PATRICIA LACOURSE, Individually and as personal representative of the Estate of Lt. Colonel Matthew LaCourse, Plaintiff - Appellant, versus PAE WORLDWIDE INCORPORATED, et al., Defendants, DEFENSE SUPPORT SERVICES LLC, Witness 7, Witness 8, Witness 9, JOHN DOES, 1 through 10 inclusive, Defendants - Appellees.
No. 19-13883
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
November 17, 2020
D.C. Docket No. 3:16-cv-00170-RV-HTC. [PUBLISH]
Appeal from the United States District Court for the Northern District of Florida
Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.
This appeal requires us to decide whether and to what extent the Death on the High Seas Act,
For the reasons that follow, we hold that DOHSA governs LaCourse‘s action, that it provides LaCourse‘s exclusive remedy and preempts her other claims, and that PAE is entitled to the protection of the government-contractor defense.
A
The tragic story underlying this appeal began when an Air Force F-16 fighter jet departed Tyndall Air Force Base, east of Panama City, Florida, for a continuation-training sortie. The only person on board was the pilot, Matthew LaCourse, a retired Air Force Lieutenant Colonel employed as a civilian by the Department of Defense. The plan was for Lt. Col. LaCourse to take the jet out over the Gulf of Mexico, perform a series of training maneuvers, and then return to Tyndall. Unfortunately, he never came back. During the flight—for reasons the parties dispute—the F-16 crashed into the Gulf more than twelve nautical miles offshore. Sadly, Lt. Col. LaCourse was killed.
Five years prior to the accident, PAE‘s predecessor—Defense Support Services—had been awarded a contract with the Air Force to provide aircraft service and maintenance at Tyndall, including, as it turns out, on the F-16 that Lt. Col. LaCourse was flying when he crashed. In performing under the contract, PAE was required to follow detailed guidelines and adhere to specific standards, including Air Force Instructions (AFIs), Technical Orders (TOs), and Job Guides (JGs), all of which were prepared by or on behalf of the Air Force.
F-16s are equipped with two hydraulic systems: A and B. The systems operate independently of one another and are designed to allow the plane to continue to fly in the event that one of them fails. Beginning two months before the crash, the jet at issue here experienced a succession of problems that implicated one or both of its hydraulic systems. In particular, on separate occasions: (1) hydraulic fluid was discovered in the outboard flight-control accumulator gauge; (2) System B‘s hydraulically actuated landing gear twice failed to retract during flight; (3) a hydraulic system pressure-line clamp on System A broke; (4) System B‘s reservoir accumulator was found to be depleted; (5) a pre-flight control check revealed a hydraulic leak; (6) System A‘s cockpit indicator showed no pressure and System B‘s flight-control accumulator pre-charge was low; and (7) both systems failed a “confidence run.”1 The F-16 was serviced and parts were repaired or replaced as these problems were identified.
On the day of the crash, the F-16 experienced two issues shortly before takeoff. First, the emergency-power unit took longer than expected to activate during the pre-flight check. Second, and more importantly for our purposes, the jet initially failed the “pitch-override check“—in which the pilot applies full pressure to the stick and presses a switch to make the stabilizers at the tail move a few inches or degrees in a nose-down direction. Despite these two “hiccups,” as one witness called them, the jet ultimately passed all of its pre-flight checks, which indicated no problem with the hydraulic systems. The PAE mechanics who conducted the pre-flight checks were satisfied that the plane was safe to operate, and they released it for flight.
During the sortie, the F-16 performed a number of aerial maneuvers leading up to a “pitch-back“—an over-the-shoulder tactical maneuver in which the pilot uses the pitch axis to rejoin another aircraft. By all accounts, everything leading up to the pitch-back appeared normal—i.e., no gauge, light, warning, or caution indicated
B
Lt. Col. LaCourse‘s widow and personal representative, Patricia LaCourse, filed this wrongful-death action and jury demand in Florida state court alleging state-law claims for negligence, breach of warranty, and breach of contract. PAE removed the case to federal court based on federal-officer jurisdiction, diversity jurisdiction, and jurisdiction under DOHSA—which, in relevant part, confers admiralty jurisdiction “[w]hen the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas.”
Once in federal court, PAE moved for partial summary judgment, arguing that DOHSA governed LaCourse‘s suit and, accordingly, that any potential recovery should (per the statute) be limited to pecuniary damages. The district court granted PAE‘s motion and held that DOHSA applies and “provides the exclusive remedy for death on the high seas, preempts all other forms of wrongful death claims, and only permits recovery for pecuniary damages.”
PAE then filed a motion to strike—or, in the alternative, for partial summary judgment—asking the district court to strike LaCourse‘s state-law breach-of-warranty and breach-of-contract claims, as well as her jury demand. The district court again granted PAE‘s motion, concluding that because DOHSA preempts all other wrongful-death causes of action, LaCourse‘s warranty and contract claims had to be stricken. The district court further held that because all that remained was the DOHSA claim, LaCourse was not entitled to a jury trial.
PAE subsequently moved for final summary judgment, contending that it was protected by the “government contractor” defense, which extends the United States’ sovereign immunity to a federal-government contractor, thereby shielding it from civil liability, provided that, among other things, the contractor complies with reasonably precise government specifications. The district court once again agreed with PAE and granted it summary judgment on government-contractor grounds.
This is LaCourse‘s appeal.3
Before us, LaCourse argues that the district court erred in several ways. First, she contends that the court wrongly held that DOHSA governs this case—both (1) because by its plain terms DOHSA applies only when a death is caused by “wrongful act, neglect, or default occurring on the high seas,” whereas the alleged negligence here occurred on land, and (2) because, in any event, her husband‘s plane crash lacked a “maritime nexus.” Second, LaCourse argues that the district court erred in striking her breach-of-warranty and breach-of-contract claims because they don‘t seek a remedy broader than DOHSA and therefore aren‘t preempted. Finally, she asserts that the district court improperly applied the government-contractor defense because PAE failed to show that it complied with the Air Force‘s reasonably precise specifications for maintaining the F-16.4
We will examine each contention in turn.5
A
The first question we must address is whether DOHSA applies to LaCourse‘s suit. The district court held that it does; LaCourse insists that it doesn‘t.
In relevant part, DOHSA‘s operative provision states that
[w]hen the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas . . . the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible.
1
LaCourse first argues that the district court erred in holding that DOHSA applies because the “wrongful act, neglect, or default” asserted here—PAE‘s negligent maintenance of the F-16—did not “occur[] on the high seas,” as the Act‘s plain language requires. Rather, she says, the alleged negligence occurred on land—when the jet was improperly serviced at Tyndall Air Force Base. Accordingly, LaCourse contends, DOHSA doesn‘t apply to her suit.
If we were writing on a clean slate, we would almost certainly agree. LaCourse is
claims arising out of airplane crashes on the high seas though the negligence alleged to have caused the crash occurred on land.” 499 F.2d 263, 272 n. 17 (5th Cir. 1974) (emphasis added); accord, e.g., Smith v. Pan Air Corp., 684 F.2d 1102, 1111 (5th Cir. 1982) (“[T]he simple fact that [plaintiff‘s] death occurred as a result of an aircraft crash into the high seas is alone enough to confer jurisdiction under the DOHSA. . . . [A]dmiralty jurisdiction has repeatedly been extended to cases in which death or injury occurred on navigable waters even though the wrongful act occurred on land. The place where the negligence or wrongful act occurs is not decisive.“) (footnote omitted). It‘s not for the three of us to second-guess the correctness of Offshore Logistics or Dearborn Marine. Because we are bound by those decisions, we are constrained to agree with the district court that DOHSA applies despite the fact that PAE‘s alleged negligence occurred on land at Tyndall Air Force Base.
2
LaCourse separately argues that DOHSA doesn‘t govern here because the plane crash that killed her husband lacked a “maritime nexus,” which she insists is required by the Supreme Court‘s landmark admiralty decision in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972).
In that case, a plane flying from Ohio to Maine crashed into Lake Erie after striking a flock of seagulls shortly after takeoff. Id. at 250. Although the crew wasn‘t injured, the plane was a total loss, so its owners brought an action in admiralty, alleging negligence by several airport employees. Id. at 250-51. The Supreme Court held that maritime locality alone—there, Lake Erie‘s navigable waters—is not a sufficient predicate for admiralty jurisdiction in aviation-tort cases, and that “in the absence of legislation to the contrary,” claims arising from airplane crashes are not cognizable in admiralty unless the alleged wrong bears “a significant relationship to traditional maritime activity“—i.e., has a maritime nexus. Id. at 268. Because the flight in Executive Jet “would have been almost entirely over land . . . within the continental United States” and was “only fortuitously and incidentally connected to navigable waters,” the Court determined that it bore “no relationship to traditional maritime activity“—and, accordingly, that admiralty jurisdiction was lacking. Id. at 272-73. LaCourse argues that, like the flight in Executive Jet, her husband‘s flight—which was intended to begin and end at Tyndall Air Force Base—
The problem with LaCourse‘s argument is that Executive Jet didn‘t involve DOHSA—there were no injuries, let alone any fatalities to support a wrongful-death claim. Id. at 250. And significantly, the Supreme Court was careful there to include a caveat when announcing its holding—namely, that a maritime nexus is required only “in the absence of legislation to the contrary.” Id. at 268. And indeed, the Court in a footnote specifically identified DOHSA as an example of a statute that would constitute “legislation to the contrary.” Id. at 274 n. 26.
If Executive Jet stood alone, LaCourse‘s maritime-nexus argument might still have a chance. In flagging DOHSA as an example of “legislation to the contrary,” the Court suggested that the Act might apply only to flights that require traversing the high seas: “Some such flights, e.g., New York City to Miami, Florida, no doubt involve passage over ‘the high seas beyond a marine league from the shore of any State.’ To the extent that the terms of the Death on the High Seas Act become applicable to such flights, that Act, of course, is ‘legislation to the contrary.‘” Id. (emphasis added). Because Lt. Col. LaCourse‘s sortie didn‘t require him to fly over the ocean, the argument would go, it wasn‘t one of the “such flights” that the Executive Jet Court thought DOHSA would cover.
But Executive Jet wasn‘t the Supreme Court‘s last word on DOHSA‘s application to aviation-based torts. Rather, as already explained, the Court held in Offshore Logistics that DOHSA applies to all cases—including aviation-related cases—in which a death occurs on the high-seas. See 477 U.S. at 218. In the course of so holding, the Court explained the applicability (or non-applicability, as the case may be) of the maritime-nexus requirement in these terms: “[A]dmiralty jurisdiction is expressly provided under DOHSA [where] the accidental deaths occurred beyond a marine league from shore. Even without this statutory provision, admiralty jurisdiction is appropriately invoked here under traditional principles because the accident occurred on the high seas and in furtherance of an activity bearing a significant relationship to a traditional maritime activity.” Id. at 218-19 (emphasis added). Translation: Where a death occurs on the high seas, DOHSA applies, full stop; separately, in a non-DOHSA case, maritime jurisdiction might still exist, provided that there is a maritime nexus. To the extent that Executive Jet‘s New-York-to-Miami footnote left any doubt, Offshore Logistics clarified that the occurrence of a death on the high seas is a sufficient condition to DOHSA‘s application—without any further maritime-nexus gloss.7
B
Having concluded that DOHSA applies to LaCourse‘s action, we must now determine whether it provides her exclusive remedy, such that it preempts all other claims arising out of her husband‘s crash.
The district court concluded that LaCourse‘s breach-of-warranty and breach-of-contract claims—both of which she initially brought under Florida‘s Wrongful Death Act,
Again, while it seems to us that LaCourse might have the plain language on her side—in a section titled “Nonapplication,” DOHSA expressly states that it “does not affect the law of a State regulating the right to recover for death,”
Put simply, under Offshore Logistics,
C
Having concluded that DOHSA governs LaCourse‘s suit and supplies her exclusive remedy, we must now determine whether LaCourse‘s claim is barred by
The Supreme Court fashioned the government-contractor defense in Boyle v. United Technologies Corporation, 487 U.S. 500 (1988). There, the Court held, in a suit alleging design defects in military equipment, that a private contractor could partake of the United States’ sovereign immunity so long as the following three conditions were satisfied: “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” Id. at 512.
Although Boyle dealt specifically with government procurement contracts, we extended its analysis to cover government service contracts in Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329 (11th Cir. 2003). To account for the contextual switch from a design-defect case to a negligent-maintenance case, we rejiggered the defense‘s three elements as follows: “(1) the United States approved reasonably precise maintenance procedures; (2) [the contractor‘s] performance of maintenance conformed to those procedures; and (3) [the contractor] warned the United States about the dangers in reliance on the procedures that were known to [the contractor] but not to the United States.” Id. at 1335.
Helpfully, the parties have narrowed the focus here. LaCourse concedes that the Air Force provided reasonably precise maintenance procedures, so there‘s no question that the first Boyle/Hudgens element is satisfied. And the district court held that the third element “does not apply because (as PAE has argued, and as the plaintiff has not disputed) there is no contention that PAE had knowledge that it withheld from the government,” and neither party appears to take issue with that conclusion. So all seem to agree that the application of the government-contractor defense here turns on the second Boyle/Hudgens element—whether, in servicing the F-16, PAE conformed to the Air Force‘s reasonably precise maintenance procedures.
In its summary-judgment motion, PAE argued that its maintenance conformed to the government‘s reasonably precise procedures, and it cited an abundance of supporting evidence, including deposition testimony from multiple employees, an
In the “Statement of Facts” section of her opening brief on appeal, LaCourse identified three Air Force maintenance procedures under the subheading “The Defendant‘s Lack of Compliance with the Air Force‘s Specifications and Instructions.” First, she stated that under
LaCourse‘s contention that PAE violated reasonably precise maintenance procedures—so as to foreclose its reliance on the government-contractor defense—fails on numerous grounds. As an initial matter, she has almost certainly abandoned her arguments based on the procedures she cites. We have repeatedly held that an appellant abandons an argument on appeal when she fails to “specifically and clearly identif[y]” it or “plainly and prominently” raise it in her opening brief. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004); Cole v. U.S. Att‘y Gen., 712 F.3d 517, 530 (11th Cir. 2013). In particular, we will deem an appellant to have abandoned an argument where she makes only “passing references” to it in the background sections of her brief—or, for that matter, even the brief‘s argument section. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681-82 (11th Cir. 2014). Under our consistent precedent, LaCourse‘s scattered references to Air Force procedures in the “Statement of the Facts” section of her opening appellate brief—followed by a single (and vague) invocation of ”
Moreover, and in any event, LaCourse‘s arguments fail on the merits. With respect to
In resisting the application of the government-contractor defense, LaCourse cited testimony from Timothy Davis and Michael Bogaert—PAE employees tasked with the preflight checks on the day of the crash—both of whom testified that Bogaert (1) didn‘t see the stabilizers move as far as they should have during the initial pitch-override check and (2) instructed Lt. Col. LaCourse to repeat the sequence until the stabilizers performed properly. LaCourse contends that the jet should have been grounded after the first sequence. PAE counters that Bogaert‘s description of the check indicates that Lt. Col. LaCourse simply wasn‘t performing the sequence properly, not that there was any sort of issue with the control.
By way of background, here is the relevant portion of Bogaert‘s testimony:
Q: During the pitch override check, did you see the horizontal stabs move at all?
A: After I got on the headset, after when [Mr. Davis] had finished checking brakes, I got on a headset with [Lt. Col. LaCourse] and asked him if he had done it. He said yes. I told him I didn‘t see it. He said do you want me to do it again. I said yes, if you don‘t mind. At which point he tried to do it again, and they didn‘t move. And I asked him, are you holding the stick full forward, and he wasn‘t. He was just pushing, and they‘re reaching over and he‘s releasing his pressure on the stick, is my best guess. But I told him, no, [Lt. Col. LaCourse], that‘s not it, and asked him, are you holding the stick full forward as you hit that switch. And he did that, and it worked perfect. He released. I said that‘s what I was looking for, technique.
Even aside from abandonment, there are several problems with LaCourse‘s
Second, LaCourse has pointed to no expert testimony or other evidence connecting attorney argument (or, more precisely, attorney factual recitation) to an actual
Finally, even under the most charitable reading, Bogaert‘s testimony describes not a breach of procedure, but a likely pilot error—Lt. Col. LaCourse, Bogaert said, simply wasn‘t performing the check properly. Bogaert explained that Lt. Col. LaCourse wasn‘t “holding the stick full forward” and that once he performed the check using the proper technique, it “worked perfect[ly].”
For all these reasons, even if LaCourse had properly presented an argument that PAE violated
* * *
In sum, LaCourse failed to produce evidence sufficient to create a genuine issue of material fact that PAE violated government procedures. LaCourse‘s real argument seems to be that PAE‘s mechanics should have dug deeper into the F-16‘s hydraulic-related problems, because, had they done so, they would have discovered that the hydraulic systems were compromised. But while what LaCourse and her experts believe PAE should have done differently surely has some bearing on the merits of her DOHSA-based negligence claim, it is irrelevant to the question whether PAE is protected by the government-contractor defense. All that matters on that score is whether PAE violated reasonably precise government procedures, and based on the evidence presented from both parties we conclude that it did not. Accordingly, we affirm the district court‘s decision that PAE is entitled to summary judgment on government-contractor grounds.
III
For the foregoing reasons, we hold that DOHSA applies to and governs LaCourse‘s case, that the Act provides her exclusive remedy, and that PAE is shielded from liability by the government-contractor defense. Accordingly, we affirm the district court‘s grant of summary judgment in favor of PAE.
AFFIRMED.
NEWSOM, Circuit Judge, with whom WILSON, Circuit Judge, joins, concurring:
I write separately to explain that, while I agree that we must follow existing precedent to hold that DOHSA applies to (and thereby supplies the exclusive wrongful-death remedy for) any claim arising out of a death occurring on the high seas—even where, as here, the negligence alleged to have caused the death occurred on land—I do so holding my nose, as DOHSA‘s plain language is squarely to the contrary.
As a refresher, DOHSA‘s operative provision states in relevant part that “[w]hen the death of an individual is caused by a wrongful act, neglect, or default occurring on the high seas . . . the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible.”
LaCourse‘s logic, it seems to me, is unassailable. By its plain terms, DOHSA limits its application to instances in which the “wrongful act, neglect, or default occur[ed] on the high seas,” regardless of where the resulting death occurred. Indeed, there is no reasonable reading of the Act by which the phrase “occurring on the high seas” modifies the word “death” rather
Somehow, though, precedent—mounds of it, some of it binding on us—has whistled past the text‘s unmistakable focus of the location of the alleged negligence as the decisive factor for determining DOHSA‘s applicability. For instance—
- Miles v. Apex Marine Corp., 498 U.S. 19, 25 (1990) (“DOHSA . . . create[ed] a wrongful death action for all persons killed on the high seas.“)
- Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218 (1986) (“Here, admiralty jurisdiction is expressly provided under DOHSA because the accidental deaths occurred beyond a marine league from shore.“)
- Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 620 (1978) (noting that DOHSA creates “a remedy in admiralty for wrongful deaths more than three miles from shore“)
- In re Dearborn Marine Serv., Inc., 499 F.2d 263, 272 n. 17 (5th Cir. 1974) (“DOHSA has been construed to confer admiralty jurisdiction over claims arising out of airplane crashes on the high seas though the negligence alleged to have caused the crash occurred on land.“)
- Bergen v. F/V ST. PATRICK, 816 F.2d 1345, 1348 (9th Cir. 1987) (“[DOHSA] has been held to refer to the site of an accident on the high seas, not to where . . . the wrongful act causing the accident may have originated.“)
- Smith v. Pan Air Corp., 684 F.2d 1102, 1111 (5th Cir. 1982) (“[T]he simple fact that [plaintiff‘s] death occurred as a result of an aircraft crash into the high seas is alone enough to confer jurisdiction under the DOHSA. . . . [A]dmiralty jurisdiction has repeatedly been extended to cases in which death or injury occurred on navigable waters even though the wrongful act occurred on land. The place where the negligence or wrongful act occurs is not decisive.“) (footnote omitted)
I could go on and on and on—this is but a small sampling of cases holding that DOHSA applies to any claim arising out of a death occurring on the high seas, wholly without regard to where the underlying negligence occurred. But again, that seems obviously wrong to me.
I‘m not the first to recognize the textual disconnect. The Fifth Circuit, for instance, once remarked that “[a]t first glance, the plain text of this statutory provision seems to indicate that DOHSA is implicated only when the wrongful act precipitating death occurs on the high seas.” Motts v. M/V Green Wave, 210 F.3d 565, 569 (5th Cir. 2000). But the court went on: “As subsequent courts have interpreted DOHSA, however, the statute‘s application is not limited to negligent acts that actually occur on the high seas. The Supreme Court has repeatedly noted that when the death itself occurs on the high seas, DOHSA applies.” Id. My only disagreement with the Fifth Circuit‘s assessment is the “at first glance” part. I‘ve read
So how did we get ourselves into this predicament—reading DOHSA to mean something that it obviously doesn‘t say? The answer, apparently, traces back to century-old admiralty law premised on a “consummation of the injury” theory. See e.g., In re Dearborn Marine, 499 F.2d at 274 (“Historically maritime jurisdiction has been measured by the locality of the wrong with locality defined as where the ‘substance and consummation of the injury’ took place.“) (citing The Plymouth, 70 U.S. (3 Wall.) 20, 33 (1866)) (footnote omitted). Put simply, if a claim is premised on a negligence theory, the underlying negligence isn‘t complete until it is “consummated in an actual injury.” Lasky v. Royal Caribbean Cruises, Ltd., 850 F. Supp. 2d 1309, 1312 (S.D. Fla. 2012). So, the argument goes, a DOHSA claim for wrongful death based on negligent service—as we have here—accrues at the time and place where the allegedly wrongful act culminates in an actual injury (the high seas), not when and where the negligence itself allegedly occurred (at Tyndall Air Force Base).
That‘s fine. It‘s just not what the statute says. DOHSA doesn‘t say that the decedent‘s personal representative may bring an action “when the death of an individual occurring on the high seas is caused by wrongful act, neglect, or default“; rather, it says that the personal representative can sue “[w]hen the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas.”
Bottom line: As in all cases, we should give effect to DOHSA‘s unambiguous language. See, e.g., Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992) (“The controlling principle in this case is the basic and unexceptional rule that courts must give effect to the clear meaning of statutes as written.“). If it were up to me, I would hold that DOHSA doesn‘t apply here because the alleged negligence—the failure to properly maintain the F-16 that Lt. Col. LaCourse was piloting when he crashed—occurred on land, not on the high seas.
KEVIN C. NEWSOM
UNITED STATES CIRCUIT JUDGE