SCOTUS Denies Cert In Case About Preemption When Military Contractors Perform Combat-Related Functions: United States Suggests That "Arising Out Of" Combatant Activities Is Highly Fact-Specific Analysis

• Published date: 15 June 2023
• Subject Matter: Transport, Aviation
• Law Firm: Jenner & Block
• Author: Matthew S. Hellman and Lenny Powell

Recently, the Supreme Court denied certiorari in Midwest Air Traffic Control Service, Inc. v. Badilla, No. 21-867, a case about the scope of federal preemption of state law claims when government contractors perform combat-related functions. The Supreme Court's denial lets stand the decision of the Second Circuit requiring that military contractors "show the military specifically authorized or directed the action giving rise to the claim."¹ It follows a brief from the United States recommending that the Court deny the case and suggesting that the preemption inquiry in this area is highly fact specific.

In October 2010, a cargo plane crashed near Kabul Afghanistan International Airport (KAIA), an airport that at the time served as a central hub for US and North Atlantic Treaty Organization (NATO) operations in Afghanistan. Though designated as a civilian airport, KAIA served a mix of military and civilian aircraft, and NATO supervised operation of KAIA's control tower. During the night of the crash, Midwest Air Traffic Control Service, Inc. (Midwest ATC), a US military subcontractor, provided the air traffic control services at KAIA. The cargo plane, which was leased to a US airline, was returning to its base of operations in Kabul from the US Bagram Air Base. The crash killed all eight people on board.

Administrators of the estates of six of the crash victims sued Midwest ATC under state tort law in New York, alleging that petitioner's controller acted negligently in his interactions with the pilot of the cargo plane. After removal to federal court, Midwest ATC asserted that the state claims were preempted by federal law, and the district court agreed. Relying on the Supreme Court's decision in Boyle v. United Technologies Corp.,² the district court determined that the claims were preempted by the federal interests embodied in the combatant activities exception in the Federal Tort Claims Act (FTCA), which covers "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war."³

The Second Circuit reversed. Agreeing with the district court and the decisions of several other federal circuits, the Second Circuit concluded that the uniquely federal interests embodied in the FTCA's combatant activities exception may conflict with, and consequently may preempt, state-law claims against military contractors in appropriate circumstances. But the Second Circuit noted "disagreement" among the other...