the

responsibility and institutional capacity to weigh foreignpolicy concerns.”). We therefore decline to expand Boyle

beyond its direct conflict rationale.

3.

Keeping that rationale in mind, we have no problem

retaining Boyle’s useful “analytic process” for determining whether federal law preempts state-law claims

against government contractors. Harris, 724 F.3d at 479;

see In re KBR, 744 F.3d at 347 (similar). Under that process, we consider whether a “significant conflict” exists

between a “uniquely federal interest” (reflected in the

combatant activities exception) and the operation of state

law, and then determine the appropriate scope of displacement resulting from the conflict. Boyle, 487 U.S. at

507-12.

We begin with the relevant federal interest. As noted,

four sister Circuits have reached varying conclusions

about the “uniquely federal interest” implicated by statelaw tort claims arising out of a government contractor’s

involvement in combatant activities. The Ninth Circuit

held that the combatant activities exception “recognize[s]

that during wartime encounters no duty of reasonable

care is owed to those against whom force is directed as a

result of authorized military action.” Koohi, 976 F.2d at

32a

1337. The D.C. Circuit broadly held that “the policy embodied by the combatant activities exception is simply the

elimination of tort from the battlefield.” Saleh, 580 F.3d

at 7. And the Third and Fourth Circuits came out somewhere in the middle, holding that the purpose of the combatant activities exception “is to foreclose state regulation

of the military’s battlefield conduct and decisions.” Harris, 724 F.3d at 480; see In re KBR, 744 F.3d at 348.

There is, we admit, “very little authority for us to rely

on to resolve this disagreement,” Harris, 724 F.3d at 479,

but resolve it we must. Our principal concern with the

Ninth Circuit’s narrow focus on “those against whom

force is directed” is that it ignores that the combatant activities exception “would prevent suits against the military for harm it causes through friendly fire.” Id. at 480.

On the other hand, the D.C. Circuit’s blanket statement

“loses sight of the fact” that the FTCA “does not provide

immunity to nongovernmental actors”; thus, “to say that

Congress intended to eliminate all tort law is too much.”

Id. Ultimately, we find the analysis of the Third and

Fourth Circuits more persuasive and “adopt [their] formulation of the interest at play here.” In re KBR, 744 F.3d

at 348.

So what is the proper scope of displacement resulting

from the conflict between the federal interest in foreclosing state regulation of the military’s battlefield decisionmaking and the operation of state tort law? As noted,

the Third and Fourth Circuits adopted Saleh’s two-part

test for determining the scope of preempted state claims

(again, that test is whether the contractor was (1) “integrated into combatant activities,” (2) “over which the military retain[ed] command authority”). Saleh, 580 F.3d at

9; see Harris, 724 F.3d at 480-81; In re KBR, 744 F.3d at

349-51. But recall that the D.C. Circuit designed its test

33a

around the FTCA’s purported “policy of eliminating tort

concepts from the battlefield,” Saleh, 580 F.3d at 7, a

broad interest indeed. So the Third and Fourth Circuits’

more narrowly defined federal interest in foreclosing

state regulation of the military’s battlefield conduct and

decisions will result in a correspondingly more modest

displacement of state law.10 No significant conflict exists

between that interest and state law unless the challenged

action can reasonably be considered the military’s own

conduct or decision and the operation of state law would

conflict with that decision.

With that in mind, we conclude that the combatant activities exception does not displace state-law claims

against contractors unless (1) the claim arises out of the

contractor’s involvement in the military’s combatant activities, and (2) the military specifically authorized or directed the action giving rise to the claim. These two conditions “assure that the suit is within the area where the

policy of the [combatant activities exception] would be

frustrated—i.e., they assure that the [contractor’s action

The federal Government itself criticized the Saleh test as “inexact, unclear, and potentially misguided.” Brief for United States as

Amicus Curiae at 15, Saleh v. Titan Corp., 564 U.S. 1037 (No. 091313). In particular, the Government has argued, the two-part Saleh

test “misunderst[ands] the circumscribed role private contractors

play in war zones” under both the law of war and U.S. military regulations; it improperly focuses on “whether the tortfeasor is himself

engaging in a combatant activity,” rather than on the military’s combatant activities; and it “d[oes] not address whether application of the

preemption defense it recognized would be appropriate if the contractor employees acted outside the scope of their employment or the contractor acted outside the scope of the contract,” and thus might afford

more protection to private contractors than U.S. military personnel

receive under the Westfall Act. Id. at 15-17. In any event, the narrower federal interest identified by the Third and Fourth Circuits

plainly calls for a narrower displacement.

10

34a

giving rise to the claim] was considered by a Government

officer, and not merely by the contractor itself.” Boyle,

487 U.S. at 512; see also Ibrahim v. Titan Corp., 556 F.

Supp. 2d 1, 5 (D.D.C. 2007) (“[C]ommon law claims

against private contractors will be preempted [by the

combatant activities exception] only to the extent necessary to insulate military decisions from state law regulation.” (emphasis in original)). The combatant activities exception would thus “displace[] state law only when the

Government, making a . . . [battlefield] decision contrary

to the requirements of state law, incorporates this decision into a military contractor’s . . . obligations, thereby

limiting the contractor’s ability to accommodate safety in

a different fashion.” Asbestos Litig., 897 F.2d at 632. This

test captures both the federal interest embodied in the

combatant activities exception and the requirements of

Boyle itself. In addition, it preempts only those claims

that would, if successful, impose state-law duties in conflict with the military’s battlefield decisionmaking.11

The test also strikes the proper balance between protecting military decisionmaking and opening the federal

courthouse doors to a plaintiff’s legitimate state-law

claims. Consider Koohi, for example. There, the plaintiffs’

claims against the manufacturer of a U.S. Navy air defense system would be preempted under our test because

the claims arose out of the contractor’s supply of a military vessel’s weapons, and the U.S. military itself fired the

contractor’s missile in an “authorized military action.”

Koohi, 976 F.2d at 1337. By contrast, under our test, the

Under this rule, the fact that “the military retain[ed] command

authority,” Saleh, 580 F.3d at 9, might create a question of fact as to

whether the military authorized a particular action, but it would not

be dispositive. See Boyle, 487 U.S. at 514 (noting that “whether the

facts establish the conditions for the defense is a question for the

jury”).

11

35a

plaintiffs’ claims in Saleh, Harris, and In re KBR would

not be preempted on summary judgment because the

challenged contractor actions in those cases were neither

authorized nor directed by the military.12

C.

The central act giving rise to the Plaintiffs-Appellants’

state-law claims in this case was Midwest air traffic controller Smith’s decision to cancel Flight 662’s clearance to

land, divert Flight 662 out of controlled Class D air space,

and to inform the pilot that he would “call [his] base” (i.e.,

tell him when to turn) without having obtained a visual on

the flight’s proximity to the surrounding terrain. The record on summary judgment does not establish as a matter

of law in Midwest’s favor that the military authorized or

directed Smith’s action. It was therefore error for the District Court to hold that the Plaintiffs-Appellants’ statelaw claims were preempted.

In concluding that the U.S. military did not authorize

or direct Smith’s decision, we address two important

facts.

First, Midwest’s prime contract provided that “[a]ll

work performed by the Contractor in support of this

[Statement of Work] shall be in accordance with applicable . . . [ICAO] standards.” The ICAO, in turn, provides

that, for flights conducted in accordance with visual flight

rules, “[t]he objectives of the air traffic control service

. . . do not include prevention of collision with terrain.”

Boyle requires that we engage in this analysis. More practically,

in a small segment of cases—such as in Koohi, where the challenged

action was the military’s intentional firing of a missile—the Government becomes the agent of decision, even where it did not supply reasonably precise specifications to the contractor ex ante. The logic of

Boyle applies to these cases.

12

36a

The Government thus required Midwest to comply with

the ICAO, which did not itself require controllers to prevent collisions with terrain. Second, the U.S. Air Force officer at KAIA’s control tower emphasized in an email to

the chief executive of Midwest that “ALL operational issues WILL BE DIRECTED to/through [the officer] or

[his deputy] first.” While defending the need for Midwest

controllers to advise their corporate supervisors about all

issues at the KAIA tower, Midwest’s chief executive

acknowledged that the captain was “in charge at the

tower.”

There was evidence that the military retained some

authority at KAIA’s tower and, at a very general level, approved ICAO standards. But we see no evidence that the

Government directed Smith’s actions at issue here. The

Government did not issue a specific instruction that compelled Smith’s directions to Flight 662 (allegedly in violation of his state-law duty of care). Cf. Boyle, 487 U.S. at

509 (no preemption where “the duty sought to be imposed

on the contractor is not identical to one assumed under

the contract, but is also not contrary to any assumed”).

Indeed, no member of the U.S. military was even present

in the tower the evening of the fatal crash. Preemption

arises when the Government specifically authorizes or directs the contractor action, not when the Government

generally permits the contractor to undertake a range of

actions.

Midwest alternatively argues that Smith’s air traffic

control directions “at least partially implicate[] the military’s decision to not equip the KAIA air traffic control

tower with resources to provide [terrain separation services].” Appellee’s Br. 16. By that logic, any tort claim

against a military contractor would involve an indirect

37a

challenge to the military’s decision not to prevent the action that gave rise to the claim. We have rejected that

same reasoning in failure-to-warn cases, in which we held

that contractors cannot escape liability simply because

the Government failed to require them to warn consumers

or workers about dangerous conditions of which the Government was aware when contracting for the product. See

Asbestos Litig., 897 F.2d at 631-32. We similarly conclude

that the military’s decision to stock the KAIA tower with

certain equipment did not alone permit tower controllers

to divert flights out of Class D air space without any warning or awareness of the flight’s proximity to the surrounding terrain.

Again, the preemption principles underlying Boyle as

applied to either the combatant activities exception (here)

or the discretionary function exception (in Boyle) direct

us to ask one basic question: whether “[t]he Government

made [the contractor] do it.” Asbestos Litig., 897 F.2d at

632. Because the answer in this case is no, we conclude

that the District Court erred in granting summary judgment to Midwest on preemption grounds.13

The outcome would be the same under Boyle itself. We assume

without deciding that Boyle applies to contracts for services as well

as for goods. See Hudgens v. Bell Helicopters, 328 F.3d 1329, 1334,

1345 (11th Cir. 2003) (discretionary function exception preempted

claims based on defendant-contractor’s allegedly negligent service

and maintenance of helicopters). Preemption based on a contract for

services would still demand that “government officials ultimately

must remain the agents of decision.” Asbestos Litig., 897 F.2d at 630;

accord Hudgens, 328 F.3d at 1335-37 (requiring the contractor to establish that (1) the U.S. approved reasonably precise procedures;

(2) the contractor’s performance conformed to those procedures; and

(3) the contractor warned the U.S. about the dangers associated with

those procedures that were known to the contractor but not to the

U.S.). Midwest does not argue that Smith’s instructions to Flight 662

meet this standard.

13

38a

III.

Finally, the Plaintiffs-Appellants argue that the District Court erred in granting summary judgment to Midwest on the grounds that, as a matter of law, the Defendant-Appellee neither owed a duty of reasonable care to

Flight 662 nor proximately caused the October 12, 2010

crash. We conclude that summary judgment should not

have been granted on either ground. The Defendant-Appellee, acting through the local air traffic controller,

Smith, owed a duty of care to Flight 662, and the Plaintiffs-Appellants have produced sufficient evidence for a

jury to conclude that this duty was breached and that such

breach proximately caused the fatal crash.

The parties and the District Court proceeded as if

New York law applies, although they cited “cases from a

variety of jurisdictions but not including [the law of Afghanistan].” Stanford v. Kuwait Airways Corp., 89 F.3d

117, 122 (2d Cir. 1996). Under such circumstances, it is indeed generally appropriate to apply New York law and

familiar concepts of common-law tort liability to determine the rights of the parties. Id.; Johnson v. Priceline.com, Inc., 711 F.3d 271, 275-76 & n.2 (2d Cir. 2013).

Accordingly, the Plaintiffs-Appellants’ negligence claims

require them to establish that (1) Midwest owed them a

duty of care, (2) Midwest breached this duty, and (3) the

Plaintiffs-Appellants suffered damages as a proximate result of that breach. Di Benedetto v. Pan Am World Serv.,

Inc., 359 F.3d 627, 630 (2d Cir. 2004) (citing Solomon by

Solomon v. City of New York, 66 N.Y.2d 1026, 1027

(1985)).

Beginning with the duty of care, a legal question, id.,

neither New York state courts nor this Court has yet addressed the scope of an air traffic controller’s duty of care

39a

to a pilot operating under VFR. Out-of-circuit cases, however, have adopted some basic principles that the parties

do not meaningfully dispute: Air traffic controllers and pilots generally share a concurrent duty to ensure an aircraft’s safe operation. See Beech Aircraft Corp. v. United

States, 51 F.3d 834, 838 (9th Cir. 1995) (per curiam). “Both

the pilot and the air traffic controller owe a duty of care to

passengers in an airplane. . . . Each is responsible for

the safe conduct of the aircraft and the safety of its passengers.” Redhead v. United States, 686 F.2d 178, 182 (3d

Cir. 1982). While “[t]he pilot is in command of the aircraft,

is directly responsible for its operation, and has final authority as to its operation,” id., “[t]ower personnel and air

traffic controllers are often a source of vital information,”

the negligent provision of which may lead to crashes, id.

With respect to VFR flights, however, courts have

held that pilots are responsible for their own terrain separation and have, accordingly, recognized a more circumscribed duty for air traffic controllers. As one court has

summarized such non-Second Circuit precedent: “The

case law is incontrovertible that an aircraft operating pursuant to visual flight rules must provide its own navigation

and clearance from obstructions. The duty to operate the

aircraft, and to navigate, is assigned to the pilot who must

provide his own separation from obstructions, and other

aircraft, while in VFR conditions.” In re Air Crash Near

Rio Grande, Puerto Rico, on Dec. 3, 2008, No. 11-CV80761, 2016 WL 6916600, at *5, 2016 U.S. Dist. LEXIS

148178, *18 (S.D. Fla. Oct. 24, 2016) (quoting Baker v.

United States, 417 F. Supp. 471, 484 (W.D. Wash. 1975)).

But however limited in scope, the controller also has

responsibilities with respect to a VFR flight. As one district court observed, air traffic controllers have been held

to have such a duty to issue safety warnings “beyond

40a

those required by [applicable controlling documents and]

manuals”:

(1) when danger to the aircraft is immediate and extreme; (2) when the air traffic controller is able to

gather more information or make more accurate observations than the pilot; (3) when the controller is better qualified than the pilot to evaluate the danger; (4)

when the pilot declares an emergency or indicates distress; (5) when danger is “reasonably apparent” to the

controller but not apparent, in the exercise of due care,

to the pilot; and (6) when the controller has conveyed

dangerously inaccurate or misleading information to

the pilot.

Turner v. United States, 736 F. Supp. 2d 980, 1008

(M.D.N.C. 2010) (citations omitted).14

To limn the bounds of a controller’s duty to a VFR

flight, we refer to two cases from our sister Circuits. First,

in Wojciechowicz v. United States, 582 F.3d 57 (1st Cir.

2009), the First Circuit reviewed a case in which a small

plane, flown under VFR, crashed into the El Yunque

mountain in Puerto Rico, killing all aboard. Id. at 61.

About five minutes before the crash, the pilot had spoken

with an air traffic controller, who had given the pilot a go

ahead for landing and provided an “approach vector to the

airport.” Id. at 62. The controller did not, however, direct

the pilot to fly any particular route or at a specific altitude

Courts, including this Circuit, have also recognized that a controller’s failure to report significant weather conditions may be negligent. Ingham v. E. Air Lines, Inc., 373 F.2d 227, 240-41 (2d Cir.

1967); see also Himmler v. United States, 474 F. Supp. 914, 930 (E.D.

Pa. 1979) (“A controller has a duty to report weather changes which,

under the circumstances, a pilot would consider important in deciding

whether to try to land and in preparing for the conditions he would

meet in landing.”).

14

41a

before entering that traffic pattern around the airport.

Wojciechowicz v. United States, 576 F. Supp. 2d 241, 24849 (D.P.R. 2008) (“[The pilot] was free to choose his own

desired routing to the traffic pattern entry point . . . , as

well as any altitude at any given point.”), aff’d, 582 F.3d

57 (1st Cir. 2009). Before entering the pattern directed by

the controller, the plane flew into clouds covering the terrain and crashed into El Yunque. Wojciechowicz, 582 F.3d

at 63. The plaintiffs-appellants, who included the relatives

of the pilot and passengers killed in the crash, faulted the

controller for not directing the pilot away from the mountain or issuing a safety alert. Id. at 63-64. But the First

Circuit, in affirming the district court’s judgment in favor

of the controller following a bench trial, held that the controller had not violated a duty to separate the plane from

the mountain because “[t]here [was] no serious contention

that the pilot did not know where El Yunque was” and the

controller “did not then know the plane’s course or altitude or whether it was approaching or turning away from

the obstruction.” Id. at 61, 69. The controller likewise had

no duty to issue a safety alert regarding unsafe proximity

to the terrain; the controller had insufficient notice that

the pilot “had placed himself in a dangerous position” because the pilot was operating under VFR and had made

no distress calls. Id. at 70.

Second, in Yates v. United States, 497 F.2d 878 (10th

Cir. 1974), the pilot of a small Cessna plane was flying under VFR into an Albuquerque, New Mexico airport. He

contacted air traffic control for landing instructions. Id. at

880. The controller directed the pilot to follow closely behind a much larger TWA-operated Boeing 707 that would

land just before his flight. Id. About three hundred feet

from the near end of the runway, the Cessna pilot was hit

by the 707’s wake turbulence—which is “invisible and

42a

moves in a circular fashion from a vortex” and “is generated behind and below heavier aircraft”—and crashed. Id.

at 880-81. The government—named a defendant because

the FAA operated the tower—argued that it could not be

held liable for the crash because “the regulations establish

that each pilot is in command of and responsible for his

own aircraft and has the final authority with respect to its

operation, and that it is up to the pilot to exercise his own

judgment as to existence of hazard and to refuse to accept

instructions which he considers increase his peril.” Id. at

881. The Tenth Circuit rejected the argument, reasoning

that a “controller’s directions and warnings” are not

“merely advisory.” Id. at 883. “This becomes clear,” the

court continued, “in light of considering that if the pilot

could depart from the control of the tower at any time[,]

the control of the airfield traffic would soon become a

shambles.” Id. Further, the court concluded that the controller had an obligation to warn the Cessna pilot of potential wake turbulence because “[i]n relationship to the

extent of the hazard[,] the warning would have called for

very little effort.” Id.

Of the many important differences between

Wojciechowicz and Yates, one is critical here: While the

plane in the former case crashed before it had entered the

traffic pattern provided by the air traffic controller, the

plane in the latter case crashed from the 707’s wake turbulence, which the controller should have known about,

while complying with the controller’s instruction to land

behind the larger plane. At the very least, then, these

cases taken together, although not binding on us, stand

for the proposition that a controller has a duty not to lead

a VFR flight into a danger that the controller is or should

be aware of. This is consistent, too, with the above-quoted

statement from Turner, that courts have held a controller

to a duty to warn a VFR flight when he “has conveyed

43a

dangerously inaccurate or misleading information to the

pilot,” “is able to gather more information or make more

accurate observations than the pilot,” or “is better qualified than the pilot to evaluate the danger.” Turner, 736 F.

Supp. 2d at 1008.

Accordingly, we cannot agree with the District Court

or the Defendant-Appellee that the common law imposes

on a controller like Smith no duty of care to a VFR flight.

The common-law principle that an aircraft operating pursuant to VFR must provide its own terrain separation and

obstacle avoidance does not free from any potential liability an air traffic controller who guides the plane into danger that the controller knew about or ought to have known

about.

Stated in general terms, we think that Midwest was

obligated not to put Flight 662 in peril that a reasonable

controller would—or at least should—have foreseen or

anticipated. But while “the scope of the legal duty of a controller to issue a warning is easily defined in general

terms,” such duty in a given case “is very fact specific and

will probably require a different action in every circumstance.” Id. (quoting In re Greenwood Air Crash, 873 F.

Supp. 1257, 1265 (S.D. Ind. 1995)). We agree with these

other courts that have recognized that “[i]n virtually

every case what a reasonable [controller] would do in the

defendant’s position will necessarily need to be established through expert testimony.” Id. (quoting Greenwood Air Crash, 873 F. Supp. at 1266). Yet the District

Court disregarded the Plaintiffs-Appellants’ experts’

views on the controller’s duty of care in this case. According to the District Court, expert witness Julie Harvey’s

opinion that Smith assumed a duty when he redirected

Flight 662 was undermined by her acknowledgement that

44a

under VFR, pilot Bulos was responsible for terrain separation. The District Court also disregarded the opinion of

the Plaintiffs-Appellants’ other expert, Colin Sommer, because it thought that Sommer’s view that Smith’s conduct

gave rise to a duty to separate the aircraft from the terrain lacked common-law support. But as explained above,

the common law does not eliminate a controller’s duty of

reasonable care when guiding a VFR flight. Indeed, it is

the proper role of these experts to opine on what a reasonable controller would have done in the Kabul tower

that fateful evening.

We also find unconvincing Midwest’s argument that it

owed no duty to Flight 662 because the controlling documents in place at KAIA provided that pilots held the ultimate responsibility for aircraft safety, including obstacle

avoidance. Appellee’s Br. 37. As we have noted, the Afghanistan AIP stated that the “[u]ltimate responsibility

for aircraft and terrain avoidance rests with the pilot in

command.” App’x 1458. And under the ICAO standards,

“[t]he objectives of the air traffic control service [for VFR

flights] . . . do not include prevention of collision with terrain.” App’x 1688. While these rules might be relevant to

the division of responsibilities between a controller and a

pilot operating under VFR, or in determining whether

any duty of care was breached, we cannot agree that they

foreclose the imposition of any liability where the controller leads a pilot into danger. Holding otherwise would render a controller’s instructions as “merely advisory.”

Yates, 497 F.2d at 883 (“We cannot, therefore, accept the

view that the controllers with the complex equipment

which they employ are there merely to give advice.”); see

Himmler, 474 F. Supp. at 928 (“Where, as here, a pilot

places himself in the hands of the controller and thereafter follows the controller’s suggestions or instructions, the

45a

pilot is entitled to rely upon such information and directions and is not free or expected to disregard same.”). Under Midwest’s view, a pilot in Bulos’s position might be

required to ignore a controller’s direction to preserve the

safety of the aircraft, possibly putting others—including

nearby traffic like Ariana 2748—in harm’s way, thus creating the very disorder that air traffic control exists to

prevent. App’x 1364 (“The ATC Local Controller is responsible for providing safe, orderly and expeditious control to all aircraft operating in the Kabul [Control

Zone].”); see also Yates, 497 F.2d at 883 (“[I]f the pilot

could depart from the control of the tower at any time[,]

the control of the airfield traffic would soon become a

shambles.”).

Underscoring this conclusion that the controlling evidence and testimony do not extinguish Midwest’s duty of

care to Flight 662, moreover, is Harvey’s report and testimony. She opined that Smith’s instructions to Bulos to

“extend your downwind” and “I’ll call your base” would

have been understood by the pilot to be mandatory and

not advisory. See, e.g., App’x 1020-24, 1085, 1141-42.

The control tower’s lack of equipment capable of indicating an airplane’s proximity to the terrain also does not

nullify the controller’s duty to exercise reasonable care.

What Smith knew, or should have known, when communicating with Flight 662 that evening relates not to the existence of his duty to exercise reasonable care but to

whether such duty was breached—an issue best left to the

trier of fact. See, e.g., Williams v. Utica Coll. of Syracuse

Univ., 453 F.3d 112, 118-19 (2d Cir. 2006). While the limited equipment in the tower could support a finding that

Smith was unable to foresee the peril awaiting Flight 662,

we think that a reasonable jury could also conclude that

46a

Smith’s ignorance of the aircraft’s position and unfamiliarity with the surrounding terrain shows that he failed to

exercise reasonable care in guiding Bulos outside of Class

D airspace.

Indeed, sufficient other evidence has been introduced

to enable a factfinder to conclude that Midwest breached

its duty of reasonable care. Smith asked Captain Bulos to

continue flying east and told the pilot “I’ll call your

base”—i.e., I will tell you when to turn toward the beginning of your landing. Shortly thereafter, Flight 662 flew

directly into a mountain east of the airport, outside of the

Class D airspace that was the tower’s zone of control, and

into terrain with which Smith was unfamiliar. This all occurred in the evening, when the mountains surrounding

Kabul are “jet black.” From these facts alone a jury could

find that Smith breached his duty of care.

To be sure, there is also evidence and testimony that

cut the other way. For instance, Smith did not know about

the problems with the plane’s avionics equipment. He told

Flight 662 to extend its downwind leg only after first asking if Bulos would be able to do so. And Bulos never indicated that he was having any difficulty carrying out his

duties under VFR.

Smith also did not give Flight 662 a specific vector—

Bulos appears responsible for what turned out to be the

flight’s final 116-degree heading. Smith also testified that,

contrary to the Plaintiffs-Appellants’ expert testimony,

“I’ll call your base” did not mean that the plane could not

turn until he told it do so. We think that sorting through

these facts to determine if Midwest failed to exercise reasonable care must, though, be left to a trier of fact.

The analysis is much the same with respect to proximate cause, which is ordinarily a question of fact for a

47a

jury. See, e.g., Benitez v. N.Y.C. Bd. of Educ., 73 N.Y.2d

650, 659 (1989) (“[I]ssues of proximate cause are generally

fact matters to be resolved by a jury.”). Flight 662

changed course to fly eastward in the direction of the

mountain after Smith asked Bulos to extend its downwind

leg. And the aircraft crashed just seconds after Smith told

Bulos to continue on the flight’s downwind leg and that he

would “call [Flight 662’s] base.” We do not think that, in

light of this evidence, the District Court could conclude as

a matter of law that Midwest’s conduct did not proximately cause the fatal crash.

Midwest asserts that Bulos must have been the sole

proximate cause of the crash because he was flying under

VFR and thus had exclusive responsibility for avoiding

the terrain. But as we explained with respect to the duty

of care, we decline to sanction a view of the law that exempts an air traffic controller from possible liability

where its unreasonable instruction leads a flight—even

one operating under VFR—into danger foreseeable to the

controller.

Midwest similarly urges that Bulos’s negligence severed any connection between Smith’s conduct and the

crash. Id. But as the New York Court of Appeals has explained: “When a question of proximate cause involves an

intervening act, ‘liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence.’ ” Hain v.

Jamison, 28 N.Y.3d 524, 529 (2016) (emphasis omitted)

(quoting Mazella v. Beals, 27 N.Y.3d 694, 706 (2016)).

Such a determination is normally a question for a factfinder, unless “only one conclusion may be drawn from the

established facts.” Id. (quoting Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315 (1980)). That is not the

case here. Midwest may be correct that the crash was not

48a

a foreseeable result of Smith’s instructions because Bulos

affirmed that he could extend his downwind leg and did

not indicate that he was having difficulty avoiding the terrain. But we think that a reasonable jury could also find

to the contrary that Smith should have foreseen that guiding the plane, at night, toward “jet black” terrain that he

was unfamiliar with (and that lay outside Class D airspace) would result in danger to Flight 662.

CONCLUSION

We have considered the parties’ remaining arguments

on appeal and conclude that they are without merit. For

the foregoing reasons, we VACATE the judgment of the

District Court and REMAND for further proceedings

consistent with this opinion.

49a

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

No. 12-CV-1066-FPG

Jessica T. BADILLA, et al.,

Plaintiffs,

v.

NATIONAL AIR CARGO INC., et al.,

Defendants.

Filed: January 14, 2020

DECISION AND ORDER

GERACI, Chief Judge.

This case arises from an October 2010 airplane crash

that occurred near Kabul Afghanistan International Airport. Plaintiffs are the personal representatives of six

crew members killed in the crash, who brought suit

against several entities alleged to be responsible. See generally ECF No. 95. The only remaining defendant is Midwest Air Traffic Control Service, Inc. (‘‘Midwest’’), a government contractor that provided air traffic control ser-

50a

vices at the airport. Plaintiffs allege that Midwest employed the air traffic controller who negligently instructed

the pilot and thereby caused the crash.1 Id. at 12-13.

Before the Court is the Report & Recommendation

(‘‘R&R’’) of United States Magistrate Judge Jeremiah J.

McCarthy, in which he recommends granting Midwest’s

motion for summary judgment. ECF No. 170. Plaintiffs

timely filed their objections to the R&R. See ECF Nos.

174, 176.

When a party makes specific objections to portions of

a magistrate judge’s R&R, the district court reviews

those portions de novo. Loc. R. Civ. P. 72(b); 28 U.S.C.

§ 636(b)(1)(C). An objection must ‘‘specifically identify’’

the portions of the R&R to which the party objects, and

provide a ‘‘basis for each objection’’ that is ‘‘supported by

legal authority.’’ Loc. R. Civ. P. 72(b).

Judge McCarthy granted Midwest’s motion for several independently dispositive reasons. Plaintiffs object to

each of those reasons. The Court need not address them

in detail, however, because each of Plaintiffs’ objections is

adequately addressed by Judge McCarthy’s comprehensive and well-reasoned R&R. It suffices to say that, even

after de novo review, the Court agrees with Judge McCarthy’s rejection of Plaintiffs’ arguments.

Accordingly, the Court ADOPTS Judge McCarthy’s

R&R (ECF No. 170) and GRANTS Midwest’s summary

judgment motion (ECF No. 155). The claims against Midwest, and Midwest’s counterclaim for indemnification, are

DISMISSED. Because this disposes of the only remain-

For a full summary of the underlying events, the Court refers the

reader to Magistrate Judge McCarthy’s thorough recitation of the

facts. See ECF No. 170 at 431-35.

1

51a

ing claims, the Clerk of Court shall enter judgment in accordance with this Order and the prior dispositive orders,

see ECF Nos. 120, 154, and shall close this case.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

McCARTHY, United States Magistrate Judge.

This action arises from the crash of National Airlines

Flight 662 (a/k/a TKU662) into a mountain near Kabul Afghanistan International Airport (‘‘KAIA’’) on October 12,

2010, while en route from Bagram Air Base. Before me is

the motion of defendant Midwest Air Traffic Control Service, Inc. (‘‘Midwest ATC’’) for summary judgment [155],

which has been referred to me for preparation of a Report

and Recommendation [13].1 Having reviewed the parties’

submissions [155, 162, 165, 166] and heard oral argument

on March 21, 2017 [167], I recommend that the motion be

granted.

I.

BACKGROUND

Plaintiffs, the alleged personal representatives of six

crew members killed in the crash, commenced this action

on October 2, 2012 by filing a Summons and Complaint in

State of New York Supreme Court, County of Erie [1-3],

asserting state law negligence claims.2 At the time of the

1

Bracketed references are to the CM/ECF docket entries.

The action was removed to this court based upon diversity jurisdiction, pursuant to 28 U.S.C. §§ 1332 and 1441 (Notice of Removal

[1], ¶12), federal officer jurisdiction, pursuant to 28 U.S.C.

§ 1442(a)(1) (Supplemental Notice of Removal [5], ¶11), and federal

enclave jurisdiction (id. ¶16). Concluding that diversity and federal

enclave jurisdiction were lacking, but that further development of the

2

52a

accident, Midwest ATC33 provided certain air traffic control services at KAIA pursuant to a subcontract with

Readiness Management Services, LLC (‘‘RMS’’), which

had a prime contract with the United States military for

those services. Midwest ATC’s Statement of Material

Facts [155-2], ¶¶15, 27, 36. Under the prime contract,

RMSW employees were designated ‘‘mission essential

personnel’’, and provided ‘‘mission critical capabilities

supporting joint services military personnel, host nation

military, and coalition forces, primarily in the [United

States Air Forces Central Command Area of Responsibility]’’. Id., ¶¶29-30. Correspondingly, Midwest ATC’s subcontract was governed by a Task Order, which stated that

its air traffic control services at KAIA were in support of

‘‘Operation Enduring Freedom’’, and that those services

were ‘‘part of an ‘essential contract service’—therefore

[its] personnel are designated as mission essential personnel’’. Midwest ATC’s Statement of Material Facts [155-2],

¶¶36-37; Task Order [155-31], p. 3 of 19.

record was necessary to determine whether federal officer jurisdiction existed, plaintiffs’ initial motion to remand was denied, without

prejudice. See September 30, 2013 Report, Recommendation and Order [50], adopted, October 21, 2013 Order [51]. Following the completion of limited jurisdictional discovery, plaintiffs filed a supplemental

motion to remand [60], which was denied. See October 23, 2014 Report

and Recommendation [71], adopted, November 13, 2014 Order [72].

The remaining defendants have been dismissed from the action.

See July 1, 2015 Report and Recommendation [92], adopted, August

20, 2015 Decision and Order [99] (granting the dismissal motion of

defendants Transafrik International Ltd. and Transafrik Corporation Ltd. (collectively ‘‘Transafrik’’)) and January 12, 2017 Text Order

[154] (approving the Stipulation of Order of Dismissal [153-2] filed by

defendants National Air Cargo, Inc., National Air Cargo Holdings,

Inc., National Air Cargo Group, Inc., and National Air Cargo - Middle

East FZE (collectively ‘‘NAC’’)).

3

53a

At the time of the accident, KAIA belonged to the Islamic Republic of Afghanistan and its air traffic control

tower was supervised by NATO. Plaintiffs’ Counterstatement of Material Facts [162-4], ¶102; Adams deposition

transcript [155-13], p. 43. Because there were not enough

NATO civilian air traffic controllers, United States Air

Force air traffic controllers filled those positions prior to

Midwest ATC. Adams deposition transcript [155-13],

p. 28.

The main purpose of the air traffic control tower at

KAIA was to train Afghans to take over responsibility for

the tower. Plaintiffs’ Counterstatement of Material Facts

[162-4], ¶113. Therefore, there were also Afghans and

NATO civilian controllers in the control tower who

trained during the day. Adams deposition transcript [15513], pp. 27-28. At night, Midwest ATC personnel took over

operations, but were not responsible for any training. Id.,

pp. 27-29. Most Midwest ATC controllers were retired

United States military members. Id., p. 29. Operational

control and direction of the KAIA air traffic control tower

came from the senior air traffic controller officer

(‘‘SATCO’’), a United States Air Force officer. Midwest

ATC’s Statement of Material Facts [155-2], ¶66; Hazrati

deposition transcript [155-10], pp. 17-20 (‘‘Basically

SATCO was the boss’’); Adams deposition transcript [15513], pp. 10-11. Under the Local Operating Procedures for

KAIA, air traffic services were provided according to the

Republic of Afghanistan Aeronautical Information Publication (‘‘AIP’’) and all related International Civil Aviation

Organization (‘‘ICAO’’) annexes and documents. Midwest

ATC’s Statement of Material Facts [155-2], ¶43.

Air traffic at KAIA was approximately 25% civil, and

the remaining 75% was combat and other operations, in-

54a

cluding the movement of troops and their supplies. Midwest ATC’s Statement of Material Facts [155-2], ¶53. Although KAIA was designated as a civilian airport (Stevenson deposition transcript [155-14], p. 65), the movement of

troops and armed combat aircraft were among KAIA’s

prime missions. Midwest ATC’s Statement of Material

Facts [155-2], ¶63. It is undisputed that the safe and efficient operation of the KAIA air traffic control tower, a pivotal hub, was central to the combat mission of the United

States and NATO. Id., ¶¶54, 62. KAIA was the subject of

insurgent attacks on monthly basis. Hazrati deposition

transcript [155-10], pp. 25-27; Adams deposition transcript [155-13], p. 53.

The pilot of TKU662, Henry Beltran Bulos, a former

Philippine Air Force pilot, was employed by defendant

Transafrik since 2000, and had flown in and out of KAIA

previously. Bulos deposition transcript [155-16], pp. 51-54;

Terrell deposition transcript [155-17], pp. 22, 27, 134. The

accident occurred on the last sortie of the day when

TKU622 was returning to KAIA without cargo. Terrell

deposition transcript [155-17], p. 134. The flight was operating under visual flight rules (‘‘VFR’’) en route to KAIA

(Midwest ATC’s Statement of Material Facts [155-2],

¶14), meaning that ‘‘[i]t’s the responsibility of air crew to

see and avoid hazards such as terrain and other aircraft’’.

Adams deposition transcript [155-13], p. 54; Terrell deposition transcript [155-17], p. 13.

Although it was uncommon to have VFR flights after

sunset, this was a designation chosen by the pilot. Midwest ATC’s Statement of Material Facts [155-2], ¶55; Adams deposition transcript [155-13], p. 55; Terrell deposition transcript [155-17], pp. 14-15. Because KAIA ‘‘resides

within a ‘bowl’ of mountains’’ (Midwest ATC’s Memorandum of Law [165], p. 14; Terrell deposition testimony [155-

55a

17], p. 64 (‘‘it’s a bowl, and you sort of go up in all directions to about 14-, 15,000 feet in some cases’’)), ‘‘it is difficult to fly VFR [at] nighttime’’. Hazarti deposition transcript [155-10], pp. 28-29; Terrell deposition transcript

[155- 17], pp. 63-64; Adams deposition transcript [155-13],

p. 39 (‘‘Flying into Kabul was not a place for amateurs’’).

However, it is undisputed that when a pilot made a VFR

flight into KAIA, it was the responsibility of the pilot and

his crew to see and avoid terrain and other aircraft. Midwest ATC’s Statement of Material Facts [155-2], ¶56.

TKU662 was equipped with a terrain avoidance warning system (‘‘TAWS’’), but the parties dispute whether it

was operational. Plaintiffs’ Counterstatement of Material

Facts [162-4], ¶¶24-25. After TKU662 departed from

Bagram for the approximately 10-minute flight to KAIA,

Bagram Approach Control instructed Mr. Bulos to ‘‘resume own navigation to Kabul’’ and ‘‘maintain VFR’’.

Plaintiffs’ Counterstatement of Material Facts [162-4],

¶¶142, 151. Darrell Smith, a retired United States Air

Force master sergeant and Midwest ATC employee, occupied the local controller position in the KAIA air traffic

control tower4 on the evening of October 12, 2010. Midwest ATC’s Statement of Material Facts [155-2], ¶¶77, 83.

The AIP designated the area of responsibility for local

controllers at KAIA as Class D airspace, which encompasses a radius of six nautical miles around KAIA and up

to 9,500 feet above sea level. Plaintiffs’ Counterstatement

of Material Facts [162-4], ¶143. Mr. Smith had a radar

presentation available to him that was used as a visual aid

for purposes of sequencing, but not as a control aid. Ad-

The other positions in the tower were ground control, flight

data/clearance delivery and watch supervisor. Plaintiffs’ Counterstatement of Material Facts [155-2], ¶129.

4

56a

ams deposition transcript [155-13], p. 31. He had no resources available to him in the air traffic control tower

that would alert him to the proximity of aircraft to terrain

features. Midwest ATC’s Statement of Material Facts

[155-2], ¶21.

Mr. Smith established radio contact with TKU662 at

14:58:05. Plaintiffs’ Counterstatement of Facts [162-4],

¶154. Typically, a VFR traffic pattern would be 1,500 feet

above KAIA, which itself was approximately 4,860 feet

above sea level. Terrell deposition transcript [155-17], p.

62; July 31, 2012 report of the National Transportation

Safety Board (‘‘NTSB’’) [162-9], p. 5 of 17. According to

Mr. Smith, the tower radar display was down at that time,

but he did not inform TKU662 of that fact. Plaintiffs’

Counterstatement of Material Facts [162-4], ¶¶195-96. He

gave TKU662 clearance to land at 14:58:50. Id., ¶156. At

that time, a civilian airline flight (Ariana 2748) was also on

approach to land at KAIA. Id., ¶157; Midwest ATC’s

Statement of Material Facts [155-2], ¶85. While controlling both aircraft, at some point Mr. Smith was able to see

their relative positions on the radar. Plaintiffs’ Counterstatement of Facts [162-4], ¶160. Judging that the two aircraft were on a relatively close approach, at 15:00:17 Mr.

Smith asked ‘‘TKU662. . . can you extend your downwind

sir’’? (i.e., continue parallel to the runway in the opposite

direction from the approach). Midwest ATC’s Statement

of Material Facts [155-2], ¶86; [169]. Mr. Bulos confirmed

that he could do so, and at no time advised Mr. Smith that

he anticipated any difficulty extending his downwind leg.

Midwest ATC’s Statement of Material Facts [155-2],

¶¶87-88.

Approximately five seconds after Mr. Bulos confirmed

that he could extend his downwind, Mr. Smith cancelled

the landing clearance for TKU662, and stated ‘‘make a left

57a

turn and . . . report established on your downwind you’ll

be number two to follow a airbus’’. Plaintiffs’ Counterstatement of Material Facts [162-4], ¶162; [169]. According to the NTSB report [162-9], that led TKU662 ‘‘directly

into the terrain it would impact’’. Id., p. 9 of 17. It is not

evident whether Mr. Smith stated ‘‘make a left turn’’ when

TKU662 was outside of Class D airspace or whether that

instruction took TKU662 out of ‘‘Class D’’ airspace. Plaintiffs’ Counterstatement of Material Facts [162-4], ¶¶165,

167. In any event, it is undisputed that Mr. Smith never

informed Mr. Bulos that he was out of Class D airspace.

Id., ¶168.

At 15:01:47 Mr. Smith stated ‘‘TKU662 continue downwind I’ll call your base’’ (i.e., advise when Ariana 2748 had

progressed sufficiently to permit TKU662 to land). Plaintiffs’ Counterstatement of Material Facts [162-4], ¶169;

Midwest ATC’s Statement of Material Facts [155-2], ¶94.

The parties sharply dispute whether that statement was

an Air Traffic Control Instruction as defined by the AIP,5

which would have required any deviation from that instruction to be cleared by air traffic control absent a declared emergency. Plaintiffs’ Counterstatement of Material Facts [162-4], ¶¶169, 177. During that same transmission, Mr. Smith also stated that the ‘‘traffic you’re following is . . . now at your three o’clock’’ [169].

Mr. Smith testified that within seconds of his last communication with TKU662, which occurred at 15:01:53 (six

seconds after Mr. Smith stated ‘‘I’ll call your base), he saw

a fireball. Smith deposition transcript [155-19], p. 59;

[169]. TKU662 impacted a mountain at 7,874 feet above

sea level, approximately 10 to 12 miles away from KAIA.

The AIP [155-36] defines Air Traffic Control Instructions as being

‘‘[d]irectives issued by air traffic control for the purpose of requiring

a pilot to take a specific action’’. Id., p. 29 of 211, § Gen. 2.2.

5

58a

NTSB Report [162-9], p. 1; plaintiffs’ Counterstatement

of Material Facts [162-4], ¶148. It is undisputed that the

air traffic tower radar presentation did not display the altitude of TKU662 and Mr. Smith did not assign an altitude

to TKU662. Midwest ATC’s Statement of Material Facts

[155-2], ¶¶91, 93. However, the local controllers were expected to be aware of the minimum safe altitudes for aircraft operating in their area. Plaintiffs’ Counterstatement

of Material Facts [162-4], ¶139.

Midwest ATC’s counsel confirmed at oral argument

that it was dark at the time of the crash (approximately

7:30 p.m. local time). The NTSB’s accident report [162-9]

stated that it was ‘‘difficult to determine how much illumination the stars provided due to the haze, but the moon,

due to its low position in the sky and waxing crescent size,

would have provided limited additional light’’. Id., p. 13 of

17. Consistent with the conditions, Mr. Smith did not visually observe TKU662 while communicating with it. Plaintiffs’ Counterstatement of Material Facts [162-4], ¶200.

Plaintiffs allege that Midwest ATC was negligent by

instructing TKU662 to ‘‘to execute an approach downwind

. . . when it knew or should have known such instruction

was unsafe and dangerous’’; failing ‘‘to provide . . . a warning [that TKU662] was below the minimum safe altitude’’;

failing ‘‘to provide necessary instruction to keep a safe and

proper separation . . . [from] the surrounding terrain’’;

failing ‘‘to inform [TKU662] of discrepancies between actual altitude indications available to the controllers and

the reported altitude from the flight crew’’; failing ‘‘to inquire, instruct or warn the crew . . . of a defective or malfunctioning transponder during the control of the flight’’;

and/or failing ‘‘to provide proper and safe instructions,

warnings, and/or other air traffic control services to

[TKU662]’’. Amended Complaint [95], ¶39. Midwest ATC

59a

has counterclaimed against the estate of Mr. Bulos for indemnification. Amended Answer with Counterclaim [112],

¶¶34-43.

II. ANALYSIS

Midwest ATC raises two arguments in support of its

motion: first, that plaintiffs’ claims are preempted under

the ‘‘combatant activities’’ exception to the Federal Tort

Claims Act (‘‘FTCA’’); and second, that it had no duty to

provide terrain separation, which is the sole duty of a pilot

flying under VFR. Midwest ATC’s Memorandum of Law

[155-3], Points I and II.

A. Summary Judgment Standard

‘‘The standards governing summary judgment are

well-settled. Summary judgment is appropriate only if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits show that

there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of

law. The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact

exists. In determining whether a genuine issue of material

fact exists, a court must examine the evidence in the light

most favorable to, and draw all inferences in favor of, the

non-movant. Summary judgment is improper if there is

any evidence in the record that could reasonably support

a jury’s verdict for the non-moving party.’’ Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003).

B. Are Plaintiffs’ Claims Preempted by the FTCA’s Combatant Activities Exception?

The FTCA abrogates the government’s sovereign immunity for state-law torts committed by its employees

(see 28 U.S.C. § 1346(b)(1)), but carves out certain exceptions, including the combatant activities exception, which

60a

preserves the government’s immunity for ‘‘[a]ny claim

arising out of the combatant activities of the military . . .

during time of war’’. 28 U.S.C. § 2680(j). Since ‘‘government contractors are expressly excluded from the scope

of the FTCA’’, Aiello v. Kellogg, Brown & Root Services.,

Inc., 751 F. Supp. 2d 698, 706 (S.D.N.Y. 2011), Midwest

ATC instead argues that plaintiffs’ claims are preempted

by federal law because imposing tort liability ‘‘would critically undermine the federal interest the combatant activities exception to the [FTCA] was intended to protect,

namely the elimination of tort law from the battlefield’’.

Midwest ATC’s Memorandum of Law [155-3], p. 6.

In support of its preemption argument, Midwest ATC

relies upon Boyle v. United Technologies Corp., 487 U.S.

500 (1988). Midwest ATC’s Memorandum of Law [155-3],

pp. 7-8. There, a Marine helicopter co-pilot drowned when

he was unable to escape from the submerged aircraft because the escape hatch—designed pursuant to government specifications—opened outward, rather than inward. Boyle, 487 U.S. at 503. Addressing the circumstances under which ‘‘a contractor providing military

equipment to the Federal Government can be held liable

under state tort law for injury caused by a design defect’’,

the Court applied the doctrine of conflict preemption,

which allows state law to be preempted ‘‘[in] a few areas,

involving ‘uniquely federal interests’ ’’, when ‘‘a ‘significant conflict’ exists between an identifiable ‘federal policy

or interest and the operation of state law’ . . . or the application of state law would ‘frustrate specific objectives’ of

federal legislation’’. Id., 504, 507.6

In addition to conflict preemption, there is ‘‘express preemption,

where Congress has expressly preempted local law’’ and ‘‘field

preemption, where Congress has legislated so comprehensively that

federal law occupies an entire field of regulation and leaves no room

6

61a

Applying that test, the Court held that the ‘‘uniquely

federal interests’’ implicated were ‘‘the civil liabilities arising out of the performance of federal procurement contracts’’ (id., 506), explaining that ‘‘either the contractor

will decline to manufacture the design specified by the

Government, or it will raise its price. Either way, the interests of the United States will be directly affected’’ Id.,

507. It then concluded that a significant conflict existed

between the federal policy, as embodied in the discretionary function exception to the FTCA,7 and state law because the ‘‘the state-imposed duty of care that is the asserted basis of the contractor’s liability (specifically, the

duty to equip helicopters with the sort of escape-hatch

mechanism petitioner claims was necessary) is precisely

contrary to the duty imposed by the Government contract

(the duty to manufacture and deliver helicopters with the

sort of escape hatch mechanism shown by the specifications)’’. Id., 509. To limit the scope of displacement of state

law, the Court crafted the government contractor defense, which precludes liability pursuant to state law when

‘‘(1) the United States approved reasonably precise specification; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about

the dangers in the use of the equipment that were known

of the supplier but not to the United States’’. Id., 512.

The Court has described Boyle as a ‘‘special circumstance’’ that applies ‘‘where the government has directed

for state law’’. New York. SMSA Limited Partnership v. Town of

Clarkstown, 612 F.3d 97, 104 (2d Cir. 2010).

The discretionary function exception of the FTCA preserves immunity for ‘‘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).

7

62a

a contractor to do the very thing that is the subject of the

claim’’. Correctional Services. Corp. v. Malesko, 534 U.S.

61, 74 n.6 (2001). See also Harduvel v. General Dynamics

Corp., 878 F.2d 1311, 1317 (11th Cir. 1989) (‘‘Boyle, by its

terms, applies only to defects in design’’). However, its

analysis has been extended to the combatant activities exception of the FTCA to preempt negligence claims against

government contractors. It was initially applied in Koohi

v. United States, 976 F.2d 1328 (9th Cir. 1992) to preempt

claims against defense contractors for an allegedly defective missile defense system that caused a civilian aircraft

to be shot under the rationale ‘‘that one purpose of the

combatant activities exception is to recognize that during

wartime encounters no duty of reasonable care is owed to

those against whom force is directed as a result of authorized military action’’. Id., 1337.

Application of Boyle was then extended beyond the

product liability context in Saleh v. Titan, 580 F.3d 1 (D.C.

Cir. 2009), where Iraqi nationals alleged that they were

abused by military contractors who provided interrogation and interpretation services to the government at the

Abu Ghraib military prison during the war in Iraq. Although drawing upon the Boyle preemption analysis, Saleh

recognized that the area of conflict between state law and

the federal interests associated with the combatant activities exception of the FTCA, which ‘‘casts an immunity net

over any claim that arises out of combatant activities’’ (id.,

p. 6 (emphasis in original)), was much broader than the

conflict rising from the discretionary function exception

addressed in Boyle:

‘‘The nature of the conflict in this case is somewhat different from that in Boyle—a sharp example of discrete

conflict in which satisfying both state and federal duties (i.e., by designing a helicopter hatch that opens

63a

both inward and outward) was impossible. In the context of the combatant activities exception . . . . it is the

imposition per se of the state or foreign tort law that

conflicts with the FTCA’s policy of eliminating tort

concepts from the battlefield. The very purposes of

tort law are in conflict with the pursuit of warfare.

Thus, the instant case presents us with a more general

conflict preemption, to coin a term, ‘battle-field

preemption’: the federal government occupies the

field when it comes to warfare, and its interest in combat is always ‘precisely contrary’ to the imposition of a

non-federal tort duty.’’ Id., p. 7.8

In tailoring the scope of displacement of the state law

‘‘so as to coincide with the bounds of the federal interest

being protected’’, Saleh held that: ‘‘[d]uring wartime,

where a private service contractor is integrated into combatant activities over which the military retains command

authority, a tort claim arising out of the contractor’s engagement in such activities shall be preempted.’’ Id., pp.

8-9.

Although the Second Circuit has not addressed this issue, the Third and Fourth Circuits—joining the D.C. and

Ninth Circuits, as well as one district in this Circuit, have

applied the reasoning of Boyle to the combatant activities

exception of the FTCA. See Harris v. Kellogg Brown &

Root Services, Inc., 724 F.3d 458, 480 (3d Cir. 2013); In re

KBR, Inc., Burn Pit Litigation, 744 F.3d 326, 350-51 (4th

Cir 2014)); Aiello, 751 F. Supp. 2d at 707-11.

Although ‘‘battle-field preemption’’ is more appropriately characterized as a ‘‘type of field preemption’’, it has been recognized that it

‘‘is a rational extension of Boyle, which itself suggested that such areas of field preemption would exist’’. Aiello, 751 F. Supp. 2d at 71011.

8

64a

1. Should Boyle’s Preemption Analysis Be Applied

Here?

Plaintiffs argue that the court should ‘‘decline to follow

those cases that expand sovereign immunity of the Government beyond the holding of [Boyle]’’, noting that expansion of the FTCA’s combatant activity exception to

private contractors ‘‘is more properly left to Congress’’.

Plaintiffs’ Memorandum of Law [162], pp. 8, 12. They

point to two decisions—both prior to Saleh—that rejected

the application of the preemption analysis of Boyle to the

combatant activities exception. In McMahon v. Presidential Airways, Inc., 460 F. Supp. 2d 1315, 1330 (M.D. Fla.

2006), aff’d on other grounds, 502 F.3d 1331 (11th Cir.

2007), the court explained that it:

‘‘find[s] no persuasive authority for the conclusion that

the combatant activities exception preempts state tort

law claims. The combatant activities exception to the

FTCA is an explicit legislative preservation of sovereign immunity, while the government contractor defense is a judicially recognized affirmative defense,

grounded in federal preemption and the discretionary

function exception to the FTCA. The latter defense

shields contractors only in military equipment procurement contracts and only when the government

dictates design specifications. Private contractors are

not entitled to sovereign immunity unless they are

characterized as government employees, which Defendants are not . . . . There is no express authority

for judicially intermixing the government contractor

defense and the combatant activities exception; nor is

there authority for bestowing a private actor with the

shield of sovereign immunity. Until Congress directs

otherwise, private, non-employee contractors are limited to the government contractor defense and Boyle’s

65a

preemption analysis. Unless they qualify as employees

or agents of the Government, private contractors may

not bootstrap the Government’s sovereign immunity.’’

See also Fisher v. Halliburton, 390 F. Supp. 2d 610, 616

(S.D. Tex. 2005) (‘‘[p]laintiffs’ claims in this case do not involve any allegation that Defendants supplied equipment,

defective or otherwise, to the United States military. The

Court concludes that extension of the government contractor defense beyond its current boundaries is unwarranted and the FTCA does not bar Plaintiffs’ claims’’).

Plaintiffs also rely upon the dissent in Saleh, which

similarly argued that ‘‘Congress knows full well how to

make its intention to preclude private liability known’’,

but ‘‘has not done so here’’. 580 F.3d at 26 (Garland, J.,

dissenting). The dissent further argued that courts should

‘‘hesitate to extend Boyle beyond the scope of the discretionary function exception and direct-conflict rationale’’ it

employed, explaining that ‘‘[a]t the heart of Boyle’s analysis is the doctrine of conflict preemption. . . . [P]reemption under the discretionary function exception is in accord with that doctrine, as it requires ‘a sharp example of

discrete conflict in which satisfying both state and federal

duties (i.e., by designing a helicopter hatch that opens

both inward and outward) was impossible.’ . . . By contrast, preemption under the combatant activities exception is extraordinarily broad; . . . it results not in conflict

preemption but in ‘field preemption.’ ’’ Id. 21, 23.

Faced with these conflicting authorities—none of

which are controlling—I am most persuaded by the

weight of authority supporting the application of Boyle to

the combatant activities exception of the FTCA, especially post-Saleh. Although it is unclear whether the Supreme Court intended its analysis in Boyle to extend be-

66a

yond the design defect context and the discretionary function exception of the FTCA, the preemption principles

that underlie Boyle and Saleh are not new. Nor do plaintiffs persuasively argue against the application of preemption here. While they contend—like in McMahon and the

dissent in Saleh—that the task of expanding the FTCA’s

combatant activity exception to private contractors

should be left to Congress (plaintiffs’ Memorandum of

Law [162], p. 12), Midwest ATC is not seeking a grant of

sovereign immunity under the FTCA, but rather is relying on the doctrine of preemption. See Rodriguez v. Lockheed Martin Corp., 627 F.3d 1259, 1265-66 (9th Cir. 2010)

(‘‘[a]lthough the source of the government contractor defense is the United States’ sovereign immunity . . . the

government contractor defense does not confer sovereign

immunity on contractors’’).

Plaintiffs also argue that no conflict with an identifiable federal policy exists here because ‘‘there are no issues

that potentially implicate military decision making or

judgment sought to be protected and promoted in Boyle,

or any of the other cases that address the manufacture

and supply of military hardware and sophisticated weaponry’’. Plaintiffs’ Memorandum of Law [162], p. 11. However, that argument ignores that broad field preemption

which flows from the federal interest embodied in combatant activities exception of eliminating ‘‘ ‘tort from the battlefield’ ’’, which ‘‘suggests that any non-federal substantive negligence law will cause ‘significant conflict’ with

that interest.’’ Aiello, 751 F. Supp. 2d at 710.

In any event, even absent the broad field preemption

of the combatant activities exception (see Aiello, 751 F.

Supp. 2d at 710-11), plaintiffs’ claims against Midwest

ATC in this case implicate military decision making and

judgment. As argued by Midwest ATC, it is undisputed

67a

that the equipment available to its controllers in the KAIA

air traffic controller tower was supplied by the United

States military, and that at the time of the accident there

were no resources in the tower that alerted the controllers

to the proximity of an aircraft to a specific terrain feature.

Midwest ATC’s Reply Memorandum of Law [165], pp. 78; Statement of Material Facts [155-2], ¶¶21, 31-32. The

prime contract between RMS and the United States also

stated that the work would be provided in accordance various guidelines, including the ICAO standards, which

make clear that ‘‘[t]he objectives of the air traffic control

service . . . do not include prevention of collision with terrain. The procedures prescribed in this document do not

relieve pilots of their responsibility to ensure that any

clearances issued by air traffic control units are safe in

this respect.’’ ICAO 4444 [155-39], p. 106 of 223, § 5.9,

Note 3.

Therefore, the core of the plaintiffs’ claim—that Midwest ATC failed to provide terrain separation services to

flight TKU662—at least partially implicates the military’s

decision to not equip the KAIA air traffic control tower

with resources to provide that service or to adopt guidelines that made terrain separation the responsibility of the

controllers.

2. Do the Activities in This Case Qualify as Combatant Activities?

Alternatively, plaintiffs argue that even if the combatant activity exception of the FTCA could be applied to

preempt negligence claims against civilian contractors,

‘‘the facts of th[is] . . . case are not the type of incidental

activity that should qualify as ‘combatant activity’ for purposes of the FTCA and preemption of [their] claims’’.

Plaintiffs’ Memorandum of Law [162], p. 12. Courts have

adopted an expansive definition of ‘‘combatant activity’’ as

68a

used in the FTCA, to ‘‘include not only physical violence,

but activities both necessary to and in direct connection

with actual hostilities’’. Johnson v. United States, 170

F.2d 767, 770 (9th Cir. 1948). For example, in Aiello, the

plaintiff was injured when he fell in a latrine facility located on a ‘‘forward operating base’’ in Iraq. 751 F. Supp.

2d at 701. There, the court found that the plaintiff’s claim

arose from a combatant activity, since the defendant, who

operated and maintained the latrine facility, provided

‘‘basic life support services for active military combatants

on a forward operating base’’ and its creation and maintenance of the latrine constituted ‘‘active logistical support

of combat operations, both necessary to and in direct connection with actual combat’’. Id., 702, 712-13. Also relevant

to the court’s determination was the fact that the base was

subject to actual hostilities in the form of nearby mortar

and rocket attacks. Id., 713. Similarly in Harris, the court

held that the ‘‘maintenance of electrical systems at a barracks in an active war zone qualifies as integration into the

military’s combatant activities’’. 724 F.3d at 481.

Plaintiffs press for a narrower test that focuses solely

on the conduct undertaken at the time of the crash, arguing that ‘‘[t]he crash . . . was not caused by any activity or

involvement in combatant activities; rather, it was caused

by the Tower Controller’s error in providing air traffic

control services to a civilian cargo plane while simultaneously providing control services to a commercial airliner. . . . [A]ll three of the controllers in the tower of a civilian airport . . . were civilian Midwest ATC employees

and the only aircraft that they were providing control services for were civilian owned and operated and performing civil flights’’. Plaintiffs’ Memorandum of Law [162], p.

13. However, that argument ignores the plain wording of

the Saleh test, which focuses on the activities of the military by broadly requiring the contractor to be ‘‘integrated

69a

into combatant activities’’, rather than more narrowly requiring the contractor to be conducting combatant activities. See Aiello, 751 F. Supp. 2d at 715 (‘‘[b]ecause plaintiff’s claim . . . arises from combatant activity of the military . . . [it] is preempted’’ (emphasis added)).9

Plaintiffs’ reliance on Brokaw v. Boeing Company, 137

F. Supp. 3d 1082 (N.D. Ill. 2015) (plaintiffs’ Memorandum

of Law [162], p. 10) does not compel a different result. As

in this case, Brokaw involved the crash of a government

contractor’s plane in Afghanistan operated pursuant to a

contract between the government and NAC. 137 F. Supp.

3d at 1089. The crash, which occurred while the plane departed from Bagram Air Base on re-fueling stop, was

caused by the military cargo aboard breaking loose from

its moorings and penetrating a bulkhead. Id.

Addressing whether the case was properly removed

under federal officer jurisdiction, the court concluded that

remand was warranted since NAC had failed to meet the

third of four elements necessary to establish federal officer jurisdiction, namely whether there was a casual

nexus between the federal authority and the conduct challenged. Id., pp. 1096, 1099. While acknowledging that that

conclusion ‘‘ended the inquiry’’, it continued ‘‘[f]or the

sake of completeness’’ to consider the final element:

whether NAC had established a colorable federal defense.

Id., p. 1099. Among the defenses it analyzed was the combatant activities exception. In concluding that it did not

provide a colorable defense, the court assumed, without

deciding, that the combatant activities exception applied

to private contractors, but rejected the argument that

NAC was engaged in a combatant activity: ‘‘the activities

It is unnecessary for me to address the other prong of the Saleh

test (i.e., whether the military retained command authority), which is

unchallenged by plaintiffs.

9

70a

NAC engaged in that gave rise to this lawsuit ‘cannot logically be cataloged’ as combatant. . . . NAC’s role was

simply to transport cargo. Admittedly, it was carrying

military equipment and operating in a war zone, but it was

not aiding the military in swinging the ‘sword of battle’; in

essence, it was helping National Airlines carry the sword

for the military’s later use. . . . This is not the type of incidental activity that should qualify as ‘combatant’ for purposes of the FTCA.’’ Id., p. 1106. The court also distinguished both Saleh and Aiello ‘‘as they involved paramilitary personnel or activities that were much closer to actual hostilities’’. Id.

While the limited facts (and analysis) presented in

Brokaw appear to support plaintiffs’ position, it was only

in dicta that the court analyzed the combatant activities

exception. See Paul v. Gonzales, 444 F.3d 148, 155 (2d Cir.

2006) (treating an analysis conducted in the interest of

completeness as dicta). In addition, while the court relied

upon the lack of close proximity between NAC’s activities

and actual hostilities to distinguish Saleh and Aiello, it is

undisputed that KAIA was subject to insurgent attacks.

See Hazrati deposition transcript [155-10], pp. 25-27; Adams deposition transcript [155-13], p. 53.

Therefore, I conclude that plaintiffs’ claims are

preempted, and recommend that Midwest ATC’s motion

be granted on that basis. However, recognizing that without any controlling authority from the Supreme Court or

Second Circuit addressing the expansion of Boyle’s

preemption analysis to the considerably broader combatant activities exception of the FTCA, the state of the law

71a

remains unsettled,10 I will also analyze Midwest ATC’s alternative ground for dismissal.

C. Is Midwest ATC Liable for the Accident Under Common Law?

‘‘Under New York law, the elements of a negligence

claim are: (i) a duty owed to the plaintiff by the defendant;

(ii) breach of that duty; and (iii) injury substantially

caused by that breach.’’ Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir. 2002). Midwest ATC

argues that plaintiffs’ negligence claims must be dismissed, since terrain separation is the sole duty of the pilot flying under VFR, and that Mr. Bulos’ failure to uphold

his VFR responsibilities was the sole proximate cause the

accident. Midwest ATC’s Memorandum of Law [155-3],

Point II.

1. Did Midwest AT Have Any Duty to TKU662 for Terrain Separation?

“While general negligence law applies to airline tort

cases . . . the standard of due care is concurrent, resting

upon both the airplane pilot and ground aviation personnel. Both are responsible for the safe conduct of the aircraft.’’ Spaulding v. United States, 455 F.2d 222, 226 (9th

Cir. 1972); Redhead v. United States, 686 F.2d 178, 182

See Major Jeffrey B. Garber, The (Too) Long Arm of Tort Law:

Expanding the Federal Tort Claims Act’s Combatant Activities Immunity Exception to Fit the New Reality of Contractors on the Battlefield, Army Law, September 2016, *19 (‘‘the state of the law remains unpredictable and unevenly applied’’); McManaway v. KBR,

Inc., 554 Fed. Appx. 347, 353 (5th Cir. 2014) (Jones, J., dissenting)

(‘‘the scope of this exemption must be determined by the Supreme

Court’’).

10

72a

(3d Cir. 1982) (‘‘[b]oth the pilot and the air traffic controller owe a duty of care to passengers in an airplane’’).11 Although the duty of care is concurrent, ‘‘the pilot has final

authority, even over air traffic controllers’’. In re: Air

Crash Near Rio Grande, Puerto Rico, on Dec. 3, 2008,

2016 WL 6916600, *4 (S.D. Fla. 2016). ‘‘Necessarily, the

pilot’s knowledge of his own, his crew’s, and his aircraft’s

capabilities and limitations, is of preeminent importance

in this cooperative situation. None of these matters can be

known by [air traffic control]’’. Turner v. United States,

736 F. Supp. 2d 980, 1000 (M.D.N.C. 2010). Nor are air

traffic controllers ‘‘to get into the cockpit and fly the plane

for the pilot’’, United States Aviation Underwriters Inc.

v. United States, 682 F. Supp. 2d 761, 768 (S.D. Tex. 2010),

or ‘‘presumed to have X-ray vision and extrasensory perception’’. Biles v. United States, 848 F.2d 661, 663 (5th Cir.

1988).

Notwithstanding these limitations, controllers remain

‘‘under a duty to provide certain information and warnings to the pilot so that he has the opportunity to make a

competent decision as to the operation of his aircraft’’.

Richardson v. United States, 372 F. Supp. 921, 925-26

(N.D. Cal. 1974). See also Webb v. United States, 840 F.

Supp. 1484, 1514 (D. Utah 1994) (‘‘[c]ontrollers have the

Both parties evaluate plaintiffs’ negligence claims under New

York law and make no argument that it conflicts with the law of any

other applicable jurisdiction. Therefore, I have applied New York

law. See Clarkson Co. v. Shaheen, 660 F.2d 506, 512 n.4 (2d Cir. 1981)

(‘‘none of the parties claimed the applicability of Canadian law or asserted that it differs from that of New York. Each seems to have assumed that New York law governs. Hence, the district court was not

obligated to take judicial notice of Canadian law and correctly applied

forum law’’); Corporacion Venezolana de Fomento v. Vintero Sales

Corp., 452 F. Supp. 1108, 1112 n.3 (S.D.N.Y. 1978) (applying New

York law where ‘‘the parties have not sought to prove Venezuelan law

. . . or asserted that it is in conflict with the law of New York’’).

11

73a

responsibility to promote the safe, orderly, and expeditious flow of air traffic’’); Redhead, 686 F.2d at 182 (controllers ‘‘are often a source of vital information’’ to the pilots). ‘‘[T]he key element in distinguishing the respective

duties of pilot and [air traffic controllers] relates to the

ability of the former to perceive a potential danger without assistance from the latter. As a result, a balancing process is involved—the vantage point of the pilot will be

weighed against the Tower’s superior knowledge or

awareness of the pilot’s danger.’’ Richardson, 372 F.

Supp. at 926. Thus, ‘‘[e]ven if a controller issues a wrong

heading or instruction, the pilot has the ‘primary duty to

avoid a hazard that he himself could or should have perceived.’ ’’ Airplanes of Boca, Inc. v. United States of

America, 254 F. Supp. 2d 1304, 1312 (S.D. Fla. 2003).

[9, 10] ‘‘The nature and extent of an air traffic controller’s duty of due care to pilots is a question of law.’’ First

of America Bank-Central v. United States, 639 F. Supp.

446, 455 (W.D. Mich. 1986); Palomo v. United States, 2000

WL 33935645, *11 (S.D. Miss. 2000), aff’d, 45 Fed. App’x

325 (5th Cir. 2002). It is measured by the ‘‘1) applicable

. . . manuals and 2) a common law duty of reasonable

care’’. Wojciechowicz v. United States, 576 F. Supp. 2d

241, 272 (D.P.R. 2008), aff’d 582 F.3d 57 (1st Cir. 2009).

Midwest ATC argues that ‘‘neither the international

standards that defined [its] duties, nor the common law

duty of reasonable care, imparted a duty on [it] to provide

terrain separation services to a VFR aircraft’’. Midwest

ATC’s Memorandum of Law [155-3], p. 28. In contrast to

a flight under instrument flight rules, where ‘‘it is presumed that pilots are unable to see either other aircraft or

the ground and are guided by air traffic controllers’’, it is

generally recognized that a pilot flying under VFR ‘‘directs his aircraft according to what he can see, navigating

74a

from place to place according to visual cues outside his aircraft’’. Redhead, 686 F.2d at 180 n.1. That principle is embodied in the controlling documents. As discussed above,

ICAO 4444 states that ‘‘[t]he objectives of the air traffic

control service as prescribed in Annex 11 do not include

prevention of collision with terrain. The procedures prescribed in this document do not relieve pilots of their responsibility to ensure that any clearances issued by air

traffic control units are safe in this respect.’’ [155-39], p.

106 of 223, § 5.9, Note 3. Similarly, the AIP provides that

‘‘[u]ltimate responsibility for . . . terrain avoidance rests

with the pilot’’. [155-36], p. 87 of 211, § 3.1.5.3. Although

plaintiffs point to other provisions in the controlling documents as establishing that the controllers at KAIA had a

responsibility for terrain separation, their expert, Julia

Harvey, acknowledged that the controlling documents do

not specifically set forth that responsibility. Harvey deposition transcript [155-23], pp. 43- 44. While their other

expert, Colin Sommer, testified that Section 2.2 of Annex

11 to ICAO 4444, which sets forth the general objective of

air traffic control to provide advice and information useful

for the safe and efficient conduct of flights, encompasses

the controller’s responsibility for terrain separation

(Sommer deposition transcript [155-25], p. 39), that interpretation is expressly contradicted by ICAO 4444, which

states that ‘‘[t]he objectives of the air traffic control service as prescribed in Annex 11 do not include prevention

of collision with terrain’’. [155-39], p. 106 of 223, § 5.9, Note

3 (emphasis added).

Consistent with the controlling documents setting

forth the responsibilities of local controllers at KAIA,

‘‘[t]he case law is incontrovertible that an aircraft operating pursuant to [VFR] must provide its own navigation

and clearance from obstructions. The duty to operate the

aircraft, and to navigate, is assigned to the pilot who must

75a

provide his own separation from obstructions . . . while in

VFR conditions.’’ In re: Air Crash Near Rio Grande,

Puerto Rico, 2016 WL 6916600, *5; Webb, 840 F. Supp. at

1513 (‘‘[d]uring a VFR flight, the pilot has the responsibility to provide his own separation from obstructions’’);

McDaniel v. United States, 553 F. Supp. 910, 916 (N.D.

Cal. 1982) (‘‘[a]s a VFR pilot, Dr. McDaniel had no right,

and could not reasonably expect, to rely on ‘outside input’

from the ATC to provide his separation from terrain’’).

Nevertheless, the fact that ‘‘[a]voiding terrain is the

VFR pilot’s continuing responsibility and that responsibility cannot be delegated in whole or in part to air traffic

control . . . this does not relieve an [air traffic controller]

from issuing a safety alert if he is aware that the aircraft

is at an altitude which, in the controller’s judgment, places

the aircraft in unsafe proximity to terrain obstructions or

other aircraft’’. Wojciechowicz, 576 F. Supp. 2d at 253

(emphasis in original). See In re: Air Crash Near Rio

Grande, Puerto Rico, 2016 WL 6916600, *8 (‘‘[t]he duty to

issue a terrain alert arises if a controller is aware that an

aircraft is in unsafe proximity to terrain’’ (emphasis in

original)). See also Turner v. United States, 736 F. Supp.

2d 980, 1008 (M.D.N.C. 2010) (‘‘[c]ourts have found that

air traffic controllers have a common law duty to issue

warnings beyond those required by the manuals in the following situations: (1) when danger to the aircraft is immediate and extreme . . . ; (2) when the air traffic controller

is able to gather more information or make more accurate

observations than the pilot . . . ; (3) when the controller is

better qualified than the pilot to evaluate the danger. . . ;

(5) when danger is ‘reasonably apparent’ to the controller

but not apparent, in the exercise of due care, to the pilot

. . . ; and (6) when the controller has conveyed dangerously

inaccurate or misleading information to the pilot’’).

76a

Applying these principles, plaintiffs argue that Mr.

Smith assumed a shared duty for terrain separation when

he ‘‘took positive control of the TKU662 through the issuance of Air Traffic Control Instructions concerning the

flight path of TKU662 and that he was then negligent in

the control he exercised outside of his ‘Class D’ area of

authority and in the instructions that he gave and failed to

give, to TKU662 which contributed to its controlled flight

into terrain’’. Plaintiffs’ Memorandum of Law [162], p. 16.

However, that theory is not supported by the following

testimony of Ms. Harvey—plaintiffs’ own expert:

‘‘A. . . . [M]y opinion is that he was under the . . . instruction of the controller being I will call your base,

that’s a very powerful instruction that the controller is

giving that pilot.

Q. But you agree with me that in the meantime, until

his base was called, the VFR pilot’s duty is to maintain

a separation from terrain; correct?

A. It’s his duty to maintain a separation against terrain.’’ Harvey deposition transcript [155-23], pp. 56-57.

...

‘‘Q. But [Mr. Bulos] never indicated back to the tower,

I’m forfeiting my responsibilities as a VFR pilot . . . .

A. No. . . . But VFR pilots can still be controlled, and

they don’t have to then go, all right am I IFR now. You

can still be VFR and accept a vector, accept identification, accept a height change, a level change, altitude

change.

Q. And at all times it needs to be VFR, however. He

has the sole and exclusive responsibility to separate

himself from terrain; correct?

A. Correct.’’ Id., pp. 116-17.

77a

Nevertheless, plaintiffs’ position does find support in

the following testimony from their other expert, Mr. Sommer:

‘‘Q. . . . An aircraft operating pursuant to [VFR]

must provide its own navigation and clearance from

obstructions. Do you agree with that statement . . . ?

A. I agree with it in that they should be navigating the

airplane, but when they are being controlled, then

they are under the direction of air traffic control. Air

traffic control is giving them instruction. They can’t

just deviate from that instruction.

Q. There was never an instruction given to this aircraft

. . . to fly according to a specific vector, or a specific

compass direction, was there?

A. I would have to disagree with you with that. He was

instructed to fly downwind at the heading of one one

zero after making a left turn’’. Sommer deposition

transcript [155-25], pp. 69-70.

...

Q. It’s always the pilot’s responsibility to determine

his spatial relationship to his terrain?

A. It is not the pilot’s sole responsibility. It is also the

responsibility of the controller not to direct him to fly

into the side of that mountain.’’ Id., pp. 71-72.

...

Q. . . . Do the [authorities] that are given credence in

the aviation industry define VFR as principally the

sole responsibility of the pilot to see and avoid terrain

and other aircraft?

78a

[A.] Final authority is the word that is used most often;

not sole responsibility. It’s a shared responsibility between the pilot and the controller, if he’s under air

traffic control.’’ Id., p. 95.

...

Q. Was there ever any information shared, at any point

during this flight, that gave the tower controller reason to believe that the pilot could not maintain his separation from terrain?

[A.] The pilot never indicated that he wasn’t able to do

so, but he wasn’t asked, either. The pilot conducted the

flight in accordance with his own navigation per the instruction that he got . . . when he initially departed

Bagram. Then his own navigation was taken away

from him at the point where his clearance was revoked

and where he was told to turn left. So there isn’t any

indication that he’s incapable of maintaining separation from the obstacle, but he is relying on air traffic

control not to steer him into one.’’ Id., p. 96.

Further explaining why Mr. Smith’s conduct gave rise

to a duty for terrain separation, Mr. Sommer testified that

while Mr. Bulos was in class D air space, ‘‘he’s at pattern

altitude’’ and ‘‘[t]here should be no risk of any type that

he’s going to run into anything’’. Id., p. 49. However, Mr.

Bulos ‘‘wouldn’t necessarily know that he had just left

class D air space, and . . . he would surely not expect that

the controller would direct him outside of the class D air

space into areas that have extensive high terrain. . . .

[H]e would expect that [air traffic control] knows where

he is based upon the vernacular that he was using in regard to the other aircraft, in regard to what he should be

able to see out his three clock. He knows . . . that the controller can see him on the scope. He doesn’t know that he

79a

just left class D air space, and he wouldn’t know to turn

the TAWS back on’’. Id., p. 52. Mr. Sommer testified that

if Mr. Smith did not know what the terrain was like outside of his air space, he should not have been giving instructions to operate outside of that air space without telling TKU662 to ‘‘maintain VFR’’, a ‘‘very common term[ ]

that controllers use all the time because they want to

make sure that pilots are . . . aware if any . . . terrain

could be a danger to them’’ (id., pp. 72-73), and that by

failing to receive that direction, Mr. Bulos ‘‘was trusting

that the controller was vectoring him in the appropriate

manner so that he wouldn’t impact terrain’’. Id., p. 93. See

also p. 82 (‘‘If [air traffic control] establish that an aircraft

that is under their control should maintain VFR . . . then

it is up to the pilot completely. [Air traffic control] is absolving themselves of that responsibility’’).

Midwest ATC argues that Mr. Sommer’s definition of

VFR, ‘‘which expresses a joint responsibility between pilot and air traffic controller for a VFR aircraft’s terrain

separation, does not correlate with any document or testimony that is part of the record’’ and fails to meet the

standard of reliability set forth in Daubert v. Merrell Dow

Pharmaceuticals, 509 U.S. 579, 597 (1993). Midwest

ATC’s Memorandum of Law [155-3], p. 39. ‘‘[S]ummary

judgment is not per se precluded because there are conflicting experts.’’ Dalberth v. Xerox Corp., 766 F.3d 172,

189 (2d Cir. 2014); Colon ex rel. Molina v. BIC USA, Inc.,

199 F. Supp. 2d 53, 71 (S.D.N.Y. 2001) (‘‘[n]othing in

Daubert, or any other Supreme Court or Second Circuit

case, mandates that the district court hold a Daubert

hearing before ruling on the admissibility of expert testimony, even where such ruling is dispositive of a summary

judgment motion’’). ‘‘The court performs the same role at

the summary judgment phase as at trial; an expert’s re-

80a

port is not a talisman against summary judgment.’’ Dalberth, 766 F.3d at 189. Thus, ‘‘[a]n expert’s conclusory

opinions’’, including those ‘‘without factual basis . . . [are]

inappropriate material for consideration on a motion for

summary judgment’’. Major League Baseball Properties,

Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008).

Absent from the common law duty of reasonable care

or controlling documentation—the two considerations

dictating whether a duty exists (see Wojciechowicz, 576 F.

Supp. 2d at 272)—is any support for the principle that an

air traffic controller assumes a duty for terrain separation

of a flight operating under VFR by giving an instruction.

See In re: Air Crash Near Rio Grande, Puerto Rico, 2016

WL 6916600, *7 (a VFR pilot ‘‘is responsible to avoid terrain . . . . To satisfy this requirement, the pilot must, at all

times, fly in visual meteorological conditions . . . even if

given a vector or other instructions by the controller’’);

Crossman v. United States, 378 F. Supp. 1312, 1316-17 (D.

Or. 1974) (‘‘[e]specially a VFR pilot has no right to rely on

the mere notification of ‘radar contact’ as an invisible hand

to guide him thereafter’’). Telling, Mr. Sommer’s opinion

is even contradicted by plaintiffs’ other expert.

Mr. Sommer relies heavily on Section 2.2 of Annex 11

to ICAO 4444, which sets forth the objectives of air traffic

control services to provide advice and information useful

for the safe and efficient conduct of flights. Sommer deposition transcript [155-25], p. 39. However, as discussed

above, that opinion is expressly contradicted by ICAO

4444 which, states that ‘‘[t]he objectives of the air traffic

control service as prescribed in Annex 11 do not include

prevention of collision with terrain’’. [155-39], p. 106 of

223, § 5.9, Note 3 (emphasis added).

Mr. Sommer’s opinion also lacks common law support.

While it is recognized that when controlling a VFR flight

81a

‘‘[t]he duty to issue a terrain alert arises if a controller is

aware that an aircraft is in unsafe proximity to terrain’’,

In re: Air Crash Near Rio Grande, Puerto Rico, 2016 WL

6916600, *8 (emphasis in original)), there is no evidence in

the record that Mr. Smith, who lacked any terrain warning equipment and did not have a visual on the aircraft,

was aware that TKU662 was in an unsafe proximity to terrain. See id. (finding that no duty existed where the air

traffic controller’s ‘‘radar scope did not depict terrain contours or topographic features . . . or elevations’’ and did

‘‘not provide information about an aircraft’s altitude above

terrain’’). Mr. Sommer acknowledged that Mr. Bulos had

the responsibility to request a different instruction if he

believed that there was any danger or other issue with instruction. Sommer deposition transcript [155-25], p. 69.

Since Mr. Bulos did not request an amended instruction

or give any indication that he was unable to maintain his

VFR responsibilities, Mr. Smith had no reason to believe

that TKU662 was in unsafe proximity to terrain, or that

Mr. Bulos could not maintain terrain separation. See In

re: Air Crash Near Rio Grande, Puerto Rico, 2016 WL

6916600, *8.

Mr. Sommer’s expert report [155-24] suggests that the

dark conditions gave rise to a greater reliance by Mr. Bulos on the instructions of Mr. Smith. Id., p. 6 of 28. That

may be so, but this did not give rise to any duty by Midwest ATC for terrain separation. Significantly, Mr. Sommer conceded that the flight was under VFR throughout

(Sommer deposition transcript [155-25], p. 93)—a designation selected by Mr. Bulos. Midwest ATC’s Statement

of Material Facts [155-2], ¶55. ‘‘[A]n air traffic controller

is entitled to assume that if a pilot is flying under VFR the

. . . conditions the pilot is experiencing are above VFR

minima’’. Wojciechowicz, 576 F. Supp. 2d at 275.

82a

Therefore, I conclude, as a matter of law, that Midwest

ATC owed no duty of care to TKU662 for terrain separation.

2. If a Duty of Care Existed, Was Mr. Bulos the Sole

Proximate Cause of the Accident?

Midwest ATC argues that even if it had some duty for

terrain separation and was negligent, plaintiffs’ claims

would still fail, since ‘‘it could never have been reasonably

foreseen that a VFR pilot, who is legally obligated to see

and avoid terrain, would fail to circumnavigate an obstacle

or terrain’’. Midwest ATC’s Memorandum of Law [155-3],

pp. 40-41.

New York courts have held that ‘‘[a] plaintiff’s intervening conduct . . . can break the chain of causal connection between a defendant’s breach of duty and an ensuing

injury to a plaintiff so as to relieve a defendant from liability for negligence. Moreover, where a party merely furnishes the occasion for an accident but does not cause it,

liability may not be imposed.’’ M.B. ex rel. Scott v. CSX

Transportation, Inc., 130 F. Supp. 3d 654, 676 (N.D.N.Y.

2015). ‘‘New York courts have not been reluctant to grant

summary judgment where the record reflected that one

party’s negligence was the sole proximate cause of an accident.’’ Gray v. Wackenhut Services, Inc., 446 Fed. App’x

352, 354 (2d Cir. 2011) (Summary Order).

Even if Mr. Smith was negligent in directing Mr. Bulos toward the mountain or out of Class D airspace, the

fact remains that he had no reason to believe, from what

was being conveyed to him by Mr. Bulos and what he was

able to observe on radar, that TKU662 was in unsafe proximity to the terrain. While Mr. Sommer also criticized Mr.

Smith’s failure to advise Mr. Bulos to maintain VFR, he

conceded that the flight was ‘‘always VFR’’. Sommer dep-

83a

osition transcript [155-25], p. 93. Under those circumstances, ‘‘ ‘[t]he controller had a right to assume that in

the absence of evidence to the contrary . . . . that the pilots

could see the terrain themselves. ‘It is not negligence not

to repeat information already given or that is already

known to the pilot.’ ’’ Biles, 848 F.2d at 663 n.1 (5th Cir.

1988) (quoting Redhead, 686 F.2d at 183). As a pilot flying

under VFR, Mr. Bulos ‘‘had a continuing duty to be aware

of his location, of the elevation of the terrain over which

he was flying, and of the danger posed by such terrain. He

was negligent in not fulfilling these duties, and that negligence was the proximate and sole cause of this tragic

plane crash’’. McDaniel, 553 F. Supp. at 916.

III. CONCLUSION

For these reasons, I recommend that Midwest ATC’s

motion for summary judgment [155] be granted. Unless

otherwise ordered by Judge Arcara, any objections to this

Report and Recommendation must be filed with the clerk

of this court by May 2, 2017. Any requests for extension

of this deadline must be made to Judge Arcara. A party

who ‘‘fails to object timely. . . waives any right to further

judicial review of [this] decision’’. Wesolek v. Canadair

Ltd., 838 F.2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474

U.S. 140, 155 (1985).

Moreover, the district judge will ordinarily refuse to

consider de novo arguments, case law and/or evidentiary

material which could have been, but were not, presented

to the magistrate judge in the first instance. PatersonLeitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 990-91 (1st Cir. 1988).

The parties are reminded that, pursuant to Rule 72(b)

and (c) of this Court’s Local Rules of Civil Procedure,

written objections shall ‘‘specifically identify the portions

84a

of the proposed findings and recommendations to which

objection is made and the basis for each objection . . .

supported by legal authority’’, and must include ‘‘a written

statement either certifying that the objections do not

raise new legal/factual arguments, or identifying the new

arguments and explaining why they were not raised to the

Magistrate Judge’’. Failure to comply with these provisions may result in the district judge’s refusal to consider

the objections.