653 F.2d 437 (10th Cir. 1981), 79-1197, Baird v. United States

Docket Nº:79-1197, 79-1441.
Citation:653 F.2d 437
Party Name:Galen J. BAIRD, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, v. CAPITOL AIR SERVICE, INC. and Vanguard Insurance Company, Intervenors-Appellants. and CAPITOL AIR SERVICE, INC. and Vanguard Insurance Company, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Case Date:June 29, 1981
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 437

653 F.2d 437 (10th Cir. 1981)

Galen J. BAIRD, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee,

v.

CAPITOL AIR SERVICE, INC. and Vanguard Insurance Company,

Intervenors-Appellants.

and

CAPITOL AIR SERVICE, INC. and Vanguard Insurance Company,

Plaintiffs-Appellants,

v.

UNITED STATES of America, Defendant-Appellee.

Nos. 79-1197, 79-1441.

United States Court of Appeals, Tenth Circuit

June 29, 1981

Argued Nov. 20, 1980.

Alan L. Rupe of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, Kan. (Meryl D. Wilson of Stites, Hill & Wilson, Manhattan, Kan., and Darrell D. Kellogg of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, Kan., with him on the brief), for plaintiffs-appellants.

James P. Buchele, U. S. Atty., Topeka, Kan., for defendant-appellee.

Before BARRETT, DOYLE, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

This is a consolidated appeal after dismissal of a Federal Tort Claims suit under 28 U.S.C. §§ 1346(b), 2671-2680, 1 against

Page 438

the United States for damages that resulted when a small aircraft crashed off the runway at the Paul Windle Airport in Kansas. The claimants are pilot Galen Baird, his employer Capitol Air Service, Inc., and its insurer Vanguard Insurance Co. (collectively "plaintiffs"). They claim that the Government published a misleading aeronautical chart that caused Baird to overestimate the length of a lighted runway on the evening of the crash. The district court dismissed for lack of subject matter jurisdiction after concluding that the chart's issuance fell within the discretionary-function exception of 28 U.S.C. § 2680(a) 2, and that sovereign immunity therefore barred the claim. We affirm.

The parties do not dispute the material facts. At approximately 9:30 p. m. on July 27, 1976, Baird and three passengers flew in Kansas from Ulysses to Greenburg. The group traveled in a Piper Seneca, a small aircraft. In making his landing approach at Greenburg's Paul Windle Airport, Baird used the Wichita Sectional Aeronautical Chart (16th ed., June 17, 1976). The symbols

PAUL WINDLE

2230-L-28

appeared on the chart. According to the chart's legend, "PAUL WINDLE" symbolized the name of the airport. The "2230" indicated "Elevation in feet (above sea-level)." The "28" described the "Length of longest runway in hundreds of feet." Finally, the symbol "L" was to be interpreted according to the following legend:

"L Lighting in operation Sunset to Sunrise

*L Lighting available Sunset to Sunrise only on request (by radio call, letter, phone, telegram).

(L) Lighting in operation part of the night and on request, or not operating thereafter. When facility or information is lacking, the respective character is replaced by a dash."

Rec., supp. vol. II.

From the sectional chart, then, Baird could infer that runway lights would be on at Paul Windle Airport from sunset to sunrise. And in fact, they were. But Baird inferred, in addition, that the runway lights he saw from the air marked off Paul Windle's longest runway whose length in hundreds of feet was reflected in the "28" symbol. Unfortunately, the lighted runway was not Paul Windle's longest. It was a shorter one only 2,580 feet long. Moreover, that runway was lighted for only 2,176 of its 2,580 feet. The aircraft overran the runway and crashed. Two passengers were killed, the third and Baird severely injured.

The Wichita sectional chart expressly states that it was "published in accordance with Inter-Agency Air Cartographic Committee specifications." Rec., supp. vol. II. This Committee, commonly known as the IACC, was created by agreement of the Department of Defense, the Federal Aviation Administration, and the Commerce Department. These three federal agencies intended the IACC to "develop the final detailed and authoritative specifications for the actual flight information materials (both textual and chart forms) which will constitute the official operative materials produced or used by Government agencies," Rec., vol. IV, at 1, subject to the agencies' review and approval. Rec., vol. IV, at 5. Once approved, the specifications would become binding. See id. 3

Page 439

In exercise of its authority, the IACC promulgated specifications, which pertinently provide:

"(5) The airport name shall be supported by the following coded data, positioned immediately above, following or below the airport name as indicated. A dash shall be substituted for the elevation, lighting, or runway length when not shown.

"...

"(e) Lighting symbolization shall indicate the availability of runway lighting to facilitate night landings, and shall be shown below the airport name following the elevation. Runway lighting is defined as a system of lights which defines the useable runway surface and includes lateral lights, referred to as runway lights which mark the sides of the runway, and threshold lights which mark the ends. Lighting in operation sunset to sunrise shall be indicated by the letter 'L.' Lighting available sunset to sunrise only on request (by radio call, letter, phone, telegram) shall be indicated by an asterisk (*) preceding the letter 'L.' Lighting on and operating part of the night and on request, or not operating thereafter, shall have the letter 'L' in parenthesis, e. g. (L). The absence of a night landing capability shall be indicated by a short dash in lieu of the letter 'L.'

"(f) The runway length shall be positioned below the airport name following lighting. Runway length shall be the actual length of the longest active runway (pavement, end to end), including displaced thresholds, but excluding those areas designated as overruns. Runway length shall be shown to the nearest 100 feet using 70 as the division point; e. g., 59 shall be used to indicate a runway of 5,870."

Rec., vol. V, at 94-95.

The "PAUL WINDLE/2230-L-28" symbols on the Wichita sectional chart are in literal compliance with the quoted specifications. Lights were on sunset to sunrise and the longest runway was 2,800 feet. Nevertheless, plaintiffs contend that the Government should be liable for the chart's failure to tell pilot Baird that the longest runway to which the "28" symbol referred was not the runway to which the lighting symbol

Page 440

"L" referred, and that the shorter runway was lit for only 2,176 of its 2,580 feet. They argue that the discretionary-function exception of 28 U.S.C. § 2680(a) does not apply to the Government's "accumulation, standardization, publication and distribution of inaccurate and misleading symbolic information" in the Wichita sectional chart. Appellants' Brief at 1-2. We are compelled to disagree.

Section 2680(a), like every other exception in 28 U.S.C. § 2680, limits the Government's waiver of sovereign immunity. It therefore poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction. See First National Bank v. United States, 552 F.2d 370, 374 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Smith v. United States, 546 F.2d 872, 875-76 (10th Cir. 1976); cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (time limitation on sovereign's consent to suit; 28 U.S.C. § 2401(b)); Knapp v. United States, 636 F.2d 279 (10th Cir. 1980) (same; 28 U.S.C. § 2409a(f)). Thus, to test the district court's jurisdictional dismissal, we must determine whether plaintiffs have challenged a "discretionary function or duty." 28 U.S.C. § 2680(a). But we need not wallow too long in the quagmire of what makes a governmental function discretionary or nondiscretionary, see generally Allnutt v. United States, 498 F.Supp. 832, 835-36 (W.D.Mo.1980); Blessing v. United States, 447 F.Supp. 1160, 1167-85 (E.D.Pa.1978), for we believe plaintiffs' claim falls squarely within the bar of section 2680(a).

Plaintiffs state their claim in terms of the Government's publishing misleading information on the Wichita sectional chart. In essence, they argue the Government could have avoided ambiguity altogether by providing information on the chart to correlate the longest-runway symbol to the available-lighting symbol. But whatever ambiguity inheres in the chart's symbols is traceable to the very terms of the specifications as developed by the IACC. See p. 438 supra. If there is a flaw in the chart, it is a flaw in the design of the IACC specifications themselves, for the chart's symbols are the specifications incarnate. Plaintiffs do not controvert the Government's contention that it has never undertaken

"to indicate on its sectional aeronautical charts which runway at every airport has lights, how much of each runway is lit or the length of each runway. It would be virtually impossible to provide all data available for a particular airport with any clarity without causing a clutter situation on the sectional chart."

Rec., vol. I, at 27. For all that plaintiffs have asserted, they seek redress for the IACC's decision to not require more detailed information on aeronautical charts such as the...

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