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Civilian stripped of air control credential can sue Utah Air National Guard officers

Published April 24, 2012 6:43 pm

This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Military immunity does not block a civilian supervisor from suing officers who withdrew his air traffic control certificate after a series of incidents at Hill Air Force Base, a federal appeals court ruled Tuesday.

Robert Newton was implicated in five air traffic control incidents between January 2002 and November 2003, according to the Utah Air National Guard officers he sued. Three cases involved planes flying too closely together. In the others, a plane dropped ordnance in a closed target area and a plane entered the airspace without properly coordinating with air traffic control.

Newton was not considered responsible for each of the incidents, but investigators questioned his supervision of the controllers, the 10th Circuit Court of Appeals ruling said. His certificate was eventually withdrawn and he was suspended indefinitely.

He sued the Guard and several officers in 2007, but some claims and defendants have since been dismissed.

The new ruling deals only with Newton's due process claims against Lt. Col. Wayne E. Lee and Major John R. Teter over the loss of his certificate. Lee and Teter unsuccessfully argued they were immune under a doctrine that prevents service members from suing over injuries related to their service.

Newton served in the Guard between 1985 and 2002, but his job as an air traffic control supervisor was a "purely civilian" post that did not require military experience, the appeals judges said.

Lee and Teter also argued Newton's claims should be blocked by qualified immunity, which often bars claims against government officials accused of violating constitutional rights. But a decision on that defense can't be made until disputes about facts in the case are resolved at trial, the Denver court said.

The court did not review U.S. District Judge Clark Waddoups' decision to grant Lee and Teter immunity to Newton's claims over his job loss.