No. 21-867
`In the Supreme Court of the United States
`
`MIDWEST AIR TRAFFIC CONTROL SERVICE, INC.,
`PETITIONER
`
`
`
`v.
`
`JESSICA T. BADILLA, ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`
`
`
` ELIZABETH B. PRELOGAR
`Solicitor General
`Counsel of Record
`BRIAN M. BOYNTON
`Principal Deputy Assistant
`Attorney General
`EDWIN S. KNEEDLER
`Deputy Solicitor General
`YAIRA DUBIN
`Assistant to the Solicitor
`General
`MICHAEL S. RAAB
`GERARD SINZDAK
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`

`

`QUESTION PRESENTED
`
`Petitioner is a U.S. military subcontractor that pro-
`vided air traffic control services at Kabul Afghanistan
`International Airport. Respondents brought state-law
`tort claims alleging that an air traffic controller em-
`ployed by petitioner acted negligently in instructing a
`civilian cargo plane that was travelling from the U.S.
`Bagram Air Base to the airport, causing a fatal crash.
`The question presented is whether those tort claims are
`preempted by the interests embodied in the Federal
`Tort Claims Act’s combatant activities exception, 28
`U.S.C. 2680(j).
`
`
`(I)
`
`

`

`

`

`TABLE OF CONTENTS
`
`Page
`
`Interest of the United States....................................................... 1
`Statement ...................................................................................... 1
`Discussion ...................................................................................... 7
`A. The federal interests embodied in the FTCA’s
`combatant activities exception do not preempt
`respondents’ state-law claims .......................................... 8
`B. Further review is not warranted at this time............... 16
`Conclusion ................................................................................... 19
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`
`
`Al Shimari v. CACI Int’l, Inc., 679 F.3d 205
`(4th Cir. 2012) ...................................................................... 12
`Banco Nacional de Cuba v. Sabbatino,
`376 U.S. 398 (1964)................................................................ 8
`Boyle v. United Techs. Corp., 487 U.S. 500 (1988) ...... 5, 8-10
`Dolan v. United States Postal Serv.,
`546 U.S. 481 (2006).............................................................. 12
`Harris v. Kellogg Brown & Root Servs., Inc.,
`724 F.3d 458 (3d Cir. 2013), cert. denied,
`574 U.S. 1120 (2015) ............................................. 5, 11-13, 18
`Johnson v. United States, 170 F.2d 767 (9th Cir. 1948) ...... 13
`KBR, Inc. Burn Pit Litig., In re,
`744 F.3d 326 (4th Cir. 2014),
`cert. denied, 574 U.S. 1120 (2015) .......................... 11-13, 18
`Koohi v. United States, 976 F.2d 1328
`(9th Cir. 1992), cert. denied,
`508 U.S. 960 (1993)............................................ 11, 12, 17, 18
`Perpich v. Department of Defense,
`496 U.S. 334 (1990).............................................................. 10
`
`
`
`(III)
`
`

`

`IV
`
`Cases—Continued:
`
`Page
`
`Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009),
`cert. denied, 564 U.S. 1037 (2011) ............................... 11, 18
`Texas Indus., Inc. v. Radcliff Materials, Inc.,
`451 U.S. 630 (1981)................................................................ 8
`Torres v. Texas Dep’t of Pub. Safety,
`142 S. Ct. 2455 (2022) ......................................................... 10
`United States v. Shearer, 473 U.S. 52 (1985) ...................... 12
`
`Constitution and statutes:
`U.S. Const.:
`Art. I:
`§ 8, Cls. 12-13 ............................................................. 10
`§ 10 .............................................................................. 10
`Art. VI, Cl. 2 (Supremacy Clause) ................................. 10
`Federal Tort Claims Act,
`28 U.S.C. 1346(b), 2671 et seq. ............................................. 4
`28 U.S.C. 2671 ................................................................ 5, 9
`28 U.S.C. 2680(a) ............................................................... 9
`28 U.S.C. 2680(b) ............................................................. 12
`28 U.S.C. 2680(h) ............................................................. 12
`28 U.S.C. 2680(j) ............................................. 4, 5, 8, 11-13
`28 U.S.C. 2680(k) ............................................................. 15
`
`Miscellaneous:
`
`Bradford R. Clark, Boyle As Constitutional
`Preemption, 92 Notre Dame L. Rev. 2129 (2017) ........... 10
`
`
`
`
`
`
`
`
`
`
`
`

`

`In the Supreme Court of the United States
`
`
`
`No. 21-867
`MIDWEST AIR TRAFFIC CONTROL SERVICE, INC.,
`PETITIONER
`
`v.
`
`JESSICA T. BADILLA, ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`
`
`
`INTEREST OF THE UNITED STATES
`This brief is submitted in response to the Court’s or-
`der inviting the Solicitor General to express the views
`of the United States. In the view of the United States,
`the petition for a writ of certiorari should be denied.
`
`STATEMENT
`This case involves state-law tort claims against peti-
`tioner for injuries allegedly caused by its negligent per-
`formance under a contract with the U.S. military in Af-
`ghanistan. The court of appeals reversed the dismissal
`of the claims on preemption and other grounds and re-
`manded for further proceedings.
`1. This case arises out of the fatal crash of a civilian
`cargo plane near Kabul Afghanistan International Air-
`port (KAIA) in October 2010. Pet. App. 2a, 6a-15a. At
`the time, KAIA was a central hub for certain U.S. and
`
`(1)
`
`

`

`2
`
`North Atlantic Treaty Organization (NATO) operations
`in Afghanistan. Id. at 53a-54a. But KAIA was desig-
`nated as a civilian airport. Id. at 54a. The air traffic at
`KAIA consisted of a mix of military aircraft, civilian air-
`craft supporting the military (such as cargo planes
`transporting supplies and personnel under contract
`with the U.S. military), and other civilian aircraft, in-
`cluding passenger flights. Id. at 3a, 53a-54a; C.A. App.
`558-559.
`The airport and its air traffic control tower belonged
`to Afghanistan, but NATO supervised operation of the
`tower, primarily to train Afghan civilians as tower con-
`trollers. Pet. App. 3a; see id. at 53a (the “main purpose”
`of NATO and military supervision of the control tower
`“was to train Afghans to take over responsibility for the
`tower”). Petitioner provided some of the air traffic con-
`trol services at KAIA as a subcontractor under a prime
`contract that another company had with the U.S. mili-
`tary. Id. at 4a, 51a-52a. The prime contract obligated
`Midwest to “provide all personnel, supervision, logistics
`support, and other items necessary to perform [air traf-
`fic control] services as defined in this [statement of
`work].” Id. at 4a (citation omitted; brackets in original).
`The contract further required that “[a]ll work per-
`formed by the Contractor in support of this [statement
`of work] shall be in accordance with applicable Federal
`Aviation Administration (FAA) or International Civil
`Aviation Organization [] standards and Department of
`Defense [] regulations as applicable.” Ibid. (citation
`omitted; first two sets of brackets in original).
`NATO and Afghan controllers conducted training
`and operated KAIA’s air traffic control tower during
`the day. Pet. App. 3a. Petitioner’s personnel took over
`the tower’s air traffic control operations at night and
`
`
`
`

`

`3
`
`were not responsible for training Afghan civilian con-
`trollers. Ibid. Petitioner’s controllers reported both
`to Midwest supervisors and to U.S. Air Force officers;
`the latter retained ultimate operational control of the
`tower while petitioner’s employees were on duty. Id. at
`4a-5a.
`One of petitioner’s controllers was directing air traf-
`fic at KAIA on the night of October 12, 2010. Pet. App.
`10a. Transafrik International Flight 662, a cargo plane
`leased to a U.S. airline that flew chartered cargo planes,
`was returning to its base of operations in Kabul from
`the U.S. Bagram Air Base, which was about 30 miles
`north of KAIA. Id. at 6a-7a, 54a. The Bagram-to-KAIA
`flight was the plane’s last scheduled sortie of the day.
`Id. at 6a. There were eight people on board, all of whom
`were Transafrik crew members and residents of the
`Philippines; the plane was “likely empty of cargo.” Ibid.
`The plane’s terrain-avoidance and ground-proximity
`warning systems were inoperable. Id. at 6a-7a. Alt-
`hough the flight departed after sunset, the plane’s pilot
`chose to operate according to Visual Flight Rules
`(VFR), under which the pilot, rather than the control
`tower, is responsible for identifying and avoiding obsta-
`cles. Id. at 6a, 8a. Flight 662 could not depart earlier
`because Boeing 747s, which were used to transport Af-
`ghans to Saudi Arabia for the Hajj, were parked on
`Transafrik’s ramp at KAIA during the day. Id. at 8a-
`9a.
`The air traffic control tower was equipped with a ra-
`dar presentation that served as a visual aid to sequence
`aircraft for landing, but the tower lacked equipment
`that would alert a controller to an aircraft’s proximity
`to terrain, such as the mountains surrounding KAIA.
`Pet. App. 3a. As Flight 662 approached KAIA,
`
`
`
`

`

`4
`
`petitioner’s controller, after initially clearing the plane
`to land, asked the pilot to instead extend the cargo
`plane’s flight path, thereby delaying its approach to en-
`able a civilian passenger plane to land first. Id. at 12a.
`The pilot agreed. Id. at 12a-13a. Shortly thereafter, the
`cargo plane crashed into a mountain east of the airport,
`killing everyone on board. Id. at 6a, 15a. Everyone in
`the control tower at that time was employed by peti-
`tioner. Id. at 10a.
`2. Respondents, the administrators of the estates of
`six of the eight victims, filed an action for damages
`against petitioner in New York state court, alleging that
`petitioner’s controller acted negligently in his interac-
`tions with the pilot of the cargo plane on the night of the
`crash. Pet. App. 15a-16a. After the case was removed
`to federal court, petitioner moved for summary judg-
`ment, arguing, among other things, that respondents’
`negligence claims were preempted by federal law. Id.
`at 17a.1
`Adopting a magistrate judge’s recommendation, 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), 28 U.S.C. 1346(b), 2671 et seq.,
`which excludes from the FTCA’s waiver of the sover-
`eign immunity of the United States “[a]ny claim arising
`out of the combatant activities of the military or naval
`forces, or the Coast Guard, during time of war,” 28
`U.S.C. 2680( j). Pet. App. 59a-71a. The district court
`
`
`1 The district court granted respondents’ unopposed motion to
`dismiss their claims against the lessor of the plane, and it dismissed
`respondents’ claims against National Air Cargo, the operator of the
`plane and the other remaining defendant, pursuant to a stipulation.
`Pet. App. 16a-17a & n.5; see id. at 6a.
`
`
`

`

`5
`
`further concluded that petitioner alternatively was en-
`titled to summary judgment because petitioner owed no
`duty of care to the crash victims under the circum-
`stances, id. at 71a-82a, and because the controller’s ac-
`tions were not a proximate cause of the accident, id. at
`83a.
`3. The court of appeals reversed and remanded.
`Pet. App. 1a-48a.
`a. The court of appeals first held that the district
`court erred in holding that respondents’ claims were
`preempted by the federal interests embodied in the
`FTCA’s combatant activities exception, 28 U.S.C.
`2680( j). Pet. App. 19a-37a. The court noted that the
`FTCA excludes government contractors from the stat-
`ute’s definition of “federal agenc[y].” Id. at 20a (quoting
`28 U.S.C. 2671) (brackets omitted). The court recog-
`nized, however, that several courts of appeals, applying
`this Court’s reasoning in Boyle v. United Technologies
`Corp., 487 U.S. 500 (1988), have 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. Pet.
`App. 22a-26a.
`The court of appeals agreed with the unanimous view
`of its sister circuits that the federal interests reflected
`in the combatant activities exception displace state-law
`claims against military contractors in at least some cir-
`cumstances. Pet. App. 31a-35a. The court explained
`that the purpose of the exception is to “foreclose state
`regulation of the military’s battlefield conduct and deci-
`sions.” Id. at 32a (quoting Harris v. Kellogg Brown &
`Root Servs., Inc., 724 F.3d 458, 480 (3d Cir. 2013), cert.
`denied, 574 U.S. 1120 (2015)). In the court’s view, a
`
`
`
`

`

`6
`
`state-law claim against a contractor would be
`preempted where “the challenged action can reasonably
`be considered the military’s own conduct or decision
`and the operation of state law would conflict with that
`decision.” Id. at 33a.
`The court of appeals then articulated a two-part
`framework for determining when a state-law claim will
`be preempted. Pet. App. 33a. Under the court’s frame-
`work, a claim will be preempted where “(1) the claim
`arises out of the contractor’s involvement in the mili-
`tary’s combatant activities, and (2) the military specifi-
`cally authorized or directed the action giving rise to the
`claim.” Ibid. Applying that test, the court concluded
`that respondents’ negligence claims were not pre-
`empted. Id. at 35a. The court did not address, under
`the first step of the framework it adopted, whether re-
`spondents’ claims arose out of petitioner’s involvement
`in the military’s combatant activities. Instead, advanc-
`ing directly to the second step of that framework, the
`court held that the claims were not preempted because
`“[t]he record on summary judgment does not establish
`as a matter of law in [petitioner’s] favor that the mili-
`tary authorized or directed [the controller’s] action.”
`Ibid.; see id. at 36a (noting that the military “did not
`issue a specific instruction that compelled [the control-
`ler’s] directions to Flight 662”). The court observed
`that the military had “at a very general level” author-
`ized petitioner to conduct air traffic control on the mili-
`tary’s behalf in accordance with international air traffic
`control standards. Id. at 36a. But it held that preemp-
`tion arises only when the military “specifically author-
`izes or directs the contractor action,” not when the mil-
`itary “generally permits the contractor to undertake a
`range of actions.” Ibid.
`
`
`
`

`

`7
`
`b. The court of appeals also reversed the district
`court’s rulings on the issues of duty and proximate
`cause. Pet. App. 38a-48a. Noting that “[t]he parties and
`the District Court proceeded as if New York law ap-
`plies,” the court held that, under New York law, air traf-
`fic controllers owe a “circumscribed” duty of care to pi-
`lots operating under visual flight rules that requires the
`controller “not to lead a VFR flight into a danger that
`the controller is or should be aware of.” Id. at 38a-39a,
`42a. The court remanded for factfinding on the question
`whether petitioner’s controller breached that duty on
`the night of the crash. Id. at 46a. The court similarly
`concluded that the question whether the controller’s ac-
`tions were a proximate cause of the accident involved
`“question[s] of fact” and could not be decided as a mat-
`ter of law in this case. Id. at 46a; see id. at 47a.
`
`DISCUSSION
`Petitioner asks this Court to grant review to address
`whether state-law tort claims against a government
`contractor “that arise out of the uniquely federal sphere
`of the military’s combat operations are preempted by
`the interests embodied in the Federal Tort Claims Act’s
`combatant-activities exception.” Pet. I. But as ex-
`plained below, respondents’ claims do not arise out of
`the military’s combatant activities; rather, they arise
`out of air traffic control operations at a civilian airport
`in an incident involving civilian air traffic. The court of
`appeals thus did not err in vacating the district court’s
`judgment concluding that respondents’ claims are
`preempted by the federal interests embodied in the
`FTCA’s combatant activities exception. Because re-
`spondents’ claims do not arise out of the military’s com-
`batant activities, this case does not squarely present the
`question raised by petitioner. And even if it did, the
`
`
`
`

`

`8
`
`extent of any meaningful conflict among the courts of
`appeals on that question is uncertain, and this case
`arises in an interlocutory posture. Further review is
`not warranted.
`A. The Federal Interests Embodied In The FTCA’s
`Combatant Activities Exception Do Not Preempt
`Respondents’ State-Law Claims
` The FTCA’s combatant activities exception bars any
`claim against the United States “arising out of the com-
`batant activities of the military or naval forces, or the
`Coast Guard, during time of war.” 28 U.S.C. 2680( j). A
`claim against a government contractor cannot be
`preempted by the federal interests embodied in that ex-
`ception unless the claim, at a minimum, is one “arising
`out of the combatant activities of the military.” Ibid.
`Respondents’ claims do not satisfy that threshold ele-
`ment on the record here.
`1. This Court has recognized that federal law must
`govern certain questions involving “uniquely federal in-
`terests,” Banco Nacional de Cuba v. Sabbatino, 376
`U.S. 398, 426 (1964), such as where “the authority and
`duties of the United States as sovereign are intimately
`involved” or where “the interstate or international na-
`ture of the controversy makes it inappropriate for state
`law to control,” Texas Indus., Inc. v. Radcliff Materi-
`als, Inc., 451 U.S. 630, 641 (1981). The resolution of
`such questions is “so committed by the Constitution and
`laws of the United States to federal control that state
`law is pre-empted.” Boyle v. United Techs. Corp., 487
`U.S. 500, 504 (1988).
`This Court applied those principles in Boyle to hold
`that in certain circumstances state-law claims against a
`federal procurement contractor are preempted. 487
`U.S. at 512. Boyle held that “ ‘displacement of state
`
`
`
`

`

`9
`
`law’ ” is appropriate in cases implicating uniquely fed-
`eral interests if “a significant conflict exists between an
`identifiable federal policy or interest and the [opera-
`tion] of state law,” or if “the application of state law
`would frustrate specific objectives of federal legisla-
`tion.” Id. at 507 (citations and internal quotation marks
`omitted; brackets in original). The Court further rec-
`ognized that “[t]he conflict with federal policy need not
`be as sharp as that which must exist for ordinary
`preemption” because areas of uniquely federal interest
`are not “ ‘field[s] which the States have traditionally oc-
`cupied.’ ” Ibid. (citation omitted).
`Applying those principles, the Court in Boyle con-
`cluded that application of state tort law to particular de-
`sign specifications for military equipment approved by
`the government would conflict with the federal policy
`embodied in the discretionary function exception in the
`FTCA, which exempts from the FTCA’s waiver of sov-
`ereign immunity “[a]ny claim * * * based upon the ex-
`ercise or performance * * * [of] a discretionary func-
`tion,” 28 U.S.C. 2680(a). The “selection of the appropri-
`ate design for military equipment,” the Court ex-
`plained, “is assuredly a discretionary function within
`the meaning of this provision” because it involves “judg-
`ment as to the balancing of many technical, military,
`and even social considerations.” Boyle, 487 U.S. at 511.
`Although the FTCA and its exceptions do not apply to
`suits against contractors, 28 U.S.C. 2671, the Court con-
`cluded that it would “make[] little sense to insulate the
`Government against financial liability for the judgment
`that a particular feature of military equipment is neces-
`sary when the Government produces the equipment it-
`self, but not when it contracts for the production.”
`
`
`
`

`

`10
`
`Boyle, 487 U.S. at 512.2 Such liability “would produce
`the same effect sought to be avoided by the FTCA ex-
`emption,” in that the “financial burden of judgments
`against the contractors would be passed through, sub-
`stantially if not totally, to the United States itself.” Id.
`at 511-512. And it would “directly affect the terms of
`Government contracts: either the contractor will de-
`cline to manufacture the design specified by the Gov-
`ernment, or it will raise its price.” Id. at 507. “Either
`way, the interests of the United States will be directly
`affected.” Ibid.3
`
`
`2 Boyle also requires, as a prerequisite to preemption, that the
`contractor warned the government of dangers in the use of the
`equipment that was produced according to the specifications ap-
`proved by the government. 487 U.S. at 512.
`3 Even without reliance on the FTCA’s discretionary function ex-
`ception, unlimited application of state-law tort liability to particular
`design features of military equipment would be out of place in light
`of the unique federal interests and powers implicated by such
`claims. See Bradford R. Clark, Boyle As Constitutional Preemp-
`tion, 92 Notre Dame L. Rev. 2129, 2130, 2134-2141 (2017) (advocat-
`ing an alternative rationale for the decision in Boyle grounded in
`constitutional preemption). The “Constitution’s text, across several
`Articles, strongly suggests a complete delegation of authority to the
`Federal Government to provide for the common defense.” Torres v.
`Texas Dep’t of Pub. Safety, 142 S. Ct. 2455, 2463 (2022); Perpich v.
`Department of Defense, 496 U.S. 334, 351 (1990) (recognizing “the
`supremacy of federal power in the area of military affairs”). The
`Constitution, for example, expressly grants Congress the powers to
`“raise and support Armies” and to “provide and maintain a Navy.”
`U.S. Const. Art. I, § 8, Cls. 12-13. At the same time, it “divests the
`States of like power.” Torres, 142 S. Ct. at 2463 (citing U.S. Const.
`Art. I, § 10); see also U.S. Const. Art. VI, Cl. 2 (Supremacy Clause).
`Unrestrained application of state tort law to the performance of spe-
`cialized military equipment procurement contracts would thus nec-
`essarily intrude on a field “committed by the Constitution” to “fed-
`eral control.” Boyle, 487 U.S. at 504.
`
`
`

`

`11
`
`2. All five courts of appeals to consider the issue—
`including the Second Circuit in the decision below—
`have concluded that this Court’s reasoning in Boyle also
`applies to the FTCA’s combatant activities exception in
`certain circumstances. See Pet. App. 31a-35a; In re
`KBR, Inc., Burn Pit Litig., 744 F.3d 326, 347-351 (4th
`Cir. 2014), cert. denied, 574 U.S. 1120 (2015); Harris v.
`Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 480
`(3d Cir. 2013), cert. denied, 574 U.S. 1120 (2015); Saleh
`v. Titan Corp., 580 F.3d 1, 5-7 (D.C. Cir. 2009), cert. de-
`nied, 564 U.S. 1037 (2011); Koohi v. United States, 976
`F.2d 1328, 1336-1337 (9th Cir. 1992), cert. denied, 508
`U.S. 960 (1993). These courts have reasoned that such
`suits likewise implicate an area of uniquely federal
`interests—the U.S. military’s conduct of combat opera-
`tions abroad—and that such interests would be frus-
`trated if state-law tort liability applied without limita-
`tion to military contractors operating in a war zone.
`Although these courts have not all adopted the same
`formulation in defining the scope of preemption in this
`context, see pp. 17-19, infra, all agree—and petitioner
`does not dispute, see Reply Br. 6—that the scope of the
`FTCA’s combatant activities exception necessarily in-
`forms that analysis. At a minimum, that means a claim
`against a contractor cannot be preempted by the federal
`interests embodied in the FTCA’s combatant activities
`exception where the claim does not “arise out of” the
`military’s combatant activities. See 28 U.S.C. 2680(j);
`Pet. App. 33a (“[W]e conclude that the combatant activ-
`ities exception does not displace state-law claims
`against contractors unless * * * the claim arises out of
`the contractor’s involvement in the military’s combat-
`ant activities.”); Saleh, 580 F.3d at 9 (“During wartime,
`where a private service contractor is integrated into
`
`
`
`

`

`12
`
`combatant activities over which the military retains
`command authority, a tort claim arising out of the con-
`tractor’s engagement
`in such activities shall be
`preempted.”) (emphasis added); Harris, 724 F.3d at 481
`(adopting the Saleh test and determining that a claim
`alleging negligent maintenance of water pump systems
`at a military base in a war zone “arises from combatant
`activities of the military”); In re KBR, 744 F.3d at 351
`(likewise adopting Saleh test); see also Koohi, 976 F.2d
`at 1337 (holding that preemption was appropriate
`where imposition of liability on a contractor “would cre-
`ate a duty of care where the [FTCA’s] combatant activ-
`ities exception is intended to ensure that none exists”).
`The FTCA’s combatant activities exception “paint[s]
`with a far broader brush” than certain other FTCA ex-
`ceptions. Dolan v. United States Postal Serv., 546 U.S.
`481, 489 (2006); see id. at 489-490 (contrasting the com-
`batant activities exception in Section 2680(j) with Sec-
`tion 2680(b), which preserves immunity for “just three
`types of harm” associated with mail delivery). The
`phrase “ ‘arising out of,’ ” used in the combatant activi-
`ties exception,
`is well understood to be “among
`the broadest in law.” Al Shimari v. CACI Int’l, Inc.,
`679 F.3d 205, 236 (4th Cir. 2012) (en banc) (Wilkinson,
`J., dissenting)
`(citation omitted); see, e.g., United
`States v. Shearer, 473 U.S. 52, 54-55 (1985) (plurality
`opinion) (broadly interpreting the “sweeping language”
`of the FTCA exception encompassing “[a]ny claim aris-
`ing out of [an] assault [or] battery,” 26 U.S.C. 2680(h),
`to include a claim that officials negligently failed to pre-
`vent an assault); Harris, 724 F.3d at 480 (“[T]he phrase
`‘arising out of’ suggests that this immunity is quite
`broad.”). And several courts of appeals have recognized
`that the phrase “combatant activities” is likewise “of
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`somewhat wider scope”; it includes “not only physical
`violence, but activities both necessary to and in direct
`connection with actual hostilities,” such as “supplying
`ammunition to fighting vessels in a combat area during
`war.” Johnson v. United States, 170 F.2d 767, 770 (9th
`Cir. 1948); accord Harris, 724 F.3d at 481; In re KBR,
`744 F.3d at 351. Thus, as the Fourth Circuit has ex-
`plained, a claim arising out of a contractor’s “[p]er-
`form[ance of] waste management and water treatment
`functions to aid military personnel in a combat area”
`“undoubtedly” qualifies. In re KBR, 744 F.3d at 351.
`Given the broad text of Section 2680(j), air traffic
`control services would likewise implicate the combatant
`activities exception in many circumstances. Respond-
`ents argue, however, that the air traffic control opera-
`tions at issue here do not implicate the exception at all.
`See Br. in Opp. 8-15. In the particular circumstances of
`this case, the United States agrees that the interests re-
`flected in the combatant activities exception are not suf-
`ficiently implicated to trigger any potential preemption
`of claims against petitioner.
`KAIA was designated as a civilian airport that be-
`longed to Afghanistan. Pet. App. 3a. Significantly, the
`record reflects that the reason for military supervision
`of KAIA’s air traffic control tower was primarily to
`“train[] Afghan civilians as tower controllers.” Ibid.;
`see also id. at 53a. Petitioner notes (Pet. 5) that the U.S.
`government deemed petitioner’s personnel to be “mis-
`sion essential” under Department of Defense regula-
`tions and the terms of the prime contract. But as just
`explained, military personnel supervised the KAIA
`tower largely for the purpose of training Afghan civil-
`ians to serve as tower controllers, not to perform a com-
`bat-related function as such. Petitioner’s employees
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`thus supported military personnel in performing that
`undoubtedly essential, but not closely combat-related,
`function.
`The record indicates that the traffic handled by air
`traffic controllers at KAIA did include a substantial
`amount of traffic related to U.S. military operations.
`See, e.g., C.A. App. 558 (air traffic at KAIA included
`“military forces” engaged in “active combat operations”
`as well as aircraft carrying troops and military sup-
`plies); see also id. at 487 (KAIA air traffic included air-
`craft “involved in actual combat duties”). But the rec-
`ord also indicates that controllers served a “dual” role
`that involved directing civilian air traffic unrelated to
`combat operations as well. Id. at 558. And nothing in
`the record suggests that the controllers’ duties and ob-
`ligations were affected by the character of the air traffic
`at KAIA at particular times. To the contrary, peti-
`tioner’s controllers appear to have been subject to the
`same rules, regulations, and operating procedures re-
`gardless of whether a particular incoming or departing
`plane was military or civilian. See pp. 2-3, supra; Pet.
`App. 5a.
`Moreover, on the night in question, both the cargo
`plane that crashed, Flight 662, and the passenger plane
`whose unanticipated arrival precipitated the crash were
`civilian planes and flights. Pet. App. 6a, 11a-12a. In-
`deed, petitioner has not pointed to evidence that there
`were any military flights arriving at or departing from
`KAIA that night. Although the cargo plane’s role was
`presumably to furnish transportation in support of mil-
`itary operations, the record is likewise silent as to what
`materials (if any) Flight 662 had delivered to Bagram
`Air Base earlier in the day and what role (if any) those
`materials may have played in military operations. And
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`15
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`on the fatal Bagram-to-KAIA leg, Flight 662 was re-
`turning to its home base in Kabul, manned by a civilian
`crew and apparently empty of all cargo and supplies.
`Id. at 6a.
`Petitioner emphasizes (Reply Br. 6-7) that KAIA
`was at times subject to attacks by insurgents. But there
`is no indication in the record that KAIA was under at-
`tack or threat of attack the night of the crash. Nor has
`petitioner pointed to any evidence that, on the night of
`the crash (or at any point in the days immediately be-
`fore or after), flight operations at KAIA were anything
`other than routine, or that the actions of the allegedly
`negligent controller were governed by anything other
`than standard FAA and international operating proce-
`dures at Afghanistan’s primary civilian airport.
`For these reasons, in the particular circumstances of
`this case as it comes to the Court, respondents’ claims
`do not sufficiently implicate the interests embodied in
`the FTCA’s combatant activities exception to trigger
`any potential preemption of those claims against the
`military contractor responsible for directing air traffic
`at KAIA. The result could be different if the relevant
`circumstances were different, such as in the case of a
`claim against a contractor directing air traffic at a mili-
`tary base or utilizing special standards to safeguard
`military traffic. And the result could also be different
`in a case against the United States under the FTCA
`where U.S. military personnel were themselves per-
`forming air traffic control services based on a judgment
`of combat-related necessity (e.g., at U.S. airports dur-
`ing or in the wake of attacks such as those on September
`11, 2001).4
`
`
`4 The FTCA bars claims arising in a foreign country, 28 U.S.C.
`2680(k), and therefore would bar claims against the United States
`
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`B. Further Review Is Not Warranted At This Time
`This case does not warrant the Court’s review. For
`the fact-specific reasons explained above, the court of
`appeals reached the correct result. And because re-
`spondents’ claims do not arise out of the military’s com-
`batant activities in the first instance, this case would be
`an unsuitable vehicle in which to address the question
`presented. Moreover, the extent to which there is any
`conflict among the circuits on the question presented is
`uncertain. This case is also in an i