Redmon By and Through Redmon v. U.S.

• Decision Date: 03 June 1991
• Docket Number: No. 89-8050,89-8050
• Citation: 934 F.2d 1151
• Parties: Randall Wayne REDMON, By and Through his next friend and father, Ronald REDMON, and James Stanley Ewing and Scott Tyler Ewing, By and Through their next friend, Lewis Johnson, as Personal Representative for the Estate of Judith Ewing, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1151

934 F.2d 1151

Randall Wayne REDMON, By and Through his next friend and

father, Ronald REDMON, and James Stanley Ewing and Scott

Tyler Ewing, By and Through their next friend, Lewis

Johnson, as Personal Representative for the Estate of Judith

Ewing, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 89-8050.

United States Court of Appeals,

Tenth Circuit.

June 3, 1991.

Les Bowron (and Michael D. Zwickl of Beech Street Law Offices, Casper, Wyo., John R. Hursh of Hursh & Donohoue, Riverton, Wyoming, with him on the brief), for Plaintiffs-Appellants.

Wendy L. Rome, Trial Atty. (and Stuart E. Schiffer, Acting Asst. Atty. Gen., Department of Justice, Civ.Div., Washington, D.C., Richard A. Stacy, U.S. Atty., Cheyenne, Wyo., with her on the brief), for defendant-appellee.

Before BARRETT, BALDOCK and EBEL, Circuit Judges.

BALDOCK, Circuit Judge.

On September 2, 1985, Dr. Charles Ewing piloted his twin-engine Piper Seneca II aircraft into a severe thunderstorm over the Ogden, Utah, area. All on board, including Dr. Ewing's wife, Judith, were killed in the ensuing crash. Surviving family members, along with the personal representative of Judith Ewing's estate, brought this wrongful death action against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-80. Plaintiffs-appellants allege that the Federal Aviation Administration (FAA) and an FAA flight safety inspector were negligent in (1) certifying Dr. Ewing to fly multiengine aircraft in instrument flight conditions and (2) failing to initiate enforcement proceedings against Dr. Ewing. The district court dismissed the action for lack of subject matter jurisdiction, finding that plaintiffs' claims were barred by the "discretionary function" exception to the FTCA. 710 F.Supp. 765. See 28 U.S.C. Sec. 2680(a). Plaintiffs appeal, contending that the district court erred in applying the "discretionary function" exception and in dismissing the plaintiffs' complaint under Fed.R.Civ.P. 12(b)(1). We remand to the district court for entry of summary judgment in favor of the government. See Fed.R.Civ.P. 56(c) & 58.

I. Background

The Federal Aviation Act of 1958 empowers the FAA to issue "airman certificates specifying the capacity in which the holders thereof are authorized to serve as airmen...." 49 U.S.C.App. Sec. 1422(a). Pursuant to this authority, the FAA issues several types of certificates with accompanying ratings. See 14 C.F.R. Sec. 61.5 (1989). The ratings relevant in this case indicate the classes of aircraft and weather conditions in which a pilot is qualified to operate. On the date of the crash, Dr. Ewing held a private pilot certificate with a multiengine land airplane class rating and an instrument flight rules rating (IFR rating). See Id. This meant that the FAA, through written tests and practical flight tests administered by FAA flight examiners, had certified Dr. Ewing as qualified to operate a multiengine airplane with passengers over land in instrument flight conditions (IFR conditions). IFR weather conditions exist when the pilot cannot visually see and avoid other aircraft and cannot maintain visual contact with the ground; he must operate the aircraft by reference to flight instruments. See 14 C.F.R. Secs. 91.167-91.193 (1989) (instrument flight rules).

Dr. Ewing obtained his private pilot certificate on October 26, 1983. At that time, he was rated to operate single-engine aircraft in visual flight rules conditions only (VFR conditions). See 14 C.F.R. Secs. 91.151-91.159 (1989) (visual flight rules). On August 4, 1984, after passing the written test months earlier, Dr. Ewing passed the practical flight test for an IFR rating. Tom Rickert, an FAA flight examiner in Casper, Wyoming, administered the practical flight test. Soon thereafter, Dr. Ewing began training for a multiengine land aircraft class rating. At the time Dr. Ewing began his multiengine training, August 1984, a pilot with a single-engine IFR rating could carry his IFR rating to a multiengine rating without demonstrating IFR flight skills in a multiengine aircraft. On October 1, 1984, however, the FAA implemented a new policy which required all pilots seeking multiengine IFR ratings to demonstrate IFR flight skills. A grace period was allowed for pilots such as Dr. Ewing who had commenced multiengine training prior to the implementation of the new rule and who had applied for a multiengine rating before December 1, 1984.

In October 1984, Les Larsen, another FAA flight examiner, administered the multiengine practical flight test for Dr. Ewing. Larsen, unaware of the FAA grace period under the new rule, required Dr. Ewing to demonstrate IFR flight skills. Dr. Ewing, in spite of his IFR rating in single-engine aircraft, was unable to operate the multiengine aircraft successfully during this portion of the test. Consequently, Larsen issued a temporary airman certificate reading "multiengine airplane--VFR only." Larsen did not record this incident in Dr. Ewing's flight logbook.

In November Dr. Ewing asked Paul Hinman, an FAA aviation safety inspector, to give him a practical flight test to remove the "VFR-only" restriction from his multiengine rating. Hinman, upon discovering that Dr. Ewing was already IFR rated and was within the FAA's grace period, removed the restriction without administering a formal practical flight test. Although he did not administer a formal practical flight test, Hinman gave Dr. Ewing a courtesy check ride--a training exercise for the benefit of Dr. Ewing. Dr. Ewing, as a result of further training after the flight with Larsen, demonstrated instrument flight competence during this courtesy flight.

Over the following ten months, Dr. Ewing accumulated over 127 hours of flying time in his multiengine Piper Seneca II. Twenty-four of the hours were logged as instrument flight. On the day of the crash, September 2, 1985, Dr. Ewing received a weather briefing detailing severe thunderstorms in the Ogden, Utah area. Given this knowledge combined with his training, experience and testing, he filed an IFR flight plan directly through the thunderstorm area. Unfortunately he was unable to circumnavigate the thunderstorms. As a result, the airplane crashed and Dr. Ewing was killed along with all of his passengers.

Pursuant to the FTCA, plaintiffs assert two theories of liability: (1) Hinman's negligent removal of the "VFR-only" restriction from Dr. Ewing's multiengine rating was the proximate cause of the crash; or (2) Hinman's negligent failure to initiate an enforcement action against Dr. Ewing was the proximate cause of the crash.

II. Discretionary Function Exception

The FTCA provides a limited waiver of the sovereign immunity of the federal government. See 28 U.S.C. Sec. 1346(b). Excepted are "discretionary functions." Section 2680(a) provides that sovereign immunity will not be waived for claims "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." This exception to the FTCA "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." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984). In Varig the plaintiffs were seeking damages from the government for negligence arising out of the FAA's certification process for the design and manufacture of aircraft. The Court framed the discretionary function inquiry as "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." Id. at 813, 104 S.Ct. at 2764. In defining the "nature and quality" of protected governmental actions, the Court stated that Congress crafted the exception "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." Id. at 814, 104 S.Ct. at 2765.

The Varig Court held that the FAA's aircraft certification process was inherently discretionary in "nature and quality." Id. at 819, 104 S.Ct. at 2767. Congress had directed the Secretary of Transportation to promulgate airplane certification regulations and procedures which would promote air safety. Id. (citing 49 U.S.C.App. Sec. 1421(a)(1), (a)(3)(A)). In furthering Congress' goal of air safety, the Secretary was required to balance the safety goal against "the reality of finite agency resources" and promulgate reasonable regulations. Id. at 820, 104 S.Ct. at 2767. The Court held that this was precisely the type of regulatory activity which the discretionary function exception was designed to shield. Id. Futhermore, the Court held that the exception shielded "the acts of FAA employees in executing the [air certification compliance] program in accordance with agency directives...." Id.

In Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), the Court clarified the discretionary function exception, holding that it protects only government "conduct that involves the permissible exercise of policy judgment," not all regulatory acts. Id. at 538-39, 108 S.Ct. at 1959-60 (citing Varig, 467 U.S. at 820, 104 S.Ct. at 2767; Rayonier, Inc. v. United States, 352 U.S. 315, 318-19, 77 S.Ct. 374, 376-77, 1 L.Ed.2d 354 (1957); Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 124-125, 100 L.Ed. 48 (1955); Dalehite v. United States, 346 U.S. 15, 33-34, 73 S.Ct. 956, 966-967, 97 L.Ed. 1427 (1953)). The court found some of the claims in the Berkovitz case to be outside the exception because agency employees violated "specific...