United States District Court, N.D. Alabama, Northeastern Division
LORI CHRISTOPHER, as Administratrix of the estate of William R. Christopher, II, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
K. KALLON UNITED STATES DISTRICT JUDGE
action arises from a tragic plane crash that occurred during
a pilot proficiency examination, killing all three people
onboard, including William Christopher, Lori
Christopher's husband, and Robin Smith, a Pilot
Proficiency Examiner (“PPE”). Ms. Christopher
contends that Smith is an employee of the United States and
that Smith's negligence caused the fatal crash. Based on
those contentions, Ms. Christopher asserts claims against the
United States pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b),
2671-80, on behalf of her husband's estate. Doc. 1.
Presently before the court is the United States' motion
for summary judgment, in which it argues that it has no
liability for this tragic accident because Smith was not a
government employee. Doc. 32. The motion is fully briefed,
docs. 32-1, 34-1, 35, and ripe for review. For the reasons
explained below, the court finds that Smith was not an
employee of the Federal Aviation Administration
(“FAA”) for purposes of the FTCA, and the United
States' motion is due to be granted.
STANDARD OF REVIEW
judgment is proper “if the movant shows that 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). “Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party
bears the initial burden of proving the absence of a genuine
dispute of material fact. Id. at 323. The burden
then shifts to the non-moving party, who is required to go
“beyond the pleadings” to establish that there is
a “genuine issue for trial.” Id. at 324
(internal citations and quotation marks omitted). A dispute
about a material fact is “genuine” if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-movant. Adickes v. S.H. Kress & Co., 398
U.S. 144, 157 (1970). However, “mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing
Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that a jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
RELEVANT FACTUAL BACKGROUND
accident underpinning this action occurred during a routine
pilot proficiency check that is required under Federal
Aviation Regulations to maintain an individual's
certification to fly as the “pilot-in-command” of
certain types of aircraft. See doc. 32-2 at 16; 14
C.F.R. § 61.58. Smith, a PPE, was authorized by the FAA
to conduct such proficiency checks, but neither Smith nor his
company, Jet Contrails, had a contract with the FAA. Docs.
32-2 at 16, 24; 32-3 at 3-4. In addition, the FAA did not pay
Smith for his work or provide him with any equipment for
conducting the proficiency check. Doc. 32-3 at 4-5. At the
conclusion of a proficiency check, Smith was solely
responsible for determining if a pilot sufficiently
demonstrated his or her proficiency under the applicable FAA
standards, and Smith would provide the pilot with the results
of the check without submitting anything to the FAA. Doc.
32-3 at 5. See also doc. 32-9.
Holdings, the owner of the airplane involved in the crash,
hired and paid Smith to conduct the pilot proficiency check
for Mr. Christopher and Ken Russo, two of its contract
pilots. Doc. 32-2 at 7, 16-18, 24-25. William Siegel,
Synfuels' chief pilot, contacted Smith based on the
recommendation of another flight instructor, and Siegel did
not utilize any FAA resources to identify or hire Smith.
Id. at 5, 18. Siegel viewed Smith as a private
party, and Smith did not hold himself out as a FAA employee.
Id. at 24. Smith and Siegel made all of the
arrangement for the pilot proficiency check and flight at
issue without any FAA involvement. Id. at 25-26.
Tragically, in this case, the plane crashed shortly after a
take-off, killing Smith, Mr. Christopher, and Russo. Doc. 1
Christopher asserts claims against the United States based on
Smith's alleged negligence in causing the fatal crash and
her allegation that “the FAA was negligent by
entrusting and certifying” Smith as a PPE. Doc. 1 at
5-6. However, in response to the motion for summary judgment,
Ms. Christopher concedes that summary judgment is due on her
claim that the FAA was negligent in certifying Smith as a
PPE. Doc. 34 at 2. Indeed, the record before the court does
not create a genuine issue of material fact on this issue. As
a result, the only question before the court is whether the
United States is liable under the FTCA for Smith's
United States, as a sovereign entity, is immune from suit
unless it consents to be sued.” Zelaya v. United
States, 781 F.3d 1315, 1321 (11th Cir. 2015) (citations
omitted). By enacting the FTCA, Congress waived the United
States' sovereign immunity in the context of “tort
suits based on state law tort claims.” Id.
Instead, the United States may be liable for “personal
injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting
within the scope of his office or employment . . . .”
28 U.S.C. § 1346(b)(1). Thus, the United States'
liability hinges on whether the alleged tortfeasor was an
employee of the Government. Means v. United States,
176 F.3d 1376, 1379 (11th Cir. 1999) (citing Sheridan v.
United States, 487 U.S. 392, 400-01 (1988)). For
purposes of the FTCA, employees of the Government include
“officers or employees of any federal agency . . . and
persons acting on behalf of a federal agency in an official
capacity, temporarily or permanently in the service of the
United States, whether with or without compensation.”
28 U.S.C. § 2671. But, the FTCA definition of employees
excludes “any contractor with the United States.”
Id.; United States v. Orleans, 425 U.S.
807, 814 (1976).
whether an individual is a contractor or an employee of the
Government for purposes of the FTCA is a question of federal
law. Means, 176 F.3d at 1379 (citing Logue v.
United States, 412 U.S. 521, 528 (1973); Ezekiel v.
Michel, 66 F.3d 894, 899 (7th Cir. 1995)). The relevant
test in this circuit is the “control test.”
Means, 176 F.3d at 1379. “Under this test, a
person is an employee of the Government if the Government
controls and supervises the day-to-day activities of the
alleged tortfeasor during the relevant time.”
Patterson & Wilder Constr. Co., Inc. v. United
States, 226 F.3d 1269, 1274 (11th Cir. 2000) (citing
Means, 176 F.3d at 1379). Accordingly, determining
whether Smith was a Government employee, and whether the
United States may be held liable for his alleged negligence,
turns on whether the FAA controlled and supervised his
to the specifics here, Ms. Christopher does not dispute that
the relationship between Smith and the FAA lacked the classic
indicia of employment. See doc. 34-1. After all,
Smith did not receive a salary or other benefits from the
FAA, the FAA did not provide Smith with any equipment, and
Smith did not hold himself out as an FAA employee.
See docs. 32-3 at 4-5; 32-7; 32-10. Ms. Christopher
also does not dispute that, other than limiting Smith to a
maximum of two pilot proficiency checks per day, the FAA did
not control, or have authority to control, Smith's
day-to-day activities as a PPE, such as communicating with
pilots, scheduling flight checks, making flight arrangements,
bookkeeping, and providing pilots with results of the
proficiency checks. See docs. 34-1 at 7-9; 32-3 at
4. Based on her contention that these activities are
“peripheral, administrative tasks, ” Ms.
Christopher argues instead that the employer-employee status
exists here because the FAA controls, or has authority to
control, how PPEs administer pilot proficiency checks. Doc.
34-1 at 7-8.
support her contention, Ms. Christopher points first to the
FAA's Airline Transport Pilot and Aircraft Type Rating
Practical Test Standards for Airplane, doc. 34-5, and argues
that the FAA requires PPEs to conduct pilot proficiency
checks in compliance with the Standards, and that the
Standards mandate the tasks or maneuvers that a pilot must
complete during a proficiency check, docs. 34-1 at 16-18;
34-5; 34-6; 32-11 at 44, 51. This contention misses the mark
because each PPE is generally free to determine how she will
actually implement the tasks and maneuvers during the check.
See docs. 32-6 at 14; 34-5. Moreover, an individual
does not qualify as a Government employee for purposes of the
FTCA simply because the individual's work on behalf of a
Federal agency requires compliance with specific regulations
or standards set by the Government. As the Second Circuit
aptly put it, “[t]he question is not whether [the
individual] must comply with federal regulations and apply
federal standards, but whether [his] day-to-day operations
are supervised by the Federal Government.” Leone v.
United States, 910 F.2d 46, 50 (2nd Cir. 1990) (citing
Orleans, 425 U.S. at 815). See also Logue,
412 U.S. at 521 (holding that employees of a county jail
housing federal prisoners were not Government employees even
though the jail's contract with the Federal Bureau of
Prisons required the jail to comply with the Bureau's
rules and regulations prescribing ...