Dayton v. State of Alaska
ORDER granting 86 Motion to Vacate; granting 90 Motion to Supplement Record; judg at dkt 82 vacated; plf may move for reconsideration of ord at dkt 81 w/i 14 days from date of this ord; State to respond to mot for reconsideration w/i 14 days of svc of mot; reply due w/i 7 days of svc of response. Signed by Judge John W. Sedwick on 7/17/15. (PRR, COURT STAFF)
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
THERESA DAYTON, PERSONALLY,
AND AS THE REPRESENTATIVE
OF THE ESTATE OF THOMAS E.
STATE OF ALASKA,
Defendant and Third)
THE UNITED STATES OF AMERICA, )
Third-Party Defendant. )
ORDER AND OPINION
[Re: Motions at Docs. 86 and 90]
I. MOTIONS PRESENTED
At docket 86 plaintiff Theresa Dayton (“Dayton”) moves to vacate the judgment
at docket 82. Defendant and third-party plaintiff State of Alaska (“the State”) responds
at docket 91. Dayton replies at docket 100. At docket 90 Dayton moves to supplement
the record. The State responds at docket 94. Dayton replies at docket 101. It should
be noted that the text of and supporting affidavit for the motions at dockets 86 and 90
are identical. The motion was filed twice because the Clerk deemed the first motion at
docket 86 to be in violation of D.Ak. L.R. 7.1(1) prohibiting the filing of “Combined
Documents.” Oral argument was not requested on either motion, and it would not
assist the court.
Dayton sued the State for the wrongful death of Thomas Cicardo, who was a
member of the flight crew aboard a United States Air Force C-17 when it crashed during
an Alaska Air National Guard (AANG) practice flight in preparation for a public air show.
All of the flight crew perished in the crash. Dayton filed suit in state court. Her action
against the State relies on Alaska Statute § 26.05.145(b), w hich allows a member of the
military to bring an action against the State for damages that have occurred “as a result
of intentional misconduct within the course and scope of employment or agency and
with complete disregard for the safety and property of others.”1
The State filed a third-party complaint against the United States and the estates
of the flight crew alleging negligence pursuant to the Federal Tort Claims Act, 28 U.S.C.
§§ 1346(b), 2671 et seq. (“FTCA”). The State alleged that all crew members were
acting as employees of the United States at the time of the crash.
The United States removed the case to federal court. The United States then
filed a certification that the flight crew were employees of the United States at the time
of the crash and substituted itself in place of the defendant estates. It then filed a
Alaska Stat. § 26.05.145(b).
motion to dismiss at docket 9, arguing that, pursuant to Feres v. United States, 2 the
FTCA does not waive sovereign immunity for allegedly tortious conduct that is incident
to military service. Neither Dayton nor the State opposed the motion. Feres holds that
the FTCA does not waive sovereign immunity for allegedly tortious conduct that is
incident to military service and thus clearly bars suits brought by service members
against the United States and any third-party actions against the United States arising
from injuries to service members incident to their military service.3
The State moved to dismiss Dayton’s claims on the grounds that the AANG is a
hybrid component of the United States armed forces and that the United States
admitted that the flight crew were employees of the United States, so that the Feres
doctrine barred Dayton’s claim against the State. Dayton opposed the motion to
dismiss and moved to remand the lawsuit to state court, arguing that all which remained
in the litigation were state law claims. The court denied the State’s motion and granted
Dayton’s motion to remand.4
The State filed a notice of appeal. The Ninth Circuit reversed the remand order,
and the lawsuit returned to this court’s docket. The State moved a second time to
dismiss Dayton’s claims. The motion was granted,5 and judgment was entered against
340 U.S. 135 (1950).
Id. at 146; Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 673 (1977).
Order at doc. 39. The State moved for reconsideration, but that request was denied in
an Order at doc. 43.
Order at doc. 81.
Dayton.6 Dayton’s motion at docket 86 seeks to vacate the judgment. Dayton’s motion
at docket 90 seeks to supplement the record.
At docket 81, the court noted that Dayton’s claim is based on the allegation that
the pilot engaged in intentional misconduct when he deviated from military standards
and procedures during the practice flight at issue and, therefore, the resolution of the
case will necessarily involve uniquely military issues and military expertise. The court
concluded that because the case will involve uniquely military standards and military
expertise, intra-military immunity would apply under state law based on dicta in Himsel
v. State.7 The court therefore dismissed the complaint. The court had issued the order
on a preliminary basis at docket 79, three days before oral argument, but after hearing
from the parties, the court concluded its analysis was correct and promptly issued the
order in final form.
Dayton argues that the court’s dismissal relied on grounds not raised by the
State in its motion and that she was not given sufficient opportunity to address the issue
of state intra-miliary immunity as it was discussed by the court. She also notes that at
oral argument she informed the court that her state tort claim could proceed on the
basis of purely civilian standards, without involvement of military matters, and offered to
provide supplemental evidence to show that, despite the language in her complaint, the
36 P.3d 35 (Alaska 2001).
pilot’s conduct was also in violation of civil aviation standards. 8 The State responds by
arguing that the applicability of Himsel has been at the forefront of the parties’ motion
practice and that there has been ample briefing regarding the correct interpretation of
that case. The State emphasizes that it argued that Himsel would not bar application of
intra-military immunity under state law because the flight at issue in this case was a
military training mission.9
The court has reviewed the current briefing and the parties’ prior motion papers.
While Himsel has been a focus of the parties’ briefing, the case was primarily cited and
analyzed with regard to whether the pilot’s employment status precluded a state law
claim. Indeed, the State did not move for dismissal and summary judgment based on
state intra-military immunity grounds; the basis for its motion at docket 57 was the
applicability of federal immunity under the Feres doctrine given the pilot’s employment
status. The court rejected the State’s argument saying, as it had at docket 39, that
Dayton’s complaint raises a purely state law claim and that federal immunity does not
apply. Thus, the court found that the issue was whether state law provides the State
immunity from suit in the particular factual situation presented. It is true that the State
argued Himsel would not preclude the applicability of intra-military immunity outright, but
the argument was presented in its reply brief, and the State argued that such immunity
should apply because the flight was a military training mission, a fact which Dayton
disputed. The court agreed with the State that Himsel did not preclude intra-military
Doc. 99 at pp. 8-9.
Doc. 64 at p. 9.
immunity in all situations and that such immunity would apply to the situation presented
here, but not on the grounds that the flight was a military training mission. The court
avoided considering whether the flight was a military training mission by finding that
immunity would apply regardless of the type of flight, because as pled in detail in the
complaint, Dayton’s claim seemed to rest exclusively on the violation of military
procedures and standards.
A court cannot sua sponte dismiss a complaint for failure to state a claim without
providing notice and the opportunity for written briefing,10 and allowing an adequate
opportunity to respond is “fundamental to due process.” 11 While Dayton had notice of
the court’s intention from the preliminary order filed prior to oral argument, the court did
not allow Dayton the opportunity to provide a written response. Dayton must be given
the opportunity to show in writing why the court’s analysis of state law intra-military
immunity is incorrect.
Dayton also asks for an opportunity to argue that she may proceed on the theory
that the pilot’s actions were in violation of civilian aviation standards despite the fact that
her complaint speaks exclusively in terms of the violation of military standards. The
court finds that Dayton’s desire to make that showing is sufficiently bound up in the
court’s conclusions about the state law of intra-military immunity that she should be
afforded a chance to pursue this subject in writing. Dayton points to an expert’s
affidavit with which she would supplement the record to show that she could have made
Lee v. City of L.A., 250 F.3d 668, 683 n.7 (9th Cir. 2001).
See Nelson v. Adams, 529 U.S. 460, 461 (2000).
such an argument had she known its relevance to the court’s decision. The court’s
procedural error warrants granting Dayton’s request to vacate the judgment and
granting her request to supplement the record with the expert’s affidavit.
Not yet thoroughly addressed by the parties is the possibility that even if Dayton
may proceed with a claim based on the violation of civil aviation standards, that
approach cannot be used because the f light was a military flight which makes the
military standards controlling. The court realizes that Dayton has argued the flight was
not a military flight, but finds that this issue was insufficiently addressed by the parties in
the earlier motion papers, and it certainly was not specifically addressed by the court in
its order at docket 81.
For the reasons above, the motions at docket 86 and 90 are GRANTED as
(A) The judgment at docket 82 is VACATED.
(B) Dayton may move for reconsideration of the order at docket 81.
(C) Dayton’s motion for reconsideration must be filed within 14 days from the
date of this order and shall be limited to the following issues: (1) is the court’s exposition
of state law intra-military immunity in the order at docket 81 correct; (2) despite her
complaint’s very specific references to the violation of military standards as the basis for
liability, may Dayton proceed on the basis that the crash was caused by the violation of
civilian standards; (3) was the flight a military flight; and (4) if it was a military flight, may
Dayton nevertheless proceed on the theory that the pilot violated civil aviation
standards. The State is directed to respond to Dayton’s motion within fourteen days
from service of the motion for reconsideration, and Dayton may reply within seven days
from service of the response.
DATED this 17th day of July 2015.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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