Heller v. U.S., 85-3847
| Decision Date | 13 November 1986 |
| Docket Number | No. 85-3847,85-3847 |
| Citation | 803 F.2d 1558 |
| Parties | Richard W. HELLER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Mark T. McDermott, Washington, D.C., Arvind K. Lal, Arthur F. McCormick, South Miami, Fla., for plaintiff-appellant.
Dennis I. Moore, Asst. U.S. Atty., Tampa, Fla., Gary Allen, U.S. Dept. of Justice, Torts Branch, Civ. Div., Washington, D.C., Walter Andrew Welch, Jr., Federal Air Surgeon's Office, Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before JOHNSON and ANDERSON, Circuit Judges, and GARZA *, Senior Circuit Judge.
Richard W. Heller appeals from an order of the district court dismissing his complaint on the ground that the Federal Aviation Administration's ("FAA") denial of a first-class medical certificate was a discretionary function exempted from liability under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. Sec. 2680(a) (West 1965). Heller argues that the government's negligent failure to consider the 1968 electrocardiogram ("EKG") in his file and the government's negligent application of the medical standard in 14 C.F.R. Sec. 67.13(e)(1)(i) (1986) do not fall within the scope of the discretionary function exception. We disagree. We affirm.
The Federal Aviation Act, 49 U.S.C.A. Secs. 1301-1542 (West 1976 & Supp.1986), was enacted to promote safety in air commerce. See, e.g., 49 U.S.C.A. Sec. 1421(a) (West Supp.1986); 1 Delta Air Lines v United States, 490 F.Supp. 907, 909 (N.D.Ga.1980). In order to achieve this goal, the act provides that "[i]f the Secretary of Transportation finds, after investigation, that such person possesses proper qualifications for, and is physically able to perform the duties pertaining to, the position for which the airman certificate is sought, he shall issue such certificate, containing such terms, conditions, and limitations as to duration thereof, periodic or special examinations, tests of physical fitness, and other matters as the Secretary of Transportation may determine to be necessary to assure safety in air commerce." 49 U.S.C.A. Sec. 1422(b)(1) (West Supp.1986). In discharging this duty, the Administrator requires a pilot to obtain a medical certificate as a condition to the issuance of an airman's certificate which also certifies the pilot's aviation skills. See 14 C.F.R. Sec. 61.3(c) (1986).
The Administrator has delegated to the Federal Air Surgeon the authority to "[e]xamine applicants for and holders of medical certificates for compliance with applicable medical standards," and to "[i]ssue, renew, or deny medical certificates to applicants and holders based upon compliance or noncompliance with applicable medical standards." See id. Sec. 67.25(a). Subject to certain restrictions, this authority has also been delegated to authorized representatives of the Federal Air Surgeon within the FAA and to Aviation Medical Examiners ("AME"), private physicians who have been designated by the Federal Air Surgeon. See id. Secs. 67.23, 67.25(a), 183.21.
The FAA issues medical certificates in three classes. See id. Secs. 67.13, 67.15, 67.17. A captain of a commercial aircraft must have a first-class medical certificate, and a co-pilot or flight engineer must have at least a second-class certificate. 2 See id. Secs. 61.3(c), 63.3(a). A third-class medical certificate will allow an airman to fly only as a private pilot. See id. Sec. 61.103(c).
In most cases, the applicant for a medical certificate begins the process with an examination by an AME. See id. Sec. 67.23. The AME examines the applicant's medical history and his current condition to determine whether he meets the medical standards set forth in the regulations. If the AME denies the certificate, the applicant has thirty days to petition the Federal Air Surgeon for reconsideration. See id. Sec. 67.27(a). A denial by the Federal Air Surgeon or by certain other FAA officials is considered a denial by the Administrator, see id. Sec. 67.27(b), and is appealable to the National Transportation Safety Board ("NTSB"), see 49 U.S.C.A. Sec. 1422(b)(1) (West Supp.1986).
An applicant who fails to meet the medical standards may petition the Federal Air Surgeon for a "special issue" certificate. 3 See 14 C.F.R. Sec. 67.19 (1986). The Federal Air Surgeon has the discretion to issue a medical certificate to "an applicant who does not meet the applicable provisions of Sec. 67.13, Sec. 67.15, or Sec. 67.17 if the applicant shows to the satisfaction of the Federal Air Surgeon that the duties authorized by the class of medical certificate can be performed without endangering air commerce during the period in which the certificate would be in force." Id. Sec. 67.19(a). The Federal Air Surgeon also has the discretion to offer a special flight, test, or evaluation to determine whether the applicant can perform his duties without endangering safety in air commerce. See id. Sec. 67.19(a).
Heller is a professional pilot with a commercial airline. In early 1972, he held a first-class medical certificate issued on December 23, 1971. In January 1972, he experienced chest discomfort and was admitted to a hospital for testing. Based on this testing, which included an EKG, Dr. Cheng Yee Teng, an examining physician, diagnosed Heller as having had a myocardial infarction. 4
Pursuant to 14 C.F.R. Sec. 61.53 (1986), Heller had Dr. Teng notify the AME of his condition, and on February 8, Dr. Teng provided the AME with a medical report. Based upon that report, the AME, acting under the authority of 14 C.F.R. Sec. 67.25(a) (1986), withdrew the issuance of the medical certificate in accordance with 14 C.F.R. Sec. 67.13(a) (1986), since Heller had an "established medical history or clinical diagnosis of ... myocardial infarction" prohibited by 14 C.F.R. Sec. 67.13(e)(1) (1986). As a result, Heller could not be employed as a commercial airline pilot.
Heller applied for recertification on January 10, 1973 and February 4, 1974, but the AME denied his requests for recertification. On October 8, 1974, August 29, 1975, and August 3, 1976, Heller petitioned for an exemption from 14 C.F.R. Secs. 67.13(e)(1)(i) (1986). The Federal Air Surgeon, however, denied these petitions.
On January 30, 1980, the FAA accepted a letter from Dr. Richard L. Masters as a petition on Heller's behalf for an exemption from Part 67 of the Federal Aviation Regulations. On April 22, 1980, the Federal Air Surgeon found Heller to be qualified for a first-class airman medical certificate and therefore issued such a certificate.
In July 1982, Heller filed a complaint under the FTCA in the United States District Court for the Middle District of Florida, seeking damages for the FAA's negligent denial of an airman's medical certificate. He alleged that the withdrawal of his medical certificate was caused by the "negligent investigation, data collection, data production, and diagnostic procedures and activities of the agents and employees of the Federal Aviation Administration." Record on Appeal, vol. 1, doc. 1 at 3. The government moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) on the ground that the district court lacked subject matter jurisdiction since the claim was barred by the discretionary function exception of the FTCA, 28 U.S.C.A. Sec. 2680(a) (West 1965). Relying on United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), the district court dismissed the complaint because the implementation of the FAA's medical certification program is a discretionary activity protected by Sec. 2680(a):
The FAA's implementation of a mechanism for medical certification ... is plainly a discretionary activity of the nature and quality protected by Sec. 2680(a).... Medical licensing authority of the FAA is clearly a role where the government is acting "as regulator of the conduct of private individuals." To hold the entire FAA medical certification process as not excepted would handicap efficient government operations. Furthermore, a decision to not except such medical determinations by the surgeon would be to place these determinations in constant jeopardy to potential tort suits. The safer policy, and thereby the better policy, is to err in favor of grounding a pilot of suspect qualification, thereby fulfilling a greater responsibility to the public at large, than to the individual pilot. Furthermore, the individual acts and decisions in issuing and suspending, or reissuing, a medical certificate are discretionary conducts of a policy and decision making nature intended to be excepted by Sec. 2680(a).
Heller v. United States, 620 F.Supp. 270, 271-72 (M.D.Fla.1985) (citations omitted). This appeal ensued.
Heller raises two contentions on appeal: (1) that the FAA's failure to consult the 1968 EKG was a nondiscretionary activity, and thus not within the scope of the discretionary function exception; and (2) that since the denial of certification was based solely on the FAA's negligent application of the medical standard contained in 14 C.F.R. Sec. 67.13(e)(1)(i) (1986), and since the application of this standard did not require the FAA to balance competing policy concerns, his claim is not barred by the discretionary function exception. 5 Since this case involves an appeal from an order dismissing the action for lack of subject matter jurisdiction, we accept as true the factual allegations in Heller's complaint. See, e.g., Gibson v. Firestone, 741 F.2d 1268, 1270 (11th Cir.1984), cert. denied, 469 U.S. 1229, 105 S.Ct. 1230, 84 L.Ed.2d 367 (1985); Eaton v. Dorchester, 692 F.2d 727, 731 (11th Cir.1982). For example, we accept as true...
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