Patterson & Wilder Construction Co., Inc. v. United States

FARRIS, Circuit Judge,

dissenting:

The majority begins the opening paragraph of its discussion of the merits with a sentence that I adopt to begin my brief dissent: “The facts relevant to the single issue presented by this appeal are largely undisputed.” Because I am convinced that the trial court reviewed those undisputed *1279facts and properly entered summary judgment for the government, I would affirm.

I agree with the majority that the sole issue on appeal is “whether the two pilots — Reynolds and Boyd — were ‘employees’ of the Government within the meaning of the FTCA.” We part ways, however, on the answer to that question.

As a limited waiver of sovereign immunity, the FTCA is strictly construed, and all ambiguities are resolved in favor of the Government. See United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). Against this backdrop of limited abrogation of sovereign immunity, this court has adopted the “control test” to determine whether a defendant was acting as an employee of the Government thereby exposing the government to liability under the FTCA. See Means v. United States, 176 F.3d 1376, 1378 (11th Cir.1999). Under the control test an individual is an employee of the Government for FTCA purposes where the Government controls and supervises the day-to-day activities of the person. See Means, 176 F.3d at 1379 (citing Logue v. United States, 412 U.S. 521, 526-32, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973)).

Applying the control test to the mission as a whole, the majority concludes that there is “powerful evidence” upon which a reasonable factfinder could determine the pilots were employees of the Government. I disagree. The facts are not in dispute. There is nothing for a trier of fact to resolve. Conclusions from those facts were properly ruled upon by the district court as a matter of law.

In applying the control test, the majority analyzes the relationship between the Government and the pilots “in its totality.” The majority’s litany of examples where the pilots interacted with Government officials during the pre-flight preparations are not disputed. The majority places heightened significance on facts such as the. Government’s directions on how the pilots should proceed from Texas to Colombia, designation of a specific locale in Colombia, supervision of the plane while it was han-gared overnight, instructions on meeting a specific drug dealer, installation of a transponder, and various other pre-mission arrangements. If there were any factual dispute, or any disputed inferences from those facts, I would agree with the majority-

The essence of P&W’s claim under the FTCA is that the phots took', flew and lost the aircraft, in which P&W possessed an interest as a lessee with an option to buy, without P&W’s consent. P&W now wants compensation for the loss. While understandable and sympathetic, the claim is misdirected. P&W’s claiih stems from two specific transactions: (1) Reynolds’s allegedly unauthorized acquisition of the plane and (2) the pilots’ subsequent loss of the plane in the Colombian jungle. The undisputed evidence is that the Government had no involvement, let alone control or supervision, in acquiring or destroying the plane. The majority recognizes that the Government’s role in these transactions was “peripheral” at most.

After acknowledging that these two transactions “lie at the heart” of P&W’s case, the majority emphasizes the Government’s assistance in the pre-flight preparations. The Government did tell the pilots where to fly (i.e. Florida, Panama, and . Colombia) but that alone, or in conjunction with other undisputed facts, does not resolve the question. See Letnes v. United States, 820 F.2d 1517, 1518 (9th Cir.1987); see also Curry v. United States, 97 F.3d 412, 415 (10th Cir.1996) (recognizing that detailed regulations and inspections are not in and of themselves evidence of an employer-employee relationship).

In Letnes, the Ninth Circuit explained that the Government’s ability to tell a pilot where and when to drop fire retardant was insufficient to indicate supervision over the physical details of the pilot’s daily operations. See Letnes, 820 F.2d at 1519. Despite restrictive contract provisions governing the operation, maintenance, and equipment of the plane, the Ninth Circuit determined that the government did not *1280control the “detailed physical operation of the plane” because such provisions were aimed at securing a minimum level of safety. Id.

Although not binding precedent in this circuit, Letnes provides a more current and analogous application of the control test than the majority’s discussion of Becker or Slagle. Although the Government did provide instructions as to where and when the pilots were to meet Armando, such assistance does not evidence Government control over the pilots’ daily operation. See Letnes, 820 F.2d at 1519. Similarly, I would not conclude that the Government’s installation of a transponder and other alterations to the aircraft equates to control over the physical operation of the plane. These modifications were necessary to secure minimum safety. See id.

I agree with the district court that the record presented on the motion for summary judgment justified its ruling, as a matter of law, that the pilots were not acting as employees of the Government. The majority wisely, in my view, refuses to direct entry of judgment for P&W.

I recognize that inferences to be drawn from undisputed facts may present a jury question if reasonable minds may differ regarding those inferences. Here, on the pivotal questions, there are no conflicting inferences.

I would affirm.