Charlima, Inc. v. U.S.

Citation873 F.2d 1078
Decision Date25 April 1989
Docket NumberNo. 88-1446,88-1446
PartiesCHARLIMA, INC., a Nebraska Corporation, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Thomas J. Monaghan, Omaha, Neb., for appellant.

Paul W. Madgett, Asst. U.S. Atty., Omaha, Neb., for appellee.

Before ARNOLD and JOHN R. GIBSON, Circuit Judges, and ROSENBAUM, * District Judge.

JOHN R. GIBSON, Circuit Judge.

Charlima, Inc. appeals from an adverse summary judgment entered on its claim against the United States under the Federal Tort Claims Act. Charlima purchased an airplane requiring an airworthiness inspection, which was performed by J.L. Williams, a designated airworthiness representative. Charlima claimed that Williams acted as a federal employee and was negligent in failing to discover a damaged wing spar which caused the airworthiness certificate to be withdrawn pending repairs. The district court 1 determined that the United States was immune from tort liability under the "discretionary function exception" to the Tort Claims Act. 28 U.S.C. Sec. 2680. We find it unnecessary to reach this issue, however, as we conclude from a review of the record before us that Williams was not a federal employee and that the government is therefore not liable under the Tort Claims Act. We affirm the district court's decision to grant the government's motion for summary judgment.

Charlima purchased a 1974 Beechcraft Duke aircraft for $102,000 from a seller in McKinney, Texas. The purchase agreement and federal law required an airworthiness inspection, which was performed by J.L. Williams. Williams was a designated airworthiness representative authorized to make such inspections under 14 C.F.R. Sec. 183.33 (1988). 2 Williams performed a physical inspection and approved the plane on November 10, 1984, and the Federal Aviation Administration issued a certificate of airworthiness. The plane was then flown from Texas to Omaha, Nebraska, where, on November 27, 1984, Charlima discovered that the plane's wing spars were damaged. Consequently, the FAA grounded the plane and withdrew its airworthiness certificate. After the plane was repaired, the FAA renewed its certificate on March 1, 1985.

Charlima brought this action alleging that Williams was negligent in failing to discover the damaged wing spars. Charlima claimed damages in the amount of $369,000 for the loss of use of the aircraft and the cost of placing it into airworthy condition.

The United States moved for summary judgment. In an accompanying affidavit, the FAA's Director of the Office of Airworthiness stated that the Office develops criteria setting forth minimum safety standards for aircraft manufacture and design, and determines qualification criteria and procedures for selecting designated representatives. The FAA is authorized to delegate responsibility to private individuals to act as representatives of the administrator. The Director stated that this delegation of FAA duties became necessary as a result of the proliferation of requests for certification services. The Director declared that in his opinion these delegated Representatives were not employees of the FAA. 3

The district court record reflects that Charlima, although given time to depose Williams, failed to file Williams' deposition or other factual materials in response to the government's summary judgment motion. The district court found it unnecessary to determine whether Williams was an employee of the federal government, but determined that the FAA was exercising its regulatory authority by delegating inspection duties to designated representatives. Applying the discretionary function exception, the district court granted the government's motion for summary judgment. Charlima contends on appeal that the government is liable under the Tort Claims Act, claiming that the discretionary function exception is inapplicable here and that Williams is a federal employee.

Summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In passing upon a motion for summary judgment, we must give the non-moving party the benefit of all reasonable inferences to be drawn from the underlying facts disclosed in the pleadings and affidavits. See Loudermill v. Dow Chem. Co., 863 F.2d 566, 571 (8th Cir.1988); Krause v. Perryman, 827 F.2d 346, 350 (8th Cir.1987). Once a motion for summary judgment is made, however, the nonmoving party cannot simply rest on the allegations of the complaint, but must come forward with specific facts to demonstrate a genuine issue for trial. See Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir.1984); Bouta v. American Fed'n of State, County & Mun. Employees, 746 F.2d 453, 454 (8th Cir.1984), cert. denied, 470 U.S. 1056, 105 S.Ct. 1764, 84 L.Ed.2d 825 (1985). Because Charlima did not respond to the government's motion for summary judgment with deposition or other factual materials, the district court was justified in relying solely on the evidence the government attached to its motion. 4 Based upon a review of the record before us, we are satisfied that the government's summary judgment motion was properly granted.

A suit may be brought against the United States under the Federal Tort Claims Act for damages arising from the injury or loss of property caused by the negligent or wrongful acts of any employee of the government while acting within the scope of employment. See 28 U.S.C. Sec. 1346(b). Williams' conduct can only subject the federal government to liability if he is found to be a federal employee. We are satisfied that this threshold issue of whether or not Williams was a federal employee must be decided adversely to Charlima. Thus, it is unnecessary for us to address the discretionary function exception upon which the district court based its decision. While the district court did not reach the employment issue, we may affirm on any ground supported by the record, Brown v. St. Louis Police Dept., 691 F.2d 393, 396 (8th Cir.1982), and the parties have briefed the issue before this court. Because Charlima filed no factual materials with the district court, our analysis is based on those materials attached to the motion filed by the government.

Under 28 U.S.C. Sec. 2671, an "employee of the government" includes "officers or employees of any federal agency ... and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." Section 2671, however, explicitly eliminates from government liability the acts of an independent contractor. 5

The crucial element in determining whether an individual may be considered a federal employee is the amount of control the federal government has over the physical performance of the individual. See United States v. Orleans, 425 U.S. 807, 814-15, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976); see also Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973). In Orleans, the Supreme Court held that a community action agency was not a federal instrumentality or agency and that its employees were not employees of the federal government for purposes of the Federal Tort Claims Act, because the day-to-day operations of the agency were not supervised by the federal government. Likewise, we conclude that the FAA does not control the day-to-day operations of designated airworthiness representatives. The FAA defined its duties concerning designated representatives as follows: "Review of all official forms initiated by a [designated representative]; random post-audit inspections of products which have been certificated by a [designated representative]; accompanying a [designated representative] during the inspection of a product to ensure that satisfactory techniques, methods and procedures are being used * * *." 48 Fed.Reg. 16176, 16177 (April 14, 1983). Thus, while the FAA acts generally as an overseer, it does not manage the details of a designated representative's work or supervise him in his daily investigative duties.

Moreover, according to the Director of the Office of Airworthiness for the FAA, the FAA has no customary contractual relationship with designated representatives, nor are they on the FAA payroll or otherwise compensated by the FAA. Instead, a designated representative is...

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