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SUPREME COURT OF THE UNITED STATES
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No. 82-1349
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1984.SCT.42534 <http://www.versuslaw.com>; 467 U.S. 797, 104
S. Ct. 2755, 81 L. Ed. 2d 660, 52 U.S.L.W. 4833
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decided*fn*: June 19, 1984.
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UNITED STATES
v.
S. A. EMPRESA DE VIACAO AEREA RIO GRANDENSE
(VARIG AIRLINES) ET AL.
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CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT.
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Deputy Solicitor General Geller argued the cause for the United
States. With him on the briefs were Solicitor General Lee, Assistant
Attorney General McGrath, Carter G. Phillips, Leonard Schaitman, and John
C. Hoyle.
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Richard F. Gerry argued the cause for respondents in both cases and
filed a brief for respondents in No. 82-1350. Phillip D. Bostwick and
James B. Hamlin filed a brief for respondent Varig Airlines in No.
82-1349. Robert R. Smiley III filed a brief for respondents Mascher et al.
in No. 82-1349.*fn**
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Burger, C. J., delivered the opinion for a unanimous
Court.
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Author: Burger
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CHIEF JUSTICE BURGER delivered the opinion of the Court.
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We granted certiorari in these two cases to determine whether the
United States may be held liable under the Federal Tort Claims Act, 28 U.
S. C. 2671 et seq., for the negligence of the Federal Aviation
Administration in certificating certain aircraft for use in commercial
aviation.
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I
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A. No. 82-1349
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On July 11, 1973, a commercial jet aircraft owned by respondent S. A.
Empresa De Viacao Aerea Rio Grandense (Varig Airlines) was flying from Rio
de Janeiro to Paris when a
fire broke out in one of the aft lavatories. The fire produced a thick
black smoke, which quickly filled the cabin and cockpit. Despite the
pilots' successful effort to land the plane, 124 of the 135 persons on
board died from asphyxiation or the effects of toxic gases produced by the
fire. Most of the plane's fuselage was consumed by a postimpact
fire.
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The aircraft involved in this accident was a Boeing 707, a product of
the Boeing Co. In 1958 the Civil Aeronautics Agency, a predecessor of the
FAA, had issued a type certificate*fn1 for the Boeing 707, certifying that its
designs, plans, specifications, and performance data had been shown to be
in conformity with minimum safety standards. Seaboard Airlines originally
purchased this particular plane for domestic use; in 1969 Seaboard sold
the plane to respondent Varig Airlines, a Brazilian air carrier, which
used the plane commercially from 1969 to 1973.
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After the accident respondent Varig Airlines brought an action against
the United States under the Federal Tort Claims Act seeking damages for
the destroyed aircraft. The families and personal representatives of many
of the passengers, also respondents here, brought a separate suit under
the Act pressing claims for wrongful death. The two actions were
consolidated in the United States District Court for the Central District
of California.
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Respondents asserted that the fire originated in the towel disposal
area located below the sink unit in one of the lavatories and alleged that
the towel disposal area was not capable of
containing fire. In support of their argument, respondents pointed to an
air safety regulation requiring that waste receptacles be made of
fire-resistant materials and incorporate covers or other provisions for
containing possible fires. 14 CFR 4b.381(d) (1956). Respondents claimed
that the CAA had been negligent when it inspected the Boeing 707 and
issued a type certificate to an aircraft that did not comply with CAA fire
protection standards. The District Court granted summary judgment for the
United States on the ground that California law does not recognize an
actionable tort duty for inspection and certification activities. The
District Court also found that, even if respondents had stated a cause of
action in tort, recovery against the United States was barred by two
exceptions to the Act: the discretionary function exception, 28 U. S. C.
2680(a),*fn2 and the misrepresentation exception,
2680(h).*fn3
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The United States Court of Appeals for the Ninth Circuit reversed. 692 F.2d 1205 (1982). The Court of Appeals reasoned
that a private person inspecting and certificating aircraft for
airworthiness would be liable for negligent inspection under the
California "Good Samaritan" rule, see Restatement (Second) of Torts 323
and 324A (1965), and concluded that the United States should be judged by
the same rule. 692 F.2d, at 1207-1208. The Court of
Appeals rejected the Government's argument that respondents' actions were
barred by 28 U. S. C. 2680(h), which provides that the United States is
not subject to liability for any claim arising
out of misrepresentation. Interpreting respondents' claims as arising from
the negligence of the CAA inspection rather than from any implicit
misrepresentation in the resultant certificate, the Court of Appeals held
that the misrepresentation exception did not apply. 692 F.2d, at
1208. Finally, the Court of Appeals addressed the Government's
reliance upon the discretionary function exception to the Act, 28 U. S. C.
2680(a), which exempts the United States from liability for claims "based
upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty. . . ." The Court of Appeals viewed the
inspection of aircraft for compliance with air safety regulations as a
function not entailing the sort of policymaking discretion contemplated by
the discretionary function exception. 692 F.2d, at 1208-1209.
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B. No. 82-1350
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On October 8, 1968, a DeHavilland Dove aircraft owned by respondent
John Dowdle and used in the operation of an air taxi service caught fire
in midair, crashed, and burned near Las Vegas, Nev. The pilot, co-pilot,
and two passengers were killed. The cause of the crash was an in-flight
fire in the forward baggage compartment of the aircraft.
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The DeHavilland Dove airplane was manufactured in the United Kingdom
in 1951 and then purchased by Air Wisconsin, another air taxi operator. In
1965 Air Wisconsin contracted with Aerodyne Engineering Corp. to install a
gasoline-burning cabin heater in the airplane. Aerodyne applied for, and
was granted, a supplemental type certificate*fn4 from the FAA authorizing the installation
of the heater. Aerodyne then installed the heater pursuant to its contract
with
Air Wisconsin. In 1966, relying in part upon the supplemental type
certificate as an indication of the airplane's airworthiness, respondent
Dowdle purchased the DeHavilland Dove from Air Wisconsin.
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In the aftermath of the crash, respondent Dowdle filed this action for
property damage against the United States under the Federal Tort Claims
Act. Respondent insurance companies also filed suit under the Act, seeking
reimbursement for moneys paid for liability coverage on behalf of Dowdle.
The United States District Court for the Southern District of California
found that the crash resulted from defects in the installation of the
gasoline line leading to the cabin heater. The District Court concluded
that the installation did not comply with the applicable FAA regulations
and held that the Government was negligent in certifying an installation
that did not comply with those safety requirements. Accordingly, the
District Court entered judgment for respondents.
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On appeal, the United States Court of Appeals for the Ninth Circuit
reversed and remanded for the District Court to consider whether the
California courts would impose a duty of due care upon the Government by
applying the "Good Samaritan" doctrine of 323 and 324A of the Restatement
(Second) of Torts. 614 F.2d 188 (1979). The Court of
Appeals also requested the District Court to determine whether, under the
facts of this case, the California courts would find such a duty breached
if a private person had issued the supplemental type certificate in
question here. On remand, the District Court again entered judgment for
respondents, finding that the California "Good Samaritan" rule would apply
in this case and would give rise to liability on these
facts.
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On the Government's second appeal, the Ninth Circuit affirmed the
judgment of the District Court. 692 F.2d 1209 (1982).
In so holding, the Court of Appeals followed reasoning nearly identical to
that employed in its decision in No. 82-1349, decided the same day. We
granted certiorari, 461 U.S. 925 (1983), and we now
reverse.
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II
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In the Federal Aviation Act of 1958, 49 U. S. C. 1421(a)(1),*fn5 Congress directed the Secretary of
Transportation to promote the safety of flight of civil aircraft in air
commerce by establishing minimum standards for aircraft design, materials,
workmanship, construction, and performance. Congress also granted the
Secretary the discretion to prescribe reasonable rules and regulations
governing the inspection of aircraft, including the manner in which such
inspections should be made. 1421(a)(3). Congress emphasized, however, that
air carriers themselves retained certain responsibilities to promote the
public interest in air safety: the duty to perform their services with the
highest possible degree of safety, 1421(b), the duty to make or cause to
be made every inspection required by the Secretary, 1425(a), and the duty
to observe and comply with all other administrative requirements
established by the Secretary, 1425(a).
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Congress also established a multistep certification process to monitor
the aviation industry's compliance with the requirements developed by the
Secretary. Acting as the Secretary's
designee,*fn6 the FAA has promulgated a comprehensive set
of regulations delineating the minimum safety standards with which the
designers and manufacturers of aircraft must comply before marketing their
products. See 14 CFR pts. 23, 25, 27, 29, 31, 33, and 35 (1983). At each
step in the certification process, FAA employees or their representatives
evaluate materials submitted by aircraft manufacturers to determine
whether the manufacturer has satisfied these regulatory requirements. Upon
a showing by the manufacturer that the prescribed safety standards have
been met, the FAA issues an appropriate certificate permitting the
manufacturer to continue with production and marketing.
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The first stage of the FAA compliance review is type certification. A
manufacturer wishing to introduce a new type of aircraft must first obtain
FAA approval of the plane's basic design in the form of a type
certificate. After receiving an application for a type certificate, the
Secretary must "make, or require the applicant to make, such tests during
manufacture and upon completion as the Secretary . . . deems reasonably
necessary in the interest of safety. . . ." 49 U. S. C. 1423(a)(2). By
regulation, the FAA has made the applicant itself responsible for
conducting all inspections and tests necessary to determine that the
aircraft comports with FAA airworthiness requirements. 14 CFR 21.33, 21.35
(1983). The applicant submits to the FAA the designs, drawings, test
reports, and computations necessary to show that the aircraft sought to be
certificated satisfies FAA regulations. 21.17(a)(1), 21.21(a)(b).*fn7 In the course of the type certification process,
the manufacturer produces a prototype of the new aircraft and conducts
both ground and flight tests. 21.35. FAA employees or their
representatives then review the data submitted by the applicant and make
such inspections or tests as they deem necessary to ascertain compliance
with the regulations. 21.33(a). If the FAA finds that the proposed
aircraft design comports with minimum safety standards, it signifies its
approval by issuing a type certificate. 49 U. S. C. 1423(a)(2); 14 CFR
21.21(a)(1) (1983).
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Production may not begin, however, until a production certificate
authorizing the manufacture of duplicates of the prototype is issued. 49
U. S. C. 1423(b). To obtain a production certificate, the manufacturer
must prove to the FAA that it has established and can maintain a quality
control system to assure that each aircraft will meet the design
provisions of the type certificate. 14 CFR 21.139, 21.143 (1983). When it
is satisfied that duplicate aircraft will conform to the approved type
design, the FAA issues a production certificate, and the manufacturer may
begin mass production of the approved aircraft.
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Before any aircraft may be placed into service, however, its owner
must obtain from the FAA an airworthiness certificate, which denotes that
the particular aircraft in question conforms to the type certificate and
is in condition for safe operation. 49 U. S. C. 1423(c). It is unlawful
for any person to operate an aircraft in air commerce without a valid
airworthiness certificate. 1430(a).
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An additional certificate is required when an aircraft is altered by
the introduction of a major change in its type design. 14 CFR 21.113
(1983). To obtain this supplemental type certificate, the applicant must
show the FAA that the altered aircraft meets all applicable airworthiness
requirements. 21.115(a). The applicant is responsible for conducting the
inspections and tests necessary to demonstrate that each change in the
type design complies with the regulations. 21.115(b), 21.33(b). The
methods used by FAA employees
or their representatives to determine an applicant's compliance with
minimum safety standards are generally the same as those employed for
basic type certification. FAA Order 8110.4, Type Certification 32 (1967)
(hereinafter FAA Order 8110.4); CAA Manual of Procedure, Flight Operations
and Airworthiness, Type Certification .5106(a) (1957) (hereinafter CAA
Manual of Procedure).
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With fewer than 400 engineers, the FAA obviously cannot complete this
elaborate compliance review process alone. Accordingly, 49 U. S. C. 1355
authorizes the Secretary to delegate certain inspection and certification
responsibilities to properly qualified private persons. By regulation, the
Secretary has provided for the appointment of private individuals to serve
as designated engineering representatives to assist in the FAA
certification process. 14 CFR 183.29 (1984). These representatives are
typically employees of aircraft manufacturers who possess detailed
knowledge of an aircraft's design based upon their day-to-day involvement
in its development. See generally Improving Aircraft Safety 29-30. The
representatives act as surrogates of the FAA in examining, inspecting, and
testing aircraft for purposes of certification. 14 CFR 183.1 (1984). In
determining whether an aircraft complies with FAA regulations, they are
guided by the same requirements, instructions, and procedures as FAA
employees. FAA Order 8110.4, p. 151; CAA Manual of Procedure .70(b). FAA
employees may briefly review the reports and other data submitted by
representatives before certificating a subject aircraft. Improving
Aircraft Safety 31-32; FAA Order 8110.4, p. 159; CAA Manual of Procedure
.77.
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III
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The Federal Tort Claims Act, 28 U. S. C. 1346(b), authorizes suits
against the United States for damages
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"for injury or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his office
or employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred."
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The Act further provides that the United States shall be liable with
respect to tort claims "in the same manner and to the same extent as a
private individual under like circumstances." 2674.
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The Act did not waive the sovereign immunity of the United States in
all respects, however; Congress was careful to except from the Act's broad
waiver of immunity several important classes of tort claims. Of particular
relevance here, 28 U. S. C. 2680(a) provides that the Act shall not apply
to
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"[any] claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be
abused." (Emphasis added.)
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The discretionary function exception, embodied in the second clause of
2680(a), marks the boundary between Congress' willingness to impose tort
liability upon the United States and its desire to protect certain
governmental activities from exposure to suit by private
individuals.
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Although the Court has previously analyzed the legislative history of
2680(a), see Dalehite v. United States, 346 U.S. 15,
26-30 (1953), we briefly review its highlights for a proper understanding
of the application of the discretionary function exception to this case.
During the years of debate and discussion preceding
the passage of the Act, Congress considered a number of tort claims bills
including exceptions from the waiver of sovereign immunity for claims
based upon the activities of specific federal agencies, notably the
Federal Trade Commission and the Securities and Exchange Commission. See,
e. g., H. R. 5373, 77th Cong., 2d Sess. (1942); H. R. 7236, 76th Cong.,
1st Sess. (1940); S. 2690, 76th Cong., 1st Sess. (1939).*fn8 In 1942, however, the 77th Congress
eliminated the references to these particular agencies and broadened the
exception to cover all claims based upon the execution of a statute or
regulation or the performance of a discretionary function. H. R. 6463,
77th Cong., 2d Sess. (1942); S. 2207, 77th Cong., 2d Sess. (1942). The
language of the exception as drafted during the 77th Congress is identical
to that of 2680(a) as ultimately adopted.
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The legislative materials of the 77th Congress illustrate most clearly
Congress' purpose in fashioning the discretionary function exception. A
Government spokesman appearing before the House Committee on the Judiciary
described the discretionary function exception as a "highly important
exception:"
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"[It is] designed to preclude application of the act to a claim based
upon an alleged abuse of discretionary authority by a regulatory or
licensing agency -- for example, the Federal Trade Commission, the
Securities and Exchange Commission, the Foreign Funds Control Office of
the Treasury, or others. It is neither desirable nor intended that the
constitutionality of legislation, the legality of regulations, or the
propriety of a discretionary administrative act should be tested through
the medium of
a damage suit for tort. The same holds true of other administrative action
not of a regulatory nature, such as the expenditure of Federal funds, the
execution of a Federal project, and the like.
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"On the other hand, the common law torts of employees of regulatory
agencies, as well as of all other Federal agencies, would be included
within the scope of the bill." Hearings on H. R. 5373 and H. R. 6463
before the House Committee on the Judiciary, 77th Cong., 2d Sess., 28, 33
(1942) (statement of Assistant Attorney General Francis M. Shea).*fn9
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It was believed that claims of the kind embraced by the discretionary
function exception would have been exempted from the waiver of sovereign
immunity by judicial construction; nevertheless, the specific exception
was added to make clear that the Act was not to be extended into the realm
of the validity of legislation or discretionary administrative action.
Id., at 29; id., at 37, Memorandum, with Appendixes, Federal Tort Claims
Act (explanatory of Comm. Print of H. R. 5373, 1942). It was considered
unnecessary to except by name such agencies as the Federal Trade
Commission and the Securities and Exchange Commission, as had earlier
bills, because the language of the discretionary function exception would
"[exempt] from the act claims against Federal agencies growing out of
their regulatory activities." Id., at 8 (emphasis added).
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The nature and scope of 2680(a) were carefully examined in Dalehite v.
United States, supra. Dalehite involved vast claims for damages against
the United States arising out of a disastrous explosion of ammonium
nitrate fertilizer, which had been produced and distributed under the
direction of the United States for export to devastated areas occupied by
the Allied Armed Forces after World War II. Numerous acts of the
Government were charged as negligent: the cabinet-level decision to
institute the fertilizer export program, the failure to experiment with
the fertilizer to determine the possibility of explosion, the drafting of
the basic plan of manufacture, and the failure properly to police the
storage and loading of the fertilizer.
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The Court concluded that these allegedly negligent acts were
governmental duties protected by the discretionary function exception and
held the action barred by 2680(a). Describing the discretion protected by
2680(a) as "the discretion of the executive or the administrator to act
according to one's judgment of the best course," id., at 34, the Court
stated:
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"It is unnecessary to define, apart from this case, precisely where
discretion ends. It is enough to hold, as we do, that the 'discretionary
function or duty' that cannot form a basis for suit under the Tort Claims
Act includes more than the initiation of programs and activities. It also
includes determinations made by executives or administrators in
establishing plans, specifications or schedules of operations. Where there
is room for policy judgment and decision there is discretion. It
necessarily follows that acts of subordinates in carrying out the
operations of government in accordance with official directions cannot be
actionable." Id., at 35-36 (footnotes omitted).
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Respondents here insist that the view of 2680(a) expressed in Dalehite
has been eroded, if not overruled, by subsequent cases construing the Act,
particularly Indian Towing Co. v. United States, 350 U.S. 61 (1955), and Eastern Air Lines, Inc. v. Union Trust Co., 95
U. S. App. D.C. 189, 221 F.2d 62, summarily aff'd sub
nom. United States v. Union Trust Co., 350 U.S. 907
(1955). While the Court's reading of the Act admittedly has not followed a
straight line, we do not accept the supposition that Dalehite no longer
represents a
valid interpretation of the discretionary function
exception.
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Indian Towing Co. v. United States, supra, involved a claim under the
Act for damages to cargo aboard a vessel that ran aground, allegedly owing
to the failure of the light in a lighthouse operated by the Coast Guard.
The plaintiffs contended that the Coast Guard had been negligent in
inspecting, maintaining, and repairing the light. Significantly, the
Government conceded that the discretionary function exception was not
implicated in Indian Towing, arguing instead that the Act contained an
implied exception from liability for "uniquely governmental functions."
Id., at 64. The Court rejected the Government's assertion, reasoning that
it would "push the courts into the 'non-governmental'-'governmental'
quagmire that has long plagued the law of municipal corporations." Id., at
65.
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In Eastern Air Lines, Inc. v. Union Trust Co., supra, two aircraft
collided in midair while both were attempting to land at Washington
National Airport. The survivors of the crash victims sued the United
States under the Act, asserting the negligence of air traffic controllers
as the cause of the collision. The United States Court of Appeals for the
District of Columbia Circuit permitted the suit against the Government. In
its petition for certiorari, the Government urged the adoption of a
"governmental function exclusion" from liability under the Act and pointed
to 2680(a) as textual support for such an exclusion. Pet. for Cert. in
United States v. Union Trust Co., O. T. 1955, No. 296, p. 18. The
Government stated further that 2680(a) was "but one aspect of the broader
exclusion from the statute of claims based upon the performance of acts of
a uniquely governmental nature." Id., at 37. This Court summarily
affirmed, citing Indian Towing Co. v. United States, supra. 350
U.S. 907 (1955). Given the thrust of the arguments presented in
the petition for certiorari and the pointed citation to Indian Towing, the
summary disposition in Union Trust Co. cannot be taken as a wholesale
repudiation of the view of 2680(a) set forth in Dalehite.*fn10
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As in Dalehite, it is unnecessary -- and indeed impossible -- to
define with precision every contour of the discretionary function
exception. From the legislative and judicial materials, however, it is
possible to isolate several factors useful in determining when the acts of
a Government employee are protected from liability by 2680(a). First, it
is the nature of the conduct, rather than the status of the actor, that
governs whether the discretionary function exception applies in a given
case. As the Court pointed out in Dalehite, the exception covers "[not]
only agencies of government . . . but all employees exercising
discretion." 346 U.S., at 33. Thus, the basic inquiry
concerning the application of the discretionary function exception is
whether the challenged acts of a Government employee -- whatever his or
her rank -- are of the nature and quality that Congress intended to shield
from tort liability.
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Second, whatever else the discretionary function exception may
include, it plainly was intended to encompass the discretionary acts of
the Government acting in its role as a regulator of
the conduct of private individuals.*fn11 Time and again the legislative history
refers to the acts of regulatory agencies as examples of those covered by
the exception, and it is significant that the early tort claims bills
considered by Congress specifically exempted two major regulatory agencies
by name. See supra, at 808-810. This emphasis upon protection for
regulatory activities suggests an underlying basis for the inclusion of an
exception for discretionary functions in the Act: Congress wished to
prevent judicial "second-guessing" of legislative and administrative
decisions grounded in social, economic, and political policy through the
medium of an action in tort. By fashioning an exception for discretionary
governmental functions, including regulatory activities, Congress took
"steps to protect the Government from liability that would seriously
handicap efficient government operations." United States v. Muniz, 374 U.S. 150, 163 (1963).
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IV
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We now consider whether the discretionary function exception immunizes
from tort liability the FAA certification process involved in these cases.
Respondents in No. 82-1349 argue that the CAA was negligent in issuing a
type certificate for the Boeing 707 aircraft in 1958 because the lavatory
trash receptacle did not satisfy applicable safety regulations. Similarly,
respondents in No. 82-1350 claim negligence in the FAA's issuance of a
supplemental type certificate in 1965 for the DeHavilland Dove aircraft;
they assert that the installation of the fuel line leading to the cabin
heater violated FAA airworthiness standards. From the records in these
cases there is no indication that either the Boeing 707 trash receptacle
or the DeHavilland Dove cabin heater was actually inspected or reviewed by
an FAA inspector or representative. Brief
for Respondent Varig Airlines in No. 82-1349, pp. 8, 15; Brief for United
States 10, n. 10, and 37. Respondents thus argue in effect that the
negligent failure of the FAA to inspect certain aspects of aircraft type
design in the process of certification gives rise to a cause of action
against the United States under the Act.
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The Government, on the other hand, urges that the basic responsibility
for satisfying FAA air safety standards rests with the manufacturer, not
with the FAA. The role of the FAA, the Government says, is merely to
police the conduct of private individuals by monitoring their compliance
with FAA regulations. According to the Government, the FAA accomplishes
its monitoring function by means of a "spot-check" program designed to
encourage manufacturers and operators to comply fully with minimum safety
requirements. Such regulatory activity, the Government argues, is the sort
of governmental conduct protected by the discretionary function exception
to the Act.*fn12 We agree that the discretionary function
exception precludes a tort action based upon the conduct of the FAA in
certificating these aircraft for use in commercial aviation.
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As noted supra, at 804, the Secretary of Transportation has the duty
to promote safety in air transportation by promulgating reasonable rules
and regulations governing the inspection, servicing, and overhaul of civil
aircraft. 49 U. S. C. 1421(a)(3)(A). In her discretion, the Secretary may
also prescribe
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"the periods for, and the manner in, which such inspection, servicing,
and overhaul shall be made, including provision for examinations and
reports by properly qualified private persons whose examinations or
reports the Secretary of Transportation may accept in lieu of those made
by its officers and employees." 1421(a)(3)(C) (emphasis
added).
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Thus, Congress specifically empowered the Secretary to establish and
implement a mechanism for enforcing compliance with minimum safety
standards according to her "judgment of the best course." Dalehite v.
United States, 346 U.S., at 34.
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In the exercise of this discretion, the FAA, as the Secretary's
designee, has devised a system of compliance review that involves
certification of aircraft design and manufacture at several stages of
production. See supra, at 804-806. The FAA certification process is
founded upon a relatively simple notion: the duty to ensure that an
aircraft conforms to FAA safety regulations lies with the manufacturer and
operator, while the FAA retains the responsibility for policing
compliance.*fn13 Thus, the manufacturer is required to
develop the plans
and specifications and perform the inspections and tests necessary to
establish that an aircraft design comports with the applicable
regulations; the FAA then reviews the data for conformity purposes by
conducting a "spot check" of the manufacturer's work.
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The operation of this "spot-check" system is outlined in detail in the
handbooks and manuals developed by the CAA and FAA for the use of their
employees. For example, the CAA Manual of Procedure for type certification
in effect at the time of the certification of the Boeing 707
provided:
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"Conformity determination may be varied depending upon circumstances.
A manufacturer's policies, quality control procedures, experience,
inspection personnel, equipment, and facilities will dictate the extent of
conformity inspection to be conducted or witnessed by [CAA employees].
Differences between manufacturers require that the conformity program be
adjusted to fit existing conditions. In the case of an inexperienced
manufacturer whose ability is unknown, it may be necessary to conduct a
high percentage of conformity inspections until such time as the [CAA]
inspector feels he can safely rely to a greater degree upon the company
inspectors. He may then gradually reduce his own inspection or witnessing
accordingly. "Experienced
manufacturers having previously demonstrated the acceptability of their
quality control and inspection competence . . . should benefit by greater
[CAA] confidence. In such cases, conformity determination may be made
through a planned system of spot-checking critical parts and assemblies
and by reviewing inspection records and materials review dispositions.
Page 818} . . . It is not intended that the inspector personally conduct a
complete conformity inspection of each part he records on a [CAA] form. He
should, however, visually inspect and witness the manufacturer's
inspection of the critical characteristics. . . . In a program of this
type, increased confidence in the manufacturer, plus a planned program of
spot-checking by [CAA employees], should result in obtaining increased
knowledge of conformity of the end product. . . .
|
| [63] |
"Regardless of the manufacturer's experience, it is the [CAA]
inspector's responsibility to assure that a complete conformity inspection
has been performed by the manufacturer and that the results of this
inspection are properly recorded and reported." CAA Manual of Procedure
.330 (emphasis added).
|
| [64] |
See also FAA Order 8110.4, pp. 39-40.
|
| [65] |
As to the engineering review of an application for a type certificate,
the CAA materials note that only a "relatively small number of engineers"
are available to evaluate for compliance with air safety regulations the
data submitted by applicants. Accordingly, the Manual
states:
|
| [66] |
" It is obvious that complete detailed checking of data is not
possible. Instead, an overriding check method should be used [which] is
predicated on the fact that the applicant has completely checked all data
presented for examination. These data are to be examined in turn by the
[CAA] engineer for method and completeness, and with sufficient
spot-checking to ascertain that the design complies with the minimum
airworthiness requirements." CAA Manual of Procedure .41 (emphasis
added).
|
| [67] |
See also FAA Order 8110.4, p. 60.*fn14 The
procedure for supplemental type certification is much the same. According
to the Manual of Procedure applicable to the supplemental type
certification of the DeHavilland Dove, an applicant must submit to the FAA
data describing the proposed change in type design, which may be
accompanied by drawings or photographs of the suggested alteration. The
methods for determining compliance with applicable safety regulations are
generally the same as those used for basic type certification. Physical
inspections of the proposed modification in type design are required when
compliance with the applicable regulations "cannot be determined
adequately from an evaluation of the technical data." CAA Manual of
Procedure 5106(b). Moreover, FAA representatives are authorized to approve
data covering major changes in type design and obtain supplemental type
certifications without prior review by the FAA. Id. 764(a). See also FAA
Order 8110.4, pp. 31-32, 158.
|
| [68] |
Respondents' contention that the FAA was negligent in failing to
inspect certain elements of aircraft design before certificating the
Boeing 707 and DeHavilland Dove necessarily challenges two aspects of the
certification procedure: the FAA's decision to implement the "spot-check"
system of compliance review, and the application of that "spot-check"
system to the particular aircraft involved in these cases. In our view,
both components of respondents' claim are barred by the discretionary
function exception to the Act.
|
| [69] |
The FAA's implementation of a mechanism for compliance review is
plainly discretionary activity of the "nature and quality" protected by
2680(a). When an agency determines the extent to which it will supervise
the safety procedures of private individuals, it is exercising
discretionary regulatory authority
of the most basic kind. Decisions as to the manner of enforcing
regulations directly affect the feasibility and practicality of the
Government's regulatory program; such decisions require the agency to
establish priorities for the accomplishment of its policy objectives by
balancing the objectives sought to be obtained against such practical
considerations as staffing and funding. Here, the FAA has determined that
a program of "spot-checking" manufacturers' compliance with minimum safety
standards best accommodates the goal of air transportation safety and the
reality of finite agency resources. Judicial intervention in such
decisionmaking through private tort suits would require the courts to
"second-guess" the political, social, and economic judgments of an agency
exercising its regulatory function. It was precisely this sort of judicial
intervention in policymaking that the discretionary function exception was
designed to prevent.
|
| [70] |
It follows that the acts of FAA employees in executing the
"spot-check" program in accordance with agency directives are protected by
the discretionary function exception as well. See Dalehite v. United
States, 346 U.S., at 36. The FAA employees who
conducted compliance reviews of the aircraft involved in this case were
specifically empowered to make policy judgments regarding the degree of
confidence that might reasonably be placed in a given manufacturer, the
need to maximize compliance with FAA regulations, and the efficient
allocation of agency resources. In administering the "spot-check "
program, these FAA engineers and inspectors necessarily took certain
calculated risks, but those risks were encountered for the advancement of
a governmental purpose and pursuant to the specific grant of authority in
the regulations and operating manuals. Under such circumstances, the FAA's
alleged negligence in failing to check certain specific items in the
course of certificating a particular aircraft falls squarely within the
discretionary function exception of 2680(a). V
|
| [71] |
In rendering the United States amenable to some suits in tort,
Congress could not have intended to impose liability for the regulatory
enforcement activities of the FAA challenged in this case. The FAA has a
statutory duty to promote safety in air transportation, not to insure it.
We hold that these actions against the FAA for its alleged negligence in
certificating aircraft for use in commercial aviation are barred by the
discretionary function exception of the Federal Tort Claims Act.
Accordingly, the judgments of the United States Court of Appeals for the
Ninth Circuit are reversed.
|
| [72] |
It is so ordered.
|
| [73] |
Disposition
|
| [74] |
692 F.2d 1205 and 692 F.2d 1209, reversed.
|
| |
|
| |
General Footnotes
|
| |
|
| [75] |
*fn* Together with No. 82-1350, United States
v. United Scottish Insurance Co. et al., also on certiorari to the same
court.
|
| |
|
| |
Counsel Footnotes
|
| |
|
| [76] |
*fn** Marc S. Moller and Donald I. Marlin filed
a brief for the Association of Trial Lawyers of America as amicus curiae
urging affirmance.
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| |
|
| |
Opinion Footnotes
|
| |
|
| [77] |
*fn1 Before introducing a new type of aircraft,
a manufacturer must first obtain from the FAA a type certificate
signifying that the basic design of the aircraft meets the minimum
criteria specified in the safety regulations promulgated by the FAA. 49 U.
S. C. 1423(a); 14 CFR 21.11-21.53 (1983). When applying for a type
certificate, the manufacturer must supply the FAA with detailed plans,
data, and documentation illustrating the aircraft design and demonstrating
its compliance with FAA regulations. FAA employees or private employees
who represent the FAA then examine the manufacturer's submission for
conformity with the regulations. See infra, at 805-806.
|
| [78] |
*fn2 Under 28 U. S. C. 2680(a), the United
States may not be held liable under the Act for:
"Any claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be
abused."
|
| [79] |
*fn3 Title 28 U. S. C. 2680(h) states that the
provisions of the Act shall not apply to "[any] claim arising out of . . .
misrepresentation. . . ."
|
| [80] |
*fn4 Any person who alters an aircraft by
introducing a major change in the type design must obtain from the FAA a
supplemental type certificate. 14 CFR 21.113 (1983). In order to obtain
such a certificate, the applicant must supply the FAA with drawings,
plans, and other data sufficient to establish that the altered aircraft
meets all applicable airworthiness requirements. 21.115. See infra, at
806-807.
|
| [81] |
*fn5 In 1958, when the type certificate for the
Boeing 707 aircraft owned by respondent Varig Airlines was issued, the
Civil Aeronautics Act of 1938, 52 Stat. 1007, was the governing statute.
Because the relevant provisions of the Federal Aviation Act are virtually
identical to those of its predecessor, see Civil Aeronautics Act of 1938,
601, 605, 52 Stat. 1007-1008, 1010-1011, for ease of reference we will
refer only to the current version of the statute.
As originally enacted, the Federal Aviation Act vested in the Federal
Aviation Agency all regulatory authority over aviation safety. See Pub. L.
85-726, 101, 72 Stat. 737. This agency was later renamed the Federal
Aviation Administration and placed in the Department of Transportation.
Pub. L. 89-670, 3(e), 6(c)(1), 80 Stat. 932, 938. All the functions,
powers, and duties of the Federal Aviation Agency were then transferred to
the Secretary of Transportation. 6(c)(1), 80 Stat. 938.
|
| [82] |
*fn6 See Pub. L. 89-670, 6(c)(1), 80 Stat.
938.
|
| [83] |
*fn7 One major manufacturer of commercial
aircraft estimated that in the course of obtaining a type certificate for
a new wide-body aircraft it would submit to the FAA approximately 300,000
engineering drawings and changes, 2,000 engineering reports, and 200 other
reports. In addition, it would subject the aircraft to about 80 major
ground tests and 1,600 hours of flight tests. National Research Council,
Committee on FAA Airworthiness Certification Procedures, Improving
Aircraft Safety 29 (1980) (hereinafter Improving Aircraft
Safety).
|
| [84] |
*fn8 For example, 303(7) of H. R. 7236, 76th
Cong., 1st Sess. (1940), provided that the waiver of sovereign immunity
should not extend to "[any] claim for damages caused by the administration
of any law or laws by the Federal Trade Commission or by the Securities
and Exchange Commission."
|
| [85] |
*fn9 The Committee incorporated the Government's
view into its Report almost verbatim. H. R. Rep. No. 2245, 77th Cong., 2d
Sess., 10 (1942).
|
| [86] |
*fn10 Respondents' reliance upon Rayonier, Inc.
v. United States, 352 U.S. 315 (1957), is equally
misplaced. In Rayonier the Court revisited an issue considered briefly in
Dalehite : whether the United States may be held liable for the alleged
negligence of its employees in fighting a fire. In Dalehite, the Court
held that alleged negligence in firefighting was not actionable under the
Act, basing its decision upon "the normal rule that an alleged failure or
carelessness of public firemen does not create private actionable rights."
Dalehite v. United States, 346 U.S., at 43. In so
holding, the Dalehite Court did not discuss or rely upon the discretionary
function exception. The Rayonier Court rejected the reasoning of Dalehite
on the ground that the liability of the United States under the Act is not
restricted to that of a municipal corporation or other public body.
Rayonier, Inc. v. United States, supra, at 319 (citing Indian Towing Co.
v. United States, 350 U.S. 61 (1955)). While the
holding of Rayonier obviously overrules one element of the judgment in
Dalehite, the more fundamental aspects of Dalehite, including its
construction of 2680(a), remain undisturbed.
|
| [87] |
*fn11 Even the dissenters in Dalehite read the
legislative history of the discretionary function exception as protecting
"that type of discretion which government agencies exercise in regulating
private individuals." Dalehite v. United States, 346 U.S., at
58, n. 12 (Jackson, J., joined by Black and Frankfurter, JJ.,
dissenting).
|
| [88] |
*fn12 The Government presses two additional
arguments in support of reversal. First, the Government asserts that the
conduct of the FAA in certificating aircraft is a core governmental
activity that is not actionable under the Act, because no private
individual engages in analogous activity. See 28 U. S. C. 1346(b) and
2674. Second, the Government interprets respondents' claims as based upon
misrepresentations contained in the certificates and argues that they are
barred by the misrepresentation exception to the Act. 2680(h); see n. 4,
supra. Respondents urge that the first argument is precluded by Indian
Towing Co. v. United States, supra, and the second by our decision last
Term in Block v. Neal, 460 U.S. 289 (1983). Because
we rest our decision today upon the discretionary function exception, we
find it unnecessary to address these additional issues.
The Government also argues that the Court of Appeals erred in applying
California's "Good Samaritan" doctrine to the FAA certification process.
See supra, at 801, 803. But the application of the "Good Samaritan"
doctrine is at bottom a question of state law, and we generally accord
great deference to the interpretation and application of state law by the
Courts of Appeals. See, e. g., Pacific Gas & Elec. Co. v. State Energy
Resources Conservation & Dev. Comm'n, 461 U.S. 190, 214 (1983); Runyon v. McCrary, 427 U.S. 160, 181-182 (1976) (quoting Bishop v. Wood, 426 U.S.
341, 346, and n. 10 (1976)). We thus decline the Government's
invitation to undertake our own examination of this state-law
issue.
|
| [89] |
*fn13 This premise finds ample support in the
statute and regulations. See, e. g., 49 U. S. C. 1421(b) (duty rests on
air carriers to perform their services with highest possible degree of
safety); 1425(a) (air carrier has duty to make or cause to be made
inspections required by Secretary and duty to comply with regulations); 14
CFR 21.17 (1983) (applicant for type certificate must show that aircraft
meets applicable requirements); 21.33 (applicant for type certificate must
conduct all tests and inspections necessary to determine compliance);
21.35 (specifying tests that must be made by applicants for type
certificates).
|
| [90] |
*fn14 In a recent report, the National Academy
of Sciences recognized that because "FAA engineers cannot review each of
the thousands of drawings, calculations, reports, and tests involved in
the type certification process," the agency must place great reliance on
the manufacturer. Improving Aircraft Safety 6, 29, 31. The report also
noted that "in most cases the FAA staff performs only a cursory review of
the substance of [the] overwhelming volume of documents" submitted for its
approval. Id., at
31-32.
|