The Space Shuttle Columbia and the Legal High Frontier: Possible Claims and Defenses

IISL-03-IISL.1.07

THE SPACE SHUTTLE COLUMBIA AND THE LEGAL HIGH FRONTIER: POSSIBLE CLAIMS AND DEFENSES

Charles R. Lucy, Esq., Law Offices of Holland & Hart, LLP Colorado Springs, Colorado, U.S.A. (mailto:[email protected])

Skip Smith, Esq.* Law Offices of Sherman & Howard, LLP Colorado Springs, Colorado, U.S.A. (mailto:[email protected])

ABSTRACT INTRODUCTION

When a major aerospace accident The recent release of the Columbia occurs, attention immediately focuses Accident Investigation Board (CAIB) on causation to determine safety of report on August 26, 2003,1 culminates flight issues. A secondary, but equally a painful but necessary step in the return important, determination focuses on the of NASA to manned space flight. question of liability. Such was the case Director O’Keefe has vowed to move in the wake of the space shuttle forward by adopting the report as a Columbia accident on February 1, 2003. blueprint for the safe and successful The recently published Columbia resumption of space shuttle operations.2 Accident Investigation Report provides However, while NASA looks forward, a roadmap for the safe return to flight of there are many problems from the past the space shuttle program, but also that remain unresolved, including the raises interesting liability questions. thorny issues surrounding a regrettable, This paper attempts to address those but preventable disaster. These issues issues as they relate to international law are further complicated because they and the domestic law of the United involve overlapping considerations of States. Those laws raise difficult international law under the Liability barriers to would-be claimants and pose Convention, the substantive laws of the serious questions for the assessment of United States, including the Federal liability in future cases. Tort Claims Act (FTCA) and the Federal Employees Compensation Act (FECA), and the myriad tort laws of up to 50 *Member, IISL local state jurisdictions. This article Copyright © by the authors. Published will examine these legal cross currents by American Institute of Aeronautics and outline the legal hierarchy that may and Astronautics, Inc. with permission. ultimately lead to their resolution.

1 THE COLUMBIA ACCIDENT by the time of STS 107, it was regarded INVESTIGATION BOARD REPORT as a turnaround, or maintenance event, rather than a safety of flight issue.8 As might be expected, the CAIB report contains an exhaustive analysis of the Various theories were advanced for this physical and organizational causes of problem, from cryopumping9 to the Columbia crash. It describes in cryoingestion10 to subsurface defects11 almost prosaic terms the anatomy of a but no serious actions were taken to disaster: correct the problem. Only belatedly did NASA contractors attempt a limited The physical cause of the loss of effort to harden the Thermal Protection Columbia and its crew was a breach in System to withstand greater impacts,12 a the Thermal Protection System on the solution designed to treat the symptom leading edge of the left wing. The and not the disease. breach was initiated by a piece of insulating foam that separated from the The block of foam that separated from left bipod ramp of the External Tank Columbia’s external fuel tank on and struck the wing in the vicinity of the January 16, 2003 was 21 to 27 inches lower half of Reinforced Carbon- long, 12 to 18 inches wide and weighed Carbon panel 8 at 81.9 seconds after approximately 1.67 pounds.13 It struck launch. During re-entry, this breach in Columbia’s left wing in a tumbling the Thermal Protection System allowed motion at a relative speed of 400 to 600 superheated air to penetrate the miles per hour,14 causing the damage leading-edge insulation and that would lead to calamity on February progressively melt the aluminum 1, 2003. Unfortunately, the CAIB structure of the left wing, resulting in a report was unable to isolate a single weakening of the structure until causative factor for this event: increasing aerodynamic forces caused loss of control, failure of the wing, and Analysis of numerous separate variables breakup of the Orbiter.3 indicated that none could be identified as the sole initiating factor of bipod The problem of foam separation was foam loss. The Board therefore well known to NASA officials prior to concludes that a combination of several STS 107.4 According to the CAIB factors resulted in bipod foam loss.15 report, foam loss occurred on more than 80% of the shuttle missions for which Specifically, the CAIB found: imagery was available to make such a determination.5 In addition, foam loss Negligence on the part of NASA, similar to that which was observed Lockheed Martin, or United Space during Columbia’s last launch occurred Alliance workers does not appear to in almost 10% of the observable cases.6 have been a factor.16 These losses were tolerated by NASA despite design specifications precluding In the Board’s view, NASA’s the shedding of debris during launch and organizational culture and structure had pre-launch operations.7 This as much to do with this accident as the phenomenon occurred so frequently that External Tank foam.17 That culture led

2 to overconfidence on the part of NASA …international rules and procedures officials that resulted in an acceptance concerning liability for damage caused of risk as a cost of doing business by space objects and to ensure, in without any meaningful analysis of the particular, the prompt payment under cumulative impact of those risks.18 the terms of [the] Convention of a full More tragically, that culture resulted in and equitable measure of compensation a failure to assess the extent of damage to victims of such damage…24 to the shuttle before its fateful re- entry.19 In fact, the CAIB report Article I of the Convention provides a documents no fewer than eight missed broad definition of damage to include opportunities to do so.20 loss of life, personal injury and property damage, and goes on to define a space In the final analysis, and despite the object to include its component parts as Board’s assertion that no one factor well as the launch vehicle and the parts caused the debris impact problem, there thereof25. Article II then states the well- is plenty of blame to go around for known principle of the Convention that: Columbia’s catastrophic failure. One member of the CAIB, Brigadier General A launching state shall be absolutely Duane Deal, felt so strongly about the liable to pay compensation for damage safety issues uncovered during the caused by its space object on the Board’s investigation that he issued his surface of the earth or to aircraft own “minority report”21 which is certain flight.26 to fuel additional controversy and potential litigation. Even the CAIB Article III of the Convention then goes report itself hints at a certain tension on to discuss liability for space bubbling just below the surface of the collisions, placing liability upon a investigation when it refers to launching state only if its object strikes speculation by NASA scientists that another space object due to its fault.27 foam installation defects attributable to private industry caused the foam The Convention carves out a large separation which led to Columbia’s exception concerning liability in Article end.22 It is against this ominous VII, exempting damage caused by space background that an analysis of legal objects of a launching state to its own liability must take place. nationals or to foreign nationals participating in the operation of the THE INTERNATIONAL space object.28 This provision FRAMEWORK effectively bars recovery under the Convention by any of the seven The obvious starting point for any astronauts aboard Columbia, including analysis of legal liability for the Israeli Colonel Ilan Ramon. Also Columbia disaster is the Convention on exempted would be anyone on the International Liability for Damage ground in the Columbia flight path over Caused by Space Objects.23 That Texas and Louisiana who came in document was negotiated for the contact with shuttle debris or purpose of creating: experienced damage as a result of falling components. Thus, it appears

3 that the only persons who would be able soldier contemplating litigation, and the to file a claim under the Liability safety net of compensation and benefits Convention would be non-U.S. citizens available to members of the armed on the ground. While they still have forces through such agencies as the time to file a claim under the Department of Veteran’s Affairs.34 Convention within its one-year statute Essentially, the same rule applies to of limitations,29 the probabilities are federal civilian employees under FECA, remote that anyone will actually avail which is their exclusive remedy for themselves of this international remedy. personal injury and death claims.35 In a subsequent decision, the Supreme Court REMEDIES UNDER U. S. LAW barred a government contractor sued by a service member from cross-claiming If the international framework for against the government for recovery by U. S. plaintiffs is bleak, the indemnification, Stencel Aero picture under U. S. domestic law is not Engineering Corp v. United States.36 much better, at least with respect to This latter case effectively sealed the Columbia’s crew and their families. last chink in the armor of federal Although the Congress has established sovereign immunity against any and all an elaborate compensation scheme for liability claims arising from the injury federal employees injured in the line of or death of federal employees caused by duty, including military personnel, that the negligent acts of their employer. largesse comes with a price. That price tag is a virtual immunity from liability The effect of the preceding discussion is for the negligent acts of the federal that the heirs of USAF Colonel Rick government. Thus while the Federal Husband, Navy Commander William Tort Claims Act,30 provides for a limited McCool, USAF Lieutenant Colonel waiver of federal sovereign immunity, Michael Anderson and Navy Captains that waiver does not apply to federal Laurel Clark and David Brown would be employees in general under the Federal barred from suing the federal Employees Compensation Act,31 or to government under the Feres doctrine, military personnel in particular under and NASA employee Kalpana Chawla the Supreme Court doctrine enunciated would be barred by FECA. Ironically, in Feres v. United States.32 In Feres, the the only shuttle passenger who might Supreme Court held that a member of not be barred under the FTCA would be the armed forces could not sue the Israeli Colonel Ilan Ramon. However, federal government for personal as discussed below, he would face the injuries, death, or property loss same hurdles confronting non-federal sustained “incident to service”.33 The employees who may have suffered latter term equates roughly to being in debris-related damage/injuries on the the line of duty, although a soldier need ground. Another possible complication not be “on duty” for Feres to apply. The in this case would be the existence of a Court pointed to a number of reasons for Status of Forces Agreement between the this rule, including the peculiar and United States and Israel, which could special relationship between the preclude recovery by his surviving Government and members of its armed family members. forces, the disadvantages faced by a

4 As mentioned above, the FTCA would there is one other avenue of recovery apply to those injured by falling/fallen that may not require a prospective debris, including those participating in plaintiff to rebut a discretionary the recovery effort, assuming they are function claim by the government if not employed by the federal negligence of a government contractor government.37 For these plaintiffs (and can be demonstrated. Even this avenue Colonel Ramon), the FTCA opens the of recovery has become difficult to door to possible liability claims, pursue due in part to the same assuming that an administrative claim discretionary function exception has first been filed within two years38 discussed above. and that any number of exceptions do not apply. Chief among these is the THE CIVILIAN CONTRACTOR discretionary function exception, which DEFENSE provides that the FTCA’s waiver of sovereign immunity does not apply to: For many years, federal employee plaintiffs were able to obtain some relief Any claim…based upon the exercise from the limitations of the FTCA and or performance or the failure to FECA by suing civilian contractors who exercise or perform a discretionary created the dangerous condition or function or duty on the part of a federal instrumentality that led to their death or agency or an employee of the injury. However, that avenue of Government, whether or not the recovery was narrowed substantially in discretion involved be abused.39 Boyle v. United Technologies Corp.42 In that case, the Supreme Court found a This discretionary function exception to limited immunity for government the waiver of sovereign immunity under contractors under the discretionary the FTCA requires planning, rather than function exception of the FTCA: operational level activity,40 and a demonstration by the federal Liability for design defects in military government that (1) the function equipment cannot be imposed, pursuant involved an element of choice and was to state law, when (1) the United States not mandated by regulation, statute or approved reasonably precise policy requiring a particular course of specifications; (2) the equipment action and (2) the discretionary nature conformed to those specifications; and of the function is of a kind that the (3) the supplier warned the United exception was designed to shield.41 States about the dangers in the use of Needless to say, the discretionary the equipment that were known to the function exception to the FTCA can supplier but not to the United States.43 (and does) provide an exceptionally large loophole through which the federal The Boyle Court explained its reasoning government can escape liability under in the following terms: the Act. In addition, it is hard to imagine a more discretionary ...It makes little sense to insulate the governmental function than space flight Government against financial liability or the operation of a spacecraft such as [under the FTCA] for the judgment that the space shuttle. Notwithstanding, a particular feature of military

5 equipment is necessary when the Obviously, such a determination could Government produces the equipment be significant, since NASA is a non- itself, but not when it contracts for the DOD, civilian agency of the federal production.44 government.52 While noting that the federal circuits are split on the issue, The presence of a significant federal several commentators have argued interest in the program that initiated the persuasively that the defense should not contracting activity has been suggested be extended beyond noncommercial as a fourth element of Boyle.45 While military products.53 They point to the this fourth “requirement” should be Boyle Court’s reference to “military more properly understood in the context equipment” in its holding and note the of whether federal law should pre-empt majority’s concern that state tort law state law in a particular procurement will be used to “second guess” military context,46 it was clear that the Boyle decisions and that defense contractors Court was concerned about the impact will raise their prices to the government of state tort lawsuits on the national in order to cover their increased defense. liability.54 The Court may have also signaled a reluctance to extend Boyle in In arriving at its decision, the Court its decision in Hercules, Inc. v. United implicitly recognized that the States.55 In that case, certain government contractor defense would contractors involved in making Agent not apply to commercial, off the shelf, Orange for the Department of Defense items for which there was no sought to apply the government government input.47 The active contractor defense through an implied participation of a contractor in the indemnification theory.56 However, the design process, however, would not Court refused to extend the defense that preclude assertion of the defense, far and, as in Stencel Aero, preserved especially where the design selection the immunity of the United States from reflected a “significant policy collateral attack by civilian contractors judgment” by the government.48 In the found to be liable to civilian plaintiffs.57 view of at least one commentator, this could apply to every situation in which In addition to the non-DOD argument design specifications are incorporated discussed above, various theories have into a government contract.49 That same been suggested to circumvent the commentator observed that the defense holding in Boyle. The most obvious would apply to any person injured by a involve a frontal assault on the three defective product purchased by the pronged test enunciated in Boyle.58 government, and that it would not be Frankly, these may be the most limited strictly to defense related productive avenues of attack for a products.50 prospective plaintiff, especially where the government specification is not In the years since Boyle was decided, precise or the contractor deviates from however, the question as to whether the that specification in a way that is not government contractor defense applies approved by the government. However, to non-defense, as well as defense, if the government accepts a known contractors remains unresolved.51 deviation, the contractor may again

6 escape liability.59 This may be of great THE FUTURE significance in the Columbia disaster where NASA accepted a known problem While the CAIB report provides a with foam separation without seeking comprehensive roadmap for the meaningful corrections from the recovery of the space shuttle program, it manufacturer. In addition, as the also opens some interesting possibilities federal procurement system leans more for recoveries of another kind. These and more toward the purchase of include monetary awards from personal commercial, off the shelf items, the injury lawsuits based upon negligent defense could lose some of its vitality. space shuttle design issues, the Still, it is hard to procure tanks, aircraft negligent manufacture of shuttle and submarines, including their components, and failure to comply with components, off the shelf. Thus, Boyle government-furnished specifications. will probably retain its potency with respect to many government As discussed above, there are many procurement actions. hurdles that must be overcome before a successful lawsuit can be maintained, Some commentators have suggested assuming that any of these asserting liability under state tort law circumstances can be proven. In the requirements that impose a duty to warn final analysis, however, all parties potential users of hazardous products.60 recognize that space flight is an However, one wonders how such inherently dangerous activity. In this warnings would be of any utility when regard, Congress has seen fit to provide combined with the inherently dangerous for the indemnification of users of space instrumentalities of war or space flight. vehicles, including the space shuttle, for At least one court has noted that a death, bodily injury or property military member injured in a weapon loss/damage to the extent that such system failure could hardly have refused claims are not compensated by the to use the system based upon some liability insurance of the user.65 In fact, hypothetical safety warning on the United Space Alliance, which is a joint device.61 Other courts, however, have venture formed by Lockheed and Boeing allowed plaintiffs to prove their case.62 to conduct space shuttle maintenance and launch operations, has such an Commentators have also suggested indemnity agreement in place.66 It asserting claims based on a failure by should also be noted that the families of the manufacturer to incorporate obvious the victims themselves may be reluctant safety features into a design.63 The to sue out of a sense of loyalty and trade-offs implicit in the production of respect.67 And Congress may step in any complex piece of equipment such as directly, having set a compensation the space shuttle, however, involve precedent in the wake of the September precisely the kinds of discretionary 11, 2001 terrorist attack on the World decisions that the FTCA and Boyle were Trade Center towers. Whatever the designed to protect. In fact, the Boyle source, there will be compensation for Court itself recognized “…the trade-off the families of the brave crew of between greater safety and greater Columbia, not necessarily because it’s combat effectiveness.”64 legal, but because it’s the right thing to

7 do. However, the most meaningful way to “compensate” the Columbia crew and 22 CAIB Report at 52. Similar concerns were their families will be NASA’s safe and expressed at the factory that built the fuel tanks in question, Garcia, Kidwell and responsible return to manned space Greene, Michoud Space Center to Come flight in the near future. Under Scrutiny in Shuttle Probe, The Miami Herald, February 16, 2003. 3130397_1.DOC 23 U.N. Convention on International Liability for Damage Caused by Space Objects, March Notes 29, 1972, 961 U.N.T.S. 187 (entered into

1 force September 1, 1972) [hereinafter cited as Columbia Accident Investigation Board Liability Convention]. Report, Volume 1, August 2003 [hereinafter 24 Liability Convention, Preamble. cited as CAIB Report]. 25 2 Id. at Article I. Aviation Week and Space Technology, Vol. 26 Id. at Article II. 159, No. 9, September 1, 2003, p. 22. 27 3 Id. at Article III. CAIB Report, supra, at 49. 28 4 Id. at Article VII. Id. at 121. STS 107 is the mission 29 th Id. at Article X. designation for Columbia’s 28 , and final, 30 28 U.S.C. §§ 1291, 1346(b) and (c), 1402(b), flight. 5 2401(b), 2402, and 2671-80. Id. at 53. 31 6 5 U.S.C. §§ 8101-8193. Id. 32 7 340 U.S. 135 (1950). Id. at 122. 33 8 Id. at 146. Id. at 130. 34 9 Id. at 143, 145. Id. at 53. “Cryopumping” involves the 35 5 U.S.C. 8116. The same rule applies for freezing/liquification of air that seeps non-appropriated fund employees under the beneath the foam and is trapped in voids at or Longshore and Harbor Workers’ near the surface of the liquid oxygen and Compensation Act, 5 U.S.C. § 8173; 33 liquid hydrogen tanks. After launch, as U.S.C. §§ 910-50. propellant levels decrease and aerodynamic 36 431 U.S. 666 (1977). heating occurs, the trapped air can boil away 37 An interesting problem is presented by the or evaporate, building up pressure beneath various volunteers who participated in the the foam. This rapid increase in subsurface search and recovery effort in that their pressure could cause the foam to break away volunteer status may or may not confer rights from the External Tank. 10 (and bar recovery) under FECA. The receipt Id. “Cryoingestion” involves the same fluid of these so-called “gratuitous” services by the mechanics as “cryopumping” except that the federal government must generally be fluid involved is gaseous nitrogen which may approved in advance and include a waiver of seep from the intertank, which is filled with any right to compensation. The ban on the nitrogen during tanking operations. receipt of volunteer services has numerous 11 Id. at 52-53. 12 exceptions, including emergency situations Id. at 130. The material used to improve involving the safety of human life or the impact resistance of space shuttle tiles suffers protection of property, 31 U.S.C. § 1342. from a higher thermal conductivity than 38 28 U.S.C. §§ 2675 and 2401(b). normal tiles and is therefore of limited 39 28 U.S.C. § 2680(a). utility. 40 13 Dalehite v. United States, 346 U.S. 15, 42 Id. at 59; Aviation Week and Space (1953). Technology, supra, at 23. 41 Black Hills Aviation, Inc. v. United States, 14 CAIB Report at 59-60. 15 34 F.3d 968 (10th Cir. 1994). Id. at 55. 42 16 487 U.S. 500 (1988). Id. at 53. 43 17 Id. at 512. Id. at 177. 44 18 Id. Id. at 139. 45 19 Wagner, Note: Tate v. Boeing Helicopters: Id. at 169. Government Contractors Increasingly At Risk 20 Id. at 140. 21 Despite the Government Contractor Defense, CAIB Report, Appendix. 23 N. Ky. L. Rev. 377, 384 (Spring 1996).

46 Loy, Note: The Government Contractor Defense: Is It a Weapon Only for the Military?, 83 Ky. L.J. 505, 512 (1994). 47 See, Cantu and Young, The Government Contractor Defense: Breaking the Boyle Barrier, 62 Alb. L. Rev. 403, 421. 48 Boyle, supra, at 513. 49 Nash & Cibinic, The Government Contractor Defense: The Supreme Court Expands Protection, 2 N&CR ¶48 (August 1988). 50 Id. 51 Seidelson, From Feres v. United States to Boyle v. United Technologies Corp.: An Examination of Supreme Court Jurisprudence and a Couple of Suggestions, 32 Duq. L. Rev.219, 264 (Winter, 1994). 52 42 U.S.C. § 2472. 53 Loy, supra; Townsend, Comment: Ambulance Chasers Beware: Carley v. Wheeled Coach and the Questionable Expansion of the Government Contractor Defense, 78 Minn. L. Rev. 1545 (June, 1994). 54 Loy, supra, at 514-515. 55 516 U.S. 417 (1996) 56 Id. 57 Id. 58 See, Cantu and Young, supra. 59 Landgraf v. McDonnell Douglas Helicopter Co., 993 F.2d 558 (6th Cir. 1993). In effect, acceptance of the deviation by the government constitutes a de facto conformance with the specification. 60 Wagner, supra, at 386. 61 Quiles v. Sikorsky Aircraft, 84 F. Supp. 2d 154 (D. Mass. 1999). 62 Oliver v. Oshkosh Truck Corp., 96 F.3d 992 (7th Cir. 1996). 63 Wagner, supra, at 401-404. 64 Boyle, supra, at 511. The Boyle Court, however, did hint that under the right circumstances a state requirement for certain safety features not in conflict with federal specifications might not trigger pre-emption under Boyle. Id. at 509. 65 42 U.S.C. 2458b. 66 Berman, The Legal Cleanup: Lawyers Consider Issues Stemming From Crash of Space Shuttle Columbia, 89 A.B.A.J. 19 (August, 2003). 67 Johnson, Shuttle Contractors May Face Liability Suits; But Contract and Court Ruling Could Prevent Repeat of Challenger’s $10 Million in Settlements, The Washington Post, February 4, 2003, p. E1.