Peggy S. LeGrande v. United States ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2205
P EGGY S. L EG RANDE,
Plaintiff-Appellant,
v.
U NITED STATES OF A MERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cv-02047—Joan B. Gottschall, Judge.
A RGUED O CTOBER 26, 2011—D ECIDED JULY 18, 2012
Before R IPPLE and H AMILTON, Circuit Judges, and
M YERSCOUGH, District Judge.Œ
R IPPLE, Circuit Judge. While working as a flight
attendant on Southwest Airlines Flight 2745, Peggy S.
LeGrande was injured when the aircraft encountered
severe turbulence. She brought this action against the
Œ
The Honorable Sue E. Myerscough of the Central District
of Illinois, sitting by designation.
2 No. 11-2205
United States under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 2674, alleging that air traffic controllers em-
ployed by the Federal Aviation Administration (“FAA”)
negligently had failed to warn the flight’s captain that
turbulence had been forecast along the flight path. 1 The
district court concluded that FAA employees did not
breach any duty owed to Ms. LeGrande and granted
summary judgment for the United States. Ms. LeGrande
now seeks reversal of the district court’s judgment.2
She also contends, for the first time in this litigation,
that her injuries resulted from the negligence of a
National Weather Service (“NWS”) meteorologist. Be-
cause the FAA breached no duty owed to Ms. LeGrande,
and because Ms. LeGrande failed to give the NWS the
notice that the FTCA requires, we affirm the judgment
of the district court.
I
BACKGROUND
A.
Before discussing the events that culminated in Ms.
LeGrande’s injuries, we set forth, in summary form, the
role that the FAA and the NWS play in the operation of
our Nation’s air traffic control system.
1
The district court has jurisdiction under 28 U.S.C. §§ 1331and 1346(b).
2
We have jurisdiction under 28 U.S.C. § 1291.
No. 11-2205 3
1.
The FAA operates a nationwide network of ground-
based air traffic control centers that are responsible for
aircraft flying in the national airspace system. As Justice
Jackson wrote in his concurring opinion in Northwest
Airlines, Inc. v. Minnesota, 322 U.S. 292 (1944):
Federal control is intensive and exclusive. Planes
do not wander about in the sky like vagrant clouds.
They move only by federal permission, subject to
federal inspection, in the hands of federally certi-
fied personnel and under an intricate system of
federal commands. The moment a ship taxis
onto a runway it is caught up in an elaborate
and detailed system of controls.
Id. at 303 (Jackson, J., concurring); see also City of Burbank
v. Lockheed Air Terminal, 411 U.S. 624, 633 (1973).
The FAA operates more than three hundred facilities
for the control of aircraft. These facilities are located
throughout the United States and have different capabili-
ties, depending on their role in the Nation’s air
transport system. Central to the case before us is the
Air Route Traffic Control Center (“ARTCC”). Its basic
mission is to provide air traffic control service to aircraft
operating within controlled airspace, principally during
the en route phase of flight. See Michael S. Nolan, Funda-
mentals of Air Traffic Control (5th ed. 2011). The ARTCC
responsible for providing guidance to Flight 2745 at
all times pertinent to our discussion is located in Cleve-
land, Ohio (the “Cleveland Center”), and is responsible
for air traffic control in high-altitude airspace over
4 No. 11-2205
portions of six states—Maryland, Michigan, New York,
Ohio, Pennsylvania and West Virginia—as well as
southern Ontario.
ARTCC facilities are staffed by air traffic controllers
employed by the FAA. Operating under FAA directives,
the primary duties of air traffic controllers are to
prevent collisions between aircraft flying in the air space
sectors assigned to them, organizing and expediting the
flow of air traffic, and supporting national security and
homeland security operations. To the extent consistent
with these primary responsibilities, air traffic con-
trollers also provide lower-priority services to operating
aircraft, including broadcasting certain specific weather-
related information to pilots.
2.
FAA personnel receive various weather reports, called
“weather products.” These are provided by the three
Meteorological Watch Offices 3 and by NWS meteor-
ologists stationed at the Center Weather Service Units
embedded in each ARTCC, including the Cleveland
Center. This case involves several weather products;
we shall describe them briefly.
3
The Meteorological Watch Offices include the Aviation
Weather Center in Kansas City, Missouri, the Alaska Aviation
Weather Unit and the Weather Forecast Office in Honolulu,
Hawaii.
No. 11-2205 5
a. Meteorological Impact Statement
A Meteorological Impact Statement (“MIS”) is “an
unscheduled flow control and flight operations planning
forecast” that a meteorologist provides to assist FAA
personnel in “making flow control-type decisions.” NWS
Instruction 10-803 § 7.5 (Jan. 5, 2005). NWS regulations
state that, at a minimum, an MIS should be issued when:
a. Any of the following conditions occur, are
forecast to occur, and, if previously forecast, are no
longer expected:
(1) Conditions meeting convective SIGMET
criteria (see NWSI 10-811)
(2) Icing—moderate or greater
(3) Turbulence—moderate or greater
(4) Heavy precipitation
(5) Freezing precipitation
(6) Conditions at or approaching Low IFR (see
NWSI 10-813)
(7) Surface winds/gusts [greater than or equal
to] 30 knots
(8) Low Level Wind Shear (surface—2,000 feet)
(9) Volcanic ash, dust storms, or sandstorms;
and
b. In the forecaster’s judgment, the conditions
listed above, or any others, will adversely impact
the flow of air traffic within the ARTCC area of
responsibility.
6 No. 11-2205
Id. (emphasis in original). An MIS is designed as a broad
prediction; it is valid for up to twelve hours and can
cover a wide geographic area. These weather products
are designed to provide those responsible for the flow of
aircraft traffic with an estimation of weather conditions
that may interfere with air traffic patterns in the hours
ahead. Although this weather product is publicly
available on the NWS Aviation Weather Center website,
air traffic controllers do not broadcast an MIS to pilots.
Pilots in command of aircraft aloft need real time
weather information to handle current situations on the
aircraft’s route of travel. This report simply does not
supply that information.
b. Center Weather Advisory
A Center Weather Advisory (“CWA”) is a warning that
weather conditions in a relatively limited geographic area
are expected to approach or meet national in-flight advi-
sory criteria. NWS Instruction 10-803 § 7.6 (Jan. 5, 2005).
In contrast to an MIS, a CWA is “primarily used by
air crews to anticipate and avoid adverse weather con-
ditions.” Id. NWS regulations state:
There are four (4) situations in which a CWA
should be issued:
1. When existing or anticipated weather condi-
tions do not meet national in-flight advisory crite-
ria (i.e., in terms of intensity or areal coverage)
but current [pilot reports] or other weather infor-
mation sources indicate those conditions, in the
judgment of the [Center Weather Service Unit]
No. 11-2205 7
meteorologist, will adversely impact the safe
flow of air traffic within the ARTCC area of
responsibility.
2. As a supplement to an existing in-flight advi-
sory. The issuance of a CWA in this circumstance
should be limited to occasions when, in the judg-
ment of the [Center Weather Service Unit] meteo-
rologist, a redefining statement or update, in
advance of a new national advisory, is adequately
supported by real-time information. . . .
3. When an in-flight advisory has not been
issued, but observed or expected weather condi-
tions meet in-flight advisory criteria (based on
current [pilot reports] and/or other sources of
information). . . .
4. To cancel a CWA when the phenomenon
described in the CWA is no longer expected. . . .
Id.
When a meteorologist issues a CWA, the information
is printed on a General Information Strip at the
responsible air traffic controllers’ stations. Each air
traffic controller reads the strip aloud, broadcasting it
once to all pilots on that radio frequency. If the informa-
tion includes certain weather conditions, the con-
troller advises pilots to tune into the Hazardous Inflight
Weather Advisory Service (“HIWAS”), Flight Watch
or Flight Service, depending on the geographic area.4
4
The HIWAS broadcasts “[c]ontinuous recorded hazardous
(continued...)
8 No. 11-2205
c. Pilot Report
A Pilot Report (“PIREP”), as the name suggests, is a
report of adverse weather conditions that an air traffic
controller receives directly from a pilot rather than
from an NWS Meteorological Watch Office or an NWS
meteorologist at a Center Weather Service Unit. The
relevant FAA directive instructs air traffic controllers to
“[s]olicit PIREPs when requested or when one of [an
enumerated list of] conditions exists or is forecast for
[their] area of jurisdiction.” FAA Job Order 7110.65P § 2-6-
3(a). Weather conditions under which an air traffic con-
troller should solicit PIREPs include “[t]urbulence of
moderate degree or greater.” Id. § 2-6-3(a)(4). Upon re-
ceiving a PIREP, an air traffic controller broadcasts it to
relevant flights and enters it into the air traffic control
computer system. PIREPs are publicly available on the
FAA website.
PIREPs are common; the record reflects that the Cleve-
land Center receives hundreds to thousands of PIREPs
every day. They also are limited temporally in their
usefulness; FAA regulations do not identify a specific
duration for each PIREP, but the parties agree that PIREPs
“provide useful weather data for 30 to 60 minutes,
unless pilots continue to report the same weather condi-
tion in the same location.” R.70 at 11.
4
(...continued)
inflight weather forecasts . . . to airborne pilots.” FAA Pi-
lot/Controller Glossary. The HIWAS is not available in all
areas; Flight Watch and Flight Service provide en route weather
updates and pilot weather reports in non-HIWAS areas.
No. 11-2205 9
B.
With this background, we turn to the events of Febru-
ary 10, 2006, that are the factual predicate of this action.
On that day, Ms. LeGrande was working as a flight at-
tendant on a Southwest Airlines aircraft. Throughout the
day, the aircraft had been flying various routes in the
Midwest. Its penultimate trip was from Chicago to Cleve-
land. Its final trip of the day was the return trip from
Cleveland to Chicago. For this final leg of its daily sched-
ule, the aircraft was operating as Southwest Airlines
Flight 2745.
During the course of that day, Thomas Janus, an NWS
meteorologist on duty at the Cleveland Center Weather
Service Unit, issued three weather products relevant to
this litigation: MIS 02, MIS 03 and a CWA. Both MIS 02
and MIS 03 warned the FAA’s Traffic Management
Unit that, over the twelve-hour period following the
issuance of each MIS, frequent moderate turbulence to
isolated severe turbulence could develop over portions
of Michigan, New York, Ohio and Pennsylvania—a large
part of the airspace within the Cleveland Center’s area
of responsibility. Janus issued the first of these weather
products, MIS 02, at 2:42 p.m. He limited it to altitudes
of 17,000 to 27,000 feet. The second weather product, MIS
03, was issued at 9:06 p.m. and related to the same geo-
graphic area but to altitudes of 17,000 to 32,000 feet. Janus
also issued a CWA at 8:31 p.m., in response to a PIREP
of severe turbulence at 32,000 feet in airspace east of
Cleveland. The parties do not dispute that Janus believed
the weather system was moving east from Cleveland.
10 No. 11-2205
Prior to departure on the final leg of the aircraft’s daily
schedule, a Southwest Airlines dispatcher provided the
captain of Flight 2745 with a pre-flight information
packet. The packet contained weather-related informa-
tion, including a private meteorologist’s forecast of moder-
ate turbulence at 20,000 to 26,000 feet and a number of
PIREPs, one of which was a report of severe turbulence at
20,000 to 22,000 feet over Windsor, Ontario.5 Based on
this information, the Southwest Airlines dispatcher
advised the captain of Flight 2745 to fly at 30,000 feet.
However, the captain elected to fly at 20,000 feet because
he had encountered turbulence above 24,000 feet on the
previous flight from Chicago to Cleveland. The captain
requested and received permission from the controller
at the Cleveland Center to fly at 20,000 feet; he did not
inform his Southwest Airlines dispatcher of his decision.
Neither the dispatcher nor the air traffic controller in-
formed Flight 2745 of MIS 02, MIS 03 or the CWA that
Janus had issued earlier.
Flight 2745 took off from Cleveland Hopkins Interna-
tional Airport at 9:40 p.m. Shortly thereafter, the aircraft
encountered a light to moderate bump, and the pilots
instructed the flight attendants to take their seats. Within
5
Several PIREPs were not included in the Southwest Airlines
weather package because the dispatcher did not consider
them pertinent to Flight 2745. These included a 6:45 p.m. report
of severe turbulence at 19,000 to 21,500 feet over the Boiler
VHF Omnidirectional Radio Range and an 8:10 p.m. report
of moderate to severe turbulence at 20,000 to 21,000 feet over
Portland, Indiana.
No. 11-2205 11
five seconds of the pilots’ order, Flight 2745 encountered
severe turbulence for approximately fifteen seconds.
Ms. LeGrande, who presumably had not had time to
secure herself in a seat, was injured and rendered uncon-
scious during the episode. Flight 2745 provided the
air traffic controller with a PIREP describing severe
turbulence at 9:58 p.m. Several physicians aboard Flight
2745 cared for Ms. LeGrande until the aircraft landed
at Chicago Midway International Airport.
C.
On September 20, 2007, Ms. LeGrande filed an adminis-
trative “Claim for Damage, Injury, or Death” with the
FAA. She sought $25 million for her turbulence-related
injuries. In her claim, Ms. LeGrande alleged that “[t]he
United States of America, through the Federal Aviation
Administration, its employees, agents and representatives,
were negligent in that they breached their duties under
the rules and regulations governing the performance
of their job duties.” R.45-2 at 4. The FAA denied the claim.
Ms. LeGrande then filed this FTCA action against the
United States. She alleged that FAA personnel had
failed to advise the captain of Flight 2745 of two PIREPs of
severe turbulence in the area. After it was determined
that one of the two PIREPs in her complaint was the
9:58 p.m. broadcast from Flight 2745 itself, Ms. LeGrande
filed an amended complaint. In that pleading,
Ms. LeGrande alleged, in relevant part, that
the [FAA] and the air traffic supervisors, control-
lers and other FAA personnel handling SWA Flight
12 No. 11-2205
2745 within the airspace boundaries of the Cleve-
land Air Traffic Control Center were aware of
pilot reports, weather reports and forecasts and
other weather[-]related products generated and
issued by the Cleveland Center Weather Service
Unit meteorologist respecting severe clear air
turbulence reported and/or forecasted to exist in
and/or within close proximity to the flight path
and chosen altitude of flight SWA 2745, including
its flight path through the airspace boundaries
of the Cleveland Air Traffic Control Center’s
jurisdiction.
...
[T]he United States of America, individually
and/or through the FAA, its employees, agents and
representatives, breached the duty owed to the
Plaintiff by failing to provide the pilot of SWA
Flight 2745 with the aforementioned known,
existing, pertinent pilot reports, weather reports,
advisories and impact statements and forecasts
issued by the meteorologist in the Center Weather
Service Unit at Cleveland Center respecting se-
vere clear air turbulence existing in and near the
flight path and chosen altitude of SWA Flight 2745.
R.45 at 2-3.
Following discovery, Ms. LeGrande and the Govern-
ment filed cross-motions for summary judgment.
Ms. LeGrande provided more detail about her claims in
her summary judgment filings. She asserted that the
three weather products issued by NWS meteorologist
No. 11-2205 13
Janus—MIS 02, MIS 03 and the CWA 6 —had alerted FAA
personnel at the Cleveland Center of severe turbulence
in the airspace through which they knew Flight 2745
would be flying. The Government contested the
existence of a duty, the allegation that FAA personnel
breached any duty and causation.
The district court concluded that the United States,
through the FAA, owes a duty of reasonable care to an
aircraft, passengers, crews and cargoes in the performance
of air traffic control responsibilities and that this duty
includes warning pilots of certain weather conditions.
Nevertheless, the district court determined that the
FAA had not breached that duty here. Specifically, the
district court concluded that the duty owed by air
traffic controllers does not include an obligation to dis-
seminate MIS notifications to pilots because such
weather products are designed for traffic planning pur-
poses rather than for providing immediate navigational
guidance to aircraft already aloft. The court further de-
termined that the CWA issued before the departure of
Flight 2745 was not pertinent because it was limited to
airspace east of Cleveland through which Flight 2745,
heading west from Cleveland to Chicago, did not travel.
The district court similarly concluded that the pilot
reports on which Ms. LeGrande relied were not pertinent
6
Although she mentioned PIREPs in her Amended Complaint
and her Memorandum in Support of Summary Judgment,
Ms. LeGrande later conceded that there were no PIREPs
pertinent to Flight 2745. R.70 at 6.
14 No. 11-2205
to Flight 2745. Given these circumstances, the district
court concluded, FAA personnel had not breached any
duty owed to Ms. LeGrande by failing to broadcast turbu-
lence warnings to Flight 2745.
II
DISCUSSION
We review a district court’s grant of summary judgment
de novo. See Massey v. United States, 312 F.3d 272, 276
(7th Cir. 2002). Summary judgment is appropriate only
when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Where the district court is
faced with cross-motions for summary judgment, as in
this case, “we construe all inferences in favor of the
party against whom the motion under consideration is
made.” Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d
355, 359 (7th Cir. 2011) (internal quotation marks omitted).
To survive summary judgment, Ms. LeGrande must
provide facts that, when taken in the light most
favorable to her, establish a genuine issue of material fact
as to whether her injuries resulted from the Government’s
breach of a duty owed to her. She seeks to do so in two
ways: by maintaining that FAA personnel negligently
failed to broadcast turbulence predictions to Flight 2745
and by introducing the argument, not raised before the
district court, that NWS meteorologist Janus was negli-
gent for not providing his turbulence predictions to
FAA personnel. We address each contention in turn.
No. 11-2205 15
A. The Duty of Air Traffic Controllers
1.
The FTCA serves as a limited waiver of the sovereign
immunity of the United States. It therefore opens the
federal government to tort liability “under circumstances
where the United States, if a private person, would be
liable to the claimant in accordance with the law of the
place where the act or omission occurred.” 28 U.S.C.
§ 1346(b).
We agree with the parties that Ohio law governs this
case. See Richards v. United States, 369 U.S. 1, 9-10 (1962).
Because the alleged negligent act or omission occurred
in Ohio, we apply Ohio choice-of-law rules. See Spurgin-
Dienst v. United States, 359 F.3d 451, 455 n.2 (7th Cir. 2004).
Ohio has adopted the Restatement (Second) of the Law
of Conflicts § 146, under which “a presumption is created
that the law of the place of the injury controls unless
another jurisdiction has a more significant relationship
to the lawsuit.” Morgan v. Biro Mfg. Co., 474 N.E.2d 286,
289 (Ohio 1984). At the time Ms. LeGrande was injured,
Flight 2745 was flying in Ohio airspace and was under
the jurisdiction of air traffic controllers based in
Cleveland, Ohio. The parties have not suggested that any
other state has a more significant relationship to the
lawsuit than does Ohio. Therefore, we apply Ohio tort law.
Under Ohio law, it is well settled that the elements
of an ordinary negligence suit between private parties
are (1) the existence of a legal duty, (2) the de-
fendant’s breach of that duty and (3) an injury that is
proximately caused by the defendant’s breach. Wallace v.
16 No. 11-2205
Ohio Dep’t of Commerce, 773 N.E.2d 1018, 1025-26
(Ohio 2002).
2.
The parties agree that the FAA air traffic controllers at
the Cleveland Center had a duty to provide air traffic
control guidance to Flight 2745. What they dispute is the
scope of that duty.7 In Ms. LeGrande’s view, FAA personnel
knew that severe turbulence had been predicted on Flight
2745’s flight path, and the agency therefore breached
its duty to her when the air traffic controllers failed to
warn the captain of the forecaster’s predictions.
As we noted earlier, in analyzing negligence claims
under the FTCA, the courts of appeals are in agree-
ment that state substantive law governs whether the
7
To the extent that Ms. LeGrande may be attempting to
challenge the FAA’s determination as to which weather
products are useful to pilots, we believe that this deter-
mination is a discretionary function that falls within the dis-
cretionary function doctrine, which limits the FTCA’s waiver
of sovereign immunity. See United States v. Gaubert, 499 U.S. 315,
322-25 (1991) (discussing discretionary function doctrine);
Berkovitz v. United States, 486 U.S. 531, 536-37 (1988)
(same); United States v. Varig Airlines, 467 U.S. 797, 814-15 (1984)
(applying the discretionary function doctrine to an FAA
certification process); Collins v. United States, 564 F.3d 833, 838-
39 (7th Cir. 2009) (applying the discretionary function
doctrine to the FAA’s decision not to install radar at a regional
airport).
No. 11-2205 17
defendant owed a duty of care to the plaintiff.8 In the
aviation context, however, the courts often have given
content to the elements of state law by referring to
federal standards. The reasons for this reference to
federal law are twofold. First, exclusive federal jurisdic-
tion over such claims, as a practical matter, has prevented
state courts from developing controlling legal principles
at a sufficient level of specificity.9 More fundamentally,
when the federal employee’s actions are dictated by
federal law and regulations, reference to those sources is
necessary to understand the nature of the employee’s
duties and the limitations on his authority. Accordingly,
it is not surprising that FTCA cases concerning air
traffic controllers have imported standards from the
regulations or the air traffic manuals in determining
the contours of the state-law duty.1 0 Notably, Ohio law
8
See, e.g., Glorvigen v. Cirrus Design Corp., 581 F.3d 737, 743 (8th
Cir. 2009) (holding that Minnesota law governs plaintiff’s
negligence action brought under the FTCA); St. Tammany
Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307,
317 (5th Cir. 2009) (stating that, “[a]s long as state tort law
creates the relevant duty, the FTCA permits suit for viola-
tions of federal statutes and regulations”); Ochran v. United
States, 273 F.3d 1315, 1317 (11th Cir. 2001) (noting that, in a
negligence action, the court would “turn to the law of Florida
to determine whether [the defendant] owed a duty of care”).
9
Glorvigen, 581 F.3d at 743.
10
See id. at 743-44; see also Tinkler v. United States ex rel. F.A.A.,
982 F.2d 1456, 1461 (10th Cir. 1992) (“Mead’s duty arose from
(continued...)
18 No. 11-2205
10
(...continued)
both the dictates of the Flight Services Manual as well as the
reliance pilots place on FSS briefers.”); Moorhead v. Mitsubishi
Aircraft Int’l, Inc., 828 F.2d 278, 282 & nn. 13-14 (5th Cir. 1977)
(relying on the manual to establish a duty of care); Gill v.
United States, 429 F.2d 1072, 1075 (5th Cir. 1970) (same); cf.
Johnson v. Sawyer, 47 F.3d 716, 728-29 (5th Cir. 1995) (en banc)
(holding that violation of a duty created by federal law
would not support an FTCA claim, but noting that the same
violation may constitute a violation of a state-imposed duty
on a “negligence per se concept”); Jackson v. United States, 156
F.3d 230, 234 (1st Cir. 1998) (rejecting, as a matter of West
Virginia law, plaintiff’s negligence per se theory built on
controller’s failure to follow manual, but suggesting that it
could be “some evidence of negligence”). It should be noted
that some of these cases have imported the standards with a
more precise legal analysis than others by specifically ex-
plaining the difference between importing a federal duty and
importing a federal standard of care to define a state-law duty.
But cf. Holbrook v. United States, 673 F.3d 345, 347 (4th Cir. 2012)
(“If select passages from a lengthy and complex order could
serve as the basis for government tort liability, the FAA
would be hobbled by the specter of litigation as it worked to
promote aircraft safety. The price of circulating internal guid-
ance should not be an exponential increase in exposure to a
tort suit.”).
It is worth noting that this approach to defining state-law
duties by reference to federal sources is not unique to the
aviation context. See Parrott v. United States, 536 F.3d 629, 637
(7th Cir. 2008) (noting that, under Supreme Court cases, federal
statutes provided a duty of care owed to federal inmates, but
(continued...)
No. 11-2205 19
appears to recognize the necessity of referring to federal
legal principles in such a situation. See Salisbury v. Gordon
Air Mgmt. Corp., No. 19085, 2000 WL 92087, at *5 (Ohio Ct.
App. Jan. 19, 2000);1 1 see also Freeman v. United States, 509
10
(...continued)
also that, “[t]o the extent that the FTCA requires us to assess
the Government’s duty under Indiana law, . . . there is no
hint that Indiana law would differ on this point”); see also Bolt
v. United States, 509 F.3d 1028, 1031-32 (9th Cir. 2007) (reit-
erating that a federal rule, such as the Army rules for snow
removal, can determine standard of care in exercising state
law duty); Medina v. United States, 259 F.3d 220, 223 (4th Cir.
2001) (in case involving immigration detention of foreign
diplomat, noting that the FTCA “serves to convey jurisdiction
when the alleged breach of duty is tortious under state law, or
when the Government has breached a duty under federal law that
is analogous to a duty of care recognized by state law” (emphasis
added) (internal quotation marks omitted)).
11
In Salisbury v. Gordon Air Mgmt. Corp., No. 19085, 2000 WL
92087 (Ohio Ct. App. Jan. 19, 2000), a pilot was sued following
a crash for failure to abide by an FAA regulation concerning
when an aircraft may fly into “known or forecast moderate
icing conditions.” Id. at *4. Relying in part upon “persuasive
authority on the federal level,” the Court of Appeals of Ohio
concluded that “the regulations do establish the standard of
care of a reasonable pilot in [Ohio].” Id. The court noted both
that “the federal air regulations have been adopted by the
State of Ohio as its own,” citing Ohio Revised Code § 4561.05,
and that cases from both the Third and the Ninth Circuits
suggested that the adoption of the federal regulations as
(continued...)
20 No. 11-2205
F.2d 626, 629 (6th Cir. 1975) (applying FAA regulations
to establish the standard of care controllers owe para-
chutists in FTCA case governed by Ohio law). Indeed, Ohio
has adopted federal air regulations as its own. Ohio
Rev. Code §§ 4561.05, 4561.14. As Judge McCree wrote
in Freeman, therefore, “violation of a federal air regula-
tion constitutes a violation of Ohio law.” 509 F.2d at 630.
Ms. LeGrande, who bears the burden of proof, has
pointed to no statute, regulation or other directive that
imposes on FAA traffic controllers the responsibility to
transmit MIS weather products to pilots. Indeed, a
review of the governing directives makes clear that no
such obligation exists. At the time Ms. LeGrande was
injured, FAA Job Order 7110.65P prescribed air traffic
control procedures regarding, among other things, the
dissemination of weather-related information to pilots.1 2
The Job Order states, in relevant part:
Controllers shall advise pilots of hazardous
weather that may impact operations within 150
[nautical miles] of their sector or area of jurisdic-
tion. Hazardous weather information contained
11
(...continued)
the standard of care or as evidence thereof is the norm. Id. at *5.
The court found this sufficient to establish ordinary negligence
in that case and, therefore, did not consider whether, because
it involved a violation of a safety statute designed to prevent
the harm at hand, it amounted to negligence per se. Id.
12
These regulations have since been revised and can be found
in substantially the same form at FAA Job Order 7110.65T.
No. 11-2205 21
in HIWAS broadcasts includes Airmen’s Meteo-
rological Information (AIRMET), Significant Mete-
orological Information (SIGMET), Convective
SIGMET (WST), Urgent Pilot Weather Reports
(UUA), and Center Weather Advisories (CWA).
FAA Job Order 7110.65P § 2-6-2. Indeed, Ms. LeGrande’s
expert, when asked whether air traffic controllers were
“permitted to broadcast a HIWAS alert for an MIS,”
answered by saying, “Not that I know of.” R.60-6 at 12
(Burgess Dep. 203).
Ms. LeGrande contends, in essence, that the first sen-
tence of FAA Job Order 7110.65P § 2-6-2—“Controllers
shall advise pilots of hazardous weather that may
impact operations within 150 [nautical miles] of their
sector or area of jurisdiction”—operates independently
from the remainder of that subsection, which, in
her view, details how air traffic controllers must ad-
vise pilots of hazardous weather. We believe that
Ms. LeGrande’s textual interpretation of the job order is a
strained one that, when read in the context of the rest of
the directive, would produce a decidedly unrealistic result.
First, it is important to note, at the outset, that, under
the procedure mandated by the job order, air traffic
controllers in HIWAS areas, including the airspace con-
trolled by the Cleveland Center, are not directed to broad-
cast detailed in-flight weather advisories. Instead, as a
general rule, the controllers read the limited information
on a General Information Strip to inform pilots that an
advisory has been published and then instruct pilots
to turn to the HIWAS broadcast on another radio
22 No. 11-2205
frequency for more detailed information. The FAA
Job Order directs controllers to use the following phraseo-
logy: “ATTENTION ALL AIRCRAFT. HAZARDOUS
WEATHER INFORMATION [type and number of
weather product issued] FOR (geographical area) AVAIL-
ABLE ON HIWAS, FLIGHT WATCH, OR FLIGHT SER-
VICE FREQUENCIES.” FAA Job Order 7110.65P § 2-6-2
(noting that the inclusion of the type and number of
weather advisory responsible for the HIWAS advisory is
optional). Notably, even on the HIWAS frequency,1 3
which is dedicated to weather conditions that are of
immediate interest to pilots of aircraft currently in
flight, MIS weather products are not broadcast because
they are not immediately pertinent to aviators aloft.
We also cannot accept the suggestion that the FAA Job
Order imposes on air traffic controllers a duty to
broadcast information about predicted turbulence regard-
less of the weather product in which that prediction is included.
It is true that the first sentence of FAA Job Order 7110.65P
§ 2-6-2 instructs air traffic controllers to “advise pilots of
hazardous weather that may impact operations within
150 [nautical miles] of their sector or area of jurisdiction.”
It is also true that the FAA Pilot/Controller Glossary
defines “Hazardous Weather Information” as informa-
13
These products also are not available on Flight Watch or
Flight Service frequencies relied upon by aviators traversing
areas not covered by a HIWAS service.
No. 11-2205 23
tion contained in various listed weather products 1 4 and
“any other weather . . . which is considered significant
and [is] not included in a current hazardous weather
advisory.” To determine the significance of weather
conditions, we receive some help from another section
of FAA Job Order 7110.65P, which charges the controller
to be prepared to suggest alternate routes and altitudes
in “areas of significant weather,” notes that “[w]eather
significant to the safety of aircraft includes such condi-
tions as . . . moderate to extreme turbulence (including
[clear air turbulence]).” FAA Job Order 7110.65P § 2-6-4(b)
note.
Even if we read these provisions to suggest that there
may be occasions when an air traffic controller is obliged
to alert aloft aircraft to a weather condition such as turbu-
lence when that condition is not included in a current
advisory, we do not think that it is plausible to read these
documents to require that the controller advise the pilot
of the content of an MIS. The relevant Job Order provi-
sions clearly apply to current specific weather conditions of
sufficient severity to impede the aircraft’s flight. As we
have noted earlier, the FAA has categorized weather
14
According to the FAA Pilot/Controller Glossary, Hazardous
Weather Information includes information contained in urgent
PIREPs and CWAs as well as weather products known as
SIGMETs, convective SIGMETs, and AIRMETs. None of
those weather products are implicated in this case. Notably,
the list of weather products that the glossary uses to define
Hazardous Weather Information does not include the
weather product at issue in this case—an MIS.
24 No. 11-2205
products into those that are disseminated to pilots, such as
a CWA, and those that are not, such as an MIS, precisely
to ensure that pilots receive useful information without
being distracted by forecasts of no practical significance.
The pilot of an aircraft, alert for immediate meteorological
dangers, simply would not profit from—or want to be
distracted by—the information contained in an MIS.
Here, MIS 02 and MIS 03 pertained to a 10,000- to 15,000-
foot high block of airspace above parts of four
states—Michigan, Ohio, Pennsylvania and New
York—over a period of some twenty hours.1 5 Even taking
all the facts in the light most favorable to Ms. LeGrande,
the general forecast of frequent moderate turbulence to
isolated severe turbulence in such a massive area and
for such a lengthy period of time, while useful to the
FAA for flight planning purposes, was far too indefinite
to be of assistance to pilots.
Therefore, not only has Ms. LeGrande failed in carrying
her burden of proof, but the governing regulations and
job orders make clear that the district court was correct
in determining that FAA air traffic controllers have no
duty to advise pilots of the content of MIS weather prod-
ucts. FAA personnel in this case therefore had no duty
to disseminate the turbulence predictions contained in
15
MIS 02 was issued at 2:42 p.m. About eight and a half hours
later, MIS 03 was issued at 9:06 p.m. In total, the prediction
encapsulated in MIS 02 and MIS 03 lasted from 2:42 p.m.
until 9:06 a.m. the following morning, a total of over
twenty hours.
No. 11-2205 25
either MIS 02 or MIS 03 to Flight 2745. Nor did air
traffic controllers have any duty to broadcast the CWA
to Flight 2745; it was limited to airspace that Flight
2745 would not traverse on its path from Cleveland to
Chicago.16
16
In further support of her contention that air traffic controllers
should have broadcast the turbulence predictions from MIS 02
and MIS 03, Ms. LeGrande invites our attention to United
States Aviation Underwriters, Inc. v. United States, 562 F.3d 1297,
1299 (11th Cir. 2009), in which the Court of Appeals for the
Eleventh Circuit stated in the course of its decision: “The
United States concedes that, once the National Weather Service
forecasts moderate to severe turbulence, the United States
government has no discretion to decline to provide that infor-
mation to pilots.” The Government’s concession in Aviation
Underwriters was limited to the duty of an NWS Meteorological
Watch Office to disseminate, per NWS procedures, a weather
product known as a SIGMET. There is no SIGMET implicated
in this case, which revolves instead around an MIS, an
entirely different weather product. Additionally, the FAA
personnel Ms. LeGrande accuses of negligence in this suit
are not governed by NWS directives. The governmental conces-
sion on which Ms. LeGrande relies is therefore inapposite to this
case.
Ms. LeGrande also relies on Spurgin-Dienst v. United States, 359
F.3d 451, 455 (7th Cir. 2004), in which we suggested that an
air traffic controller erred by, among other things, not pro-
viding a pilot with an MIS about icing conditions. The
statement in Spurgin-Dienst on which Ms. LeGrande relies is
dicta. At the core of that decision was our holding addressing
the actions of FAA personnel; we held that the district court
(continued...)
26 No. 11-2205
B. Negligence by NWS Meteorologist Janus
In this appeal, Ms. LeGrande raises, for the first time in
this litigation, the allegation that NWS meteorologist
Janus negligently failed to provide his turbulence predic-
tions to FAA personnel for dissemination to pilots. This
is a new tack, which goes beyond the allegation of negli-
gence by FAA employees that Ms. LeGrande raised in
her administrative claim and in her pleadings in the
district court. See R.45-2 at 4 (Administrative Complaint);
R.1 at 3 (Complaint); R.45 at 2-3 (Amended Complaint).
The FTCA contains a threshold requirement that an
administrative claim be “presented in writing to the
appropriate Federal agency.” 28 U.S.C. § 2401(b). Indeed,
no lawsuit may be filed “unless the claimant shall have
first presented the claim to the appropriate Federal
agency.” 28 U.S.C. § 2675. The Supreme Court has held
that this requirement is jurisdictional and not subject to
waiver. McNeil v. United States, 508 U.S. 106, 112-13 (1993).
The allegations in an administrative claim are only suffi-
cient if they put the “legally sophisticated reader” on
notice of a connection between the alleged injury and
16
(...continued)
had not clearly erred when it found that the information
withheld from the pilot “would not have led [the pilot] to
change course.” Id. We also noted that the “FAA personnel
committed errors,” including the failure to provide the MIS
to the pilot. Id. This statement was made in passing without
significant discussion and, furthermore, was unnecessary to
the outcome in that case.
No. 11-2205 27
the specific conduct that the plaintiff is asserting as a
basis for the claim. Palay v. United States, 349 F.3d 418, 426-
27 (7th Cir. 2003) (holding that an agency is notified
properly of a claim for purposes of the FTCA if the claim
would have been apparent to a “legally sophisticated
reader”). The pertinent regulations require an agency in
receipt of a claim to transfer that claim to another agency
if the activities that gave rise to the claim were activities
of that other agency. 28 C.F.R. § 14.2(b)(1). The regulations
further provide that, if more than one federal agency is
or may be involved in the events that give rise to the
claim, the agency receiving the claim must contact the
other affected agency in order to designate the single
agency that will investigate and decide the merits of
the claim. 28 C.F.R. § 14.2(b)(2).
We have examined the administrative claim filed by
Ms. LeGrande. It alleges six claims of negligence against
the FAA; each claim pointedly alleges a breach of an FAA
Job Order. It alleges no claim of negligence against the
NWS. In the box for the entry of the “Appropriate
Federal Agency” to which the claim is directed, only the
FAA is mentioned. In short, the administrative claim is
clear; only the FAA’s actions are alleged to have been
negligent. Under these circumstances, no provision of 28
C.F.R. § 14.2 required the FAA to transfer the claim to
the NWS, to notify the NWS of the claim or to determine
which agency would undertake the investigation and
adjudication of the claim. The very specific allegations
of the claim allege negligence on behalf of the FAA and
no other federal agency.
28 No. 11-2205
As the Supreme Court noted in McNeil, the statutory
threshold requirement of filing an administrative claim
with the appropriate agency is clear and cannot be charac-
terized as a “trap for the unwary.” 508 U.S. at 113. Be-
cause Ms. LeGrande failed to comply with that admin-
istrative requirement, her new allegations are barred
by the plain language of the statute.
Conclusion
The district court correctly determined that
Ms. LeGrande had failed to establish that FAA personnel
breached any duty owed to her. Additionally, the allega-
tions of the NWS meteorologist’s negligence are barred
for failure to comply with the statutory requirement
that suit under the Federal Tort Claims Act be preceded
by an administrative complaint. Accordingly, the judg-
ment of the district court is affirmed.
A FFIRMED
7-18-12