United States District Court, W.D. New York
JESSICA T. BADILLA, et al., Plaintiffs,
NATIONAL AIR CARGO, INC., et al., Defendants.
JEREMIAH J. McCARTHY, Magistrate Judge.
This action arises from the crash of National Airlines Flight 662 into a mountain east of Kabul Afghanistan International Airport ("KAIA") on October 12, 2010, while en route from Bagram Air Base. Plaintiffs, the alleged personal representatives of six crew members killed in the crash, commenced this removed 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 and seeking to recover unspecified damages. This action was removed to this court based upon diversity jurisdiction pursuant to 28 U.S.C. §§1332 and 1441 (National Air Cargo defendants' Notice of Removal , ¶12), federal officer jurisdiction pursuant to 28 U.S.C. §1442(a)(1) (Midwest Air Traffic Control Service, Inc.'s ("Midwest ATC") Supplemental Notice of Removal , ¶11), and federal enclave jurisdiction (id. ¶16). Thereafter, plaintiffs moved to remand this action .
By Report, Recommendation and Order dated September 30, 2013 , I concluded that diversity and federal enclave jurisdiction were lacking, but I was unable to determine from the record before me whether federal officer jurisdiction existed. Therefore, I recommended denying plaintiff's motion to remand, without prejudice to renewal following the completion of jurisdictional discovery (id.). Without any objections filed by the parties, my recommendation was adopted by Judge Arcara on October 21, 2013, and he referred the matter back to me for further proceedings .
The parties having completed their jurisdictional discovery, before me is plaintiffs' supplemental motion to remand . Oral argument was held on April 24, 2014 . For the following reasons, I recommend that plaintiffs' motion be denied.
In opposing plaintiffs' initial motion to remand, Midwest ATC relied primarily on the Affidavit of Parry Von Campbell [30-1], its Vice President of International Services, to establish federal officer jurisdiction. September 30, 2013 Report, Recommendation and Order , pp. 11-12. Since then, the parties have completed jurisdictional discovery, including the deposition of Von Campbell. Midwest ATC's Opposition , p. 3.
Von Campbell testified that Midwest ATC did not have a contract directly with the United States. Von Campell deposition transcript [60-4], pp. 7, 45. Instead, it was providing services at KAIA at the time of the accident pursuant to a subcontract with Readiness Management Support ("RMS"), the prime contractor, who had a contract with the United States military (id., pp. 44-45).
Von Campbell testified that Midwest ATC began providing radar approach services at KAIA in 2005, and in 2010 began providing control tower services, a role that was previously filled by United States Air Force personnel and "some international controllers" (id., pp. 16-19). He explained that as opposed to radar control, tower controllers provide control service pursuant to visual flight rules (id., p. 18).
Midwest ATC began supplying these services pursuant to a Technical Direction Letter Change Order ("Change Order") to its subcontract with RMS. , Bates No. MATCSI000384. That Change Order, like the subcontract , stated: "It has been determined that the service provided by the contract is part of an essential contract service' - therefore contractor personnel are designated as mission essential personnel". , Bates No. MATSCI000386. The Change Order defines "essential contact service" as "[a] service... to support vital systems including ships... operated in support of military missions or roles at sea and associated support activities including... base support services considered of utmost importance to the U.S. mobilization and wartime mission" (id., Bates No. MATSCI000398).
Von Campbell testified that after Midwest ATC transitioned to providing these services in 2010, the Senior Air Traffic Control Officer ("SATCO") "stayed on board and was directly supervising [Midwest ATC] personnel". Von Campbell deposition transcript [60-4], p. 18. During the time that Midwest ATC provided tower control services at KAIA, the SATCO was always a United States military member (id., p. 40).
Von Campbell testified that at the time of the accident, the tower controller was "following the procedures that were established by his supervisors" (id., pp. 28-29). These included Standard Operating Procedures ("SOPs"), which establish "rules and... guidelines for the controller to follow" (id., pp. 53-54). He also testified that the controller was following guidance set forth in the Local Operating Procedures ("LOP") (id., p. 54). Although the Senior Master Sergeant or the SATCO were present at the control tower "very frequently, on a daily basis" (id., p. 78), the SATCO was not physically present in the tower at the time of the accident (id., p. 41).
In October 2010, tower control at KAIA had four positions: local control, ground control, flight data or clearance delivery, and watch supervisor (id., p. 31). Von Campbell testified that there were times when non-Midwest ATC personnel would man those positions (id.). These included Afghan controllers, United State military controllers, and international civilian controllers (id., p. 34). The SATCO was in charge of and drafted the training plan that permitted controllers to become certified (id., p. 33). The United States miliary provided initial training for the Midwest ATC controllers, and once Midwest ATC was able to staff the facility, Midwest ATC trained their own personnel, "but they were certified by either the SATCO or the deputy SATCO" (id., p. 36).
Pursuant to RMS's contract with the United States Navy , control tower watch supervision was among the duties to be performed by the contractor (id., MATCSI000160). However, Von Campbell testified that even those Midwest ATC employees designated as Watch Supervisors "performed those duties under the direction from the SATCO and the Senior Master Sergeant". Von Campbell deposition transcript [60-4], p. 99. When asked in what document the SATCO's supervision was memorialized, Von Campbell pointed to a September 6, 2010 e-mail from United States Air Force Captain Jeffrey W. Kipp, the SATCO, to Von Campbell and others, stating, in relevant part:
"The one little intricacy that keeps rearing its head is Who is in charge of KAIA Tower?' The controllers (MW/RMS) keep going to a single point of contact for any of their issues (Mr. Tim Dinnean [, Midwest ATC's Chief Controller]). I have no problems with this if it is company related business, (time-sheets, personnel, administrivia, etc) however, when it is Operationally related ALL of those issues should be directly pointed at myself or SMSgt Stevenson.... REQUEST: Please advise all ATC tower controllers on the ground here at KAIA that... ALL operational issues WILL BE ...