931 F.2d 271 (4th Cir. 1991), 90-3014, Tiffany v. United States

Docket Nº:90-3014, 90-3022.
Citation:931 F.2d 271
Party Name:Patsy O. TIFFANY, Administratrix and Personal Representative of the Estate of Henry H. Tiffany, Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant & Third Party Plaintiff-Appellant, v. BRANDON LADD CORPORATION, Third Party Defendant-Appellee. Patsy O. TIFFANY, Administratrix and Personal Representative of the Estate of Henry H. Ti
Case Date:April 30, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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931 F.2d 271 (4th Cir. 1991)

Patsy O. TIFFANY, Administratrix and Personal Representative

of the Estate of Henry H. Tiffany, Deceased,

Plaintiff-Appellee,

v.

UNITED STATES of America, Defendant & Third Party Plaintiff-Appellant,

v.

BRANDON LADD CORPORATION, Third Party Defendant-Appellee.

Patsy O. TIFFANY, Administratrix and Personal Representative

of the Estate of Henry H. Tiffany, Deceased,

Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant & Third Party Plaintiff-Appellee,

v.

BRANDON LADD CORPORATION, Third Party Defendant-Appellee.

Nos. 90-3014, 90-3022.

United States Court of Appeals, Fourth Circuit

April 30, 1991

Argued Jan. 7, 1991.

Page 272

Thomas Barton Almy, Sr. Aviation Counsel, Civ. Div., U.S. Dept. of Justice, Washington, D.C., argued (Stuart M. Gerson, Asst. Atty. Gen., Civ. Div., U.S. Dept. of Justice, Washington, D.C., John P. Alderman, U.S. Atty., E. Montgomery Tucker, Asst. U.S. Atty., Roanoke, Va., of counsel), for defendant and third party plaintiff-appellant U.S.

Wilton Jeremain Smith, Gilman, Olson & Pangia, Washington, D.C., argued (Michael J. Pangia, Gilman, Olson & Pangia, Washington, D.C., Frank Anthony Mika, Waynesboro, Va., on brief), for plaintiff-appellee Tiffany.

Wilton Jeremain Smith, Gilman, Olson & Pangia, Washington, D.C., argued (John J. Tigert, VI, Kathryn A. Ledig, Taft, Stettinius & Hollister, Washington, D.C., on brief), for third party defendant-appellee Brandon Ladd Corp.

Before WILKINSON and WILKINS, Circuit Judges, and ELLIS, District Judge for the Eastern District of Virginia, sitting by designation.

WILKINSON, Circuit Judge:

Henry Tiffany and six passengers were killed following a midair collision between their Beech Baron airplane and a United States F-4C fighter jet. Tiffany had failed to activate a flight plan and thus had entered an air defense zone off the eastern coast of the United States as an unidentified and potentially hostile aircraft. Military authorities had dispatched two fighter jets to identify visually the unknown plane. The collision occurred in poor weather conditions seconds after one of the jets instituted a sharp left bank to avoid Tiffany's Baron. Tiffany's widow brought suit against the United States under the Death on the High Seas Act, 46 U.S.C.App. Secs. 761-68, alleging that the military pilot and ground control had been negligent in their conduct of the intercept. The district court, 726 F.Supp. 129 returned a verdict in favor of Tiffany. Because to entertain the allegations of negligence in this case would lead us to violate separation of powers principles which inform the discretionary function exceptions to the Federal Tort Claims Act and the Suits in Admiralty Act, we reverse the judgment.

I.

Henry Tiffany, a licensed civilian pilot, planned to fly his small Beech Baron airplane with six passengers from Nassau, Bahamas to Norfolk, Virginia on January 3, 1983. Although Tiffany was aware that the United States Customs Service required him to pass through Customs in Florida, see 19 C.F.R. Sec. 6.14 (1983) (in 47 Fed.Reg. 12,621-22 (1982)), he nevertheless attempted to file with the Bahamian Flight Service Station a flight plan for direct travel to Wilmington, North Carolina instead. The Bahamian authorities refused to accept Tiffany's initial flight plan and persuaded Tiffany to modify the plan to include a stop at Fort Pierce, Florida in order to satisfy the Customs requirement.

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Filed flight plans are vital for all planes traveling into United States air zones. This is true not only because of Customs regulations but because of our system of national defense as well. Extending hundreds of miles into the Atlantic Ocean from the eastern coast of the United States is an Air Defense Identification Zone (ADIZ) established by the North American Air Defense Command (NORAD), an agent of the Department of Defense. NORAD is a joint military command composed of American and Canadian forces which have responsibility for maintaining the aerial defense of the North American continent. Its peacetime mission is "to detect and identify any unusual air activity within the perimeter areas of the North American Continent which might be prejudicial to the national interests, or indicate an imminent air attack against vital targets in the United States and Canada, and to restrict violations of sovereign airspace." NORAD Regulation 55-14 p 2.a (May 5, 1980). To achieve these goals, NORAD must identify "[a]ll airborne objects detected entering or operating within an identification zone." Id. p 5.a.

Both to facilitate that task and to protect civilian aircraft, Federal Aviation Regulations require all aircraft intending to penetrate an ADIZ to first file a flight plan. 14 C.F.R. Sec. 99.11 (1983). If NORAD radar shows an aircraft in the ADIZ and that aircraft correlates with a filed flight plan, then NORAD can classify the plane as "friendly" and take no further steps towards verifying its identity. If the observed aircraft does not correlate with a filed flight plan, then NORAD must investigate further. This process is often accomplished by launching armed fighter planes to observe and visually identify the unknown aircraft. Relevant information may also be collected from a number of sources, including Customs officials, adjacent air defense control facilities, other aircraft in the vicinity of the unknown, and civilian Air Traffic Control facilities, which may possess late flight plan or radar information.

NORAD has two minutes from the time it first detects an aircraft in an ADIZ to classify it as "friendly." NORAD Regulation 55-14 p 5.c. After that time it must classify the aircraft as "unknown" and "continuously pursue[ ]" all methods of identification. Id. p 6.b.3. No classification is ever permanent; even a plane initially recognized as "friendly" can be reclassified if it creates "suspicion as to its intent by reason of course, speed, altitude, radio/telephone procedures, maneuvers, flight size ... or other abnormality." Id. pp 5.c.1, 6.b.2. In 1982, the year before Tiffany's crash, the 20th NORAD Region, operating out of Fort Lee Air Force Station near Petersburg, Virginia, encountered two hundred thirty-eight "unknown" planes. Interceptor aircraft were launched in one hundred ninety-two instances and visually identified sixty-six planes. The remainder were reclassified "friendly" on the basis of information received from other military or civilian facilities. Also in 1982, the 20th NORAD Region intercepted ten Soviet bloc aircraft operating off the east coast between Florida and Virginia.

Despite the tremendous practical importance as well as the legal necessity of filing accurate flight plans, Tiffany left Nassau slightly before 2:00 p.m. on January 3 without ever activating his modified flight plan. Flight plans that have been filed but not activated within one hour of takeoff are considered void. Thus, Tiffany was flying without an official flight plan and without any verified destination. Apparently he had decided against complying with Customs regulations and instead chosen to follow his original plan to fly directly north from Nassau. In addition, although other federal regulations required that he contact FAA traffic controllers in the United States before entering an ADIZ, 14 C.F.R. Sec. 99.21 (1983), Tiffany failed to establish radio contact with any FAA Air Traffic Control facility until 4:31 p.m., when he was well within the ADIZ--by his estimate a mere fifty miles off the North Carolina coast.

A few minutes after 4:00 p.m., the 20th NORAD Region's radar system in Fort Lee, Virginia (FERTILE) detected an aircraft within the ADIZ that was heading

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north towards the North Carolina coast. The plane did not correlate with any filed flight plan and NORAD consequently classified it as "unknown." Two F-4 fighter planes were launched from an Air Force base in North Carolina to determine visually the type of the unidentified aircraft. The military planes reported "popeye" conditions at altitudes below thirteen to fourteen thousand feet, meaning that visibility was extremely restricted because of clouds. One of the F-4's attempted to make a visual identification pass of the unknown plane but its angle of approach was too steep and the pass was canceled.

Meanwhile, Tiffany had established radio contact at 4:31 p.m. with Federal Aviation Administration (FAA) air traffic controllers in Leesburg, Virginia. Although his Baron did not yet appear on the FAA radar system, Tiffany informed the controllers that he was approximately fifty miles south of New Bern, North Carolina and flying at an altitude of 9500 feet. At 4:37 p.m., however, he corrected his position and indicated he was actually fifty-six miles from Wilmington, North Carolina, a city located seventy-five miles southwest of New Bern. He also gave the air traffic controllers the make and model of his aircraft, information that NORAD would require before changing the plane's status to "friendly" based on FAA communications.

Both the FAA and Tiffany, as civilian entities, operated on VHF radio frequencies, while the military operated on UHF frequencies. Thus, although Tiffany could communicate with the FAA, and the F-4's could communicate with NORAD ground control (FERTILE), the Baron and the military aircraft could not contact each other. Exchanges between the military and civilian systems could occur only through separate ground circuits. Information that Tiffany relayed to FAA controllers thus had to pass through numerous hands to reach decision makers at FERTILE, a process which incorporated some delay. FERTILE control was in contact with the FAA throughout the intercept process.

At 4:41 p.m., a few minutes after...

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