Gatx/Airlog Co. v. U.S.

• Decision Date: 30 August 1999
• Docket Number: No. C98-1029L.,C98-1029L.
• Citation: 79 F.Supp.2d 1208
• Parties: GATX/AIRLOG COMPANY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Washington

79 F.Supp.2d 1208

GATX/AIRLOG COMPANY, Plaintiff, v. UNITED STATES of America, Defendant.

No. C98-1029L.

United States District Court, W.D. Washington, at Seattle.

August 30, 1999.

Stuart R. Dunwoody, Davis Wright Tremaine LLP, Seattle, WA.

Stephen C. Neal, Scott D. Devereaux, Margaret C. Livnah, Cooley Godward, LLP, Palo Alto, CA.

Kathleen A. Howard, Cooley Godward Castro, San Francisco, CA.

Philip H. Lynch, U.S. Atty's Office, Tacoma, WA.

Jill Dahlmann Rosa, U.S. Dept. of Justice, Civ. Div., Torts Branch, Washington, DC.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

LASNIK, District Judge.

Defendant seeks an order dismissing plaintiff's complaint¹ for lack of subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1), 12(b)(6), and 12(h)(3), or, in the alternative, granting summary judgment pursuant to Fed.R.Civ.P. 56.

Plaintiff has alleged that the Federal Aviation Administration ("FAA") was negligent in approving a particular design methodology for use in modifying Boeing 747 aircraft and in approving the design subsequently developed by plaintiff's contractor. Complaint at ¶ 46.² Defendant argues that the Court lacks jurisdiction over plaintiff's claims because: (1) the United States has not waived its sovereign immunity for claims arising out of discretionary acts; (2) the Court of Appeals has exclusive jurisdiction to review certification and enforcement decisions; (3) the United States could not be held liable under applicable state law, which is a prerequisite to a Federal Tort Claims Act action; and (4) the United States has not waived its sovereign immunity for claims arising out of misrepresentations or interference with contractual rights.

FACTS

Plaintiff alleges that the FAA negligently approved the use of the "equivalent strength or better" method of showing that the proposed conversion of Boeing 747 passenger aircraft to cargo freighters would comply with the engineering requirements of the Federal Aviation Regulations ("FARs").³ The "equivalent strength or better" methodology involves the comparison of aircraft structural strength on a component-by-component or section-by-section basis, the theory being that if the individual components or sections of the proposed design are as strong as or stronger than a previously-approved design, then the proposed design will have substantially the same, if not better, ability to withstand the forces and stresses of flying. The choice of the proper design method was very important to plaintiff's contractor, Hayes International ("Hayes"), and was one of the first subjects discussed with the FAA when the possibility of the freighter conversion arose in 1985. Complaint at ¶ 9. The comparative analysis approved by the FAA was not the only available option: an "original loads" analysis, requiring individualized showings of the forces actually applied to the proposed design under various flight scenarios, was another, more costly, alternative considered by Hayes and the agency. Complaint at ¶¶ 10-14.

In 1988, Hayes submitted, and the FAA accepted for review, engineering data regarding the freighter conversion, all of which was based on the "equivalent strength or better" analysis that the FAA had approved in 1986 and again in 1987. Complaint at ¶ 24. Based on that data, the FAA issued two Supplemental Type Certificates ("STCs") approving the design of the cargo door and the cargo compartment. The STCs were assigned by Hayes to plaintiff, which thereafter converted and sold ten aircraft based on the approved designs. Complaint at ¶¶ 24 and 25.

After reviewing in-service data generated on the converted aircraft, however, the FAA determined that there were physical design deficiencies in the converted aircraft which required a reduction in the maximum allowable payload the converted freighters could carry. An Airworthiness Directive ("AD") to that effect was issued in January 1996. Complaint at ¶ 26. While plaintiff was apparently willing to make structural changes to remedy the perceived problems, the FAA found that the engineering methodology used to obtain the STCs in 1988, namely the "equivalent strength or better" analysis, had not generated enough data regarding how the forces applied to the freighter during flight are distributed within the structural elements of the aircraft for the FAA to identify specific remedial possibilities. Complaint at ¶¶ 29 and 12. Although plaintiff is not challenging the validity or accuracy of the AD in this litigation, it alleges, and defendant does not deny for purposes of this motion, that the FAA's approval of the use of the comparative analysis and its acceptance and review of data based on that analysis were errors arising from the FAA's negligence.

DISCUSSION

I. APPLICABILITY OF THE DISCRETIONARY FUNCTION EXCEPTION

"The United States can be sued only to the extent that it has waived its sovereign immunity." West v. United States, 830 F.2d 1044, 1046 (9th Cir.1987) (quoting United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976)), cert. denied, 485 U.S. 1007, 108 S.Ct. 1470, 99 L.Ed.2d 699 (1988). The burden of showing a waiver of immunity lies with the party seeking to sue the federal government. Plaintiff has stated a claim for negligence under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), through which Congress expressly abrogated the United States' immunity in certain circumstances. Defendant argues that plaintiff's claims fall within the discretionary function exception to the FTCA's waiver: defendant bears the burden of showing that such an exception applies. See Prescott v. United States, 973 F.2d 696, 702 (9th Cir.1992).

Defendant asserts that the FAA's approval of the "equivalent strength or better" design analysis and its acceptance and review of the data produced by Hayes based on that analytical method are discretionary actions exempted from the FTCA's waiver of immunity under the discretionary function exception. The discretionary function exception provides that the sovereign's immunity is not waived 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 of 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 by abused.

28 U.S.C. § 2680(a).

To determine whether the government's alleged conduct was discretionary, the Court evaluates the nature of the conduct itself. See, e.g., Gasho v. United States, 39 F.3d 1420, 1435 (9th Cir.1994), cert. denied, 515 U.S. 1144, 115 S.Ct. 2582, 132 L.Ed.2d 831 (1995). The discretionary function exception will apply only if (1) the federal agency or employees had a choice in making the decision or taking the action of which plaintiff complains and (2) the choice involved social, economic, and/or political policy considerations. See, e.g., Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1025 (9th Cir.1989) (citing Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). As noted above, plaintiff has challenged two of the FAA's decisions or actions in connection with the issuance of the 1988 STCs. Both of those decisions are analyzed below to determine the applicability of the discretionary function exception.

A. Use of "Equivalent Strength or Better" Methodology

Plaintiff asserts that the agency's approval of the "equivalent strength or better" analysis was negligent. Plaintiff has not identified, and the Court cannot find, any regulation or statute that specifically governed this particular decision or in any way limited the FAA's discretion in choosing an appropriate engineering methodology. Unlike in Starrett v. United States, 847 F.2d 539 (9th Cir.1988), there was no Executive Order, statute, or regulation defining the appropriate analysis to be applied in these circumstances. The FAA is given both the task of ensuring that proposed designs comply with the FARs and discretion in accomplishing that task. The FAA's decision to use a comparative analysis was, therefore, a matter of choice or judgment, satisfying the first prong of the discretionary function analysis.

Plaintiff argues that, even if there were an element of choice in the FAA's decision, it was a purely objective decision made on engineering and safety considerations, not social, economic, or political policy considerations. The Court disagrees. First, there is a presumption that regulators who are given discretion in carrying out their regulatory or statutory mandates are acting in furtherance of the policies underlying those regulations or statutes. See United States v. Gaubert, 499 U.S. 315, 324, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). The argument that safety or engineering considerations automatically preclude considerations of policy has already been rejected by the Ninth Circuit (see West, 830 F.2d at 1047-48), and plaintiff has not overcome the initial presumption that FAA's choice of a particular engineering methodology involved policy judgments.

In addition, "the purpose of the discretionary function exception is 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." Foster v. United States, 923 F.2d 765, 769 (9th Cir. 1991) (quotations omitted). Allowing plaintiff's claim to continue would work the exact harm Congress was trying to prevent through the enactment of the discretionary function exception. The FAA's decision to authorize the use of less onerous, costly, and time-consuming engineering methodologies to prove compliance with safety regulations in this case is part of the overall scheme through which the FAA attempts to promote air safety. A judgment of liability...