Holbrook v. United States

• Decision Date: 12 March 2012
• Docket Number: No. 10–2355.,10–2355.
• Citation: 673 F.3d 341
• Parties: Michael HOLBROOK, MARPAT Aviation, individually and as lessee of SUD Aviation—SNIAS (Aerospatiale) Alouette II Model SE–3130 Helicopter Serial Number 1133, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

673 F.3d 341

Michael HOLBROOK, MARPAT Aviation, individually and as lessee of SUD Aviation—SNIAS (Aerospatiale) Alouette II Model SE–3130 Helicopter Serial Number 1133, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 10–2355.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 25, 2012.Decided: March 12, 2012.

ARGUED: Mary Schiavo, Motley & Rice, LLP, Mt. Pleasant, South Carolina, for Appellant. Barbara B. O'Malley, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Tony West, Assistant Attorney General, United States Department of Justice, Washington, D.C.; Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Judge SHEDD joined.

OPINION

WILKINSON, Circuit Judge:

The Federal Aviation Administration (“FAA”) is responsible for regulating aircraft safety, and does so in part through its system of aircraft certification. This case arises from the FAA's decision to suspend the airworthiness certification of a helicopter leased by appellant Michael Holbrook for his flight instruction business. Holbrook brought suit against the United States under the Federal Tort Claims Act (“FTCA”), alleging that he suffered financial harm as a result of the FAA's negligence in first issuing an airworthiness certificate to the helicopter. The district court dismissed the complaint, finding that the FAA inspector's original certification of the aircraft fell under the discretionary function exception to the FTCA. We affirm.

I.

The present dispute has its origins in the technical area of the FAA's aircraft certification system. Congress has delegated broad authority to the FAA to “promote safe flight of civil aircraft in air commerce” by “prescribing minimum standards required in the interest of safety” for aircraft design and inspection. 49 U.S.C. § 44701(a). To that end, the FAA has promulgated regulations that require a multistep certification process for aircraft models and individual aircraft. See United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 804–07, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984) (describing the stages of certification). As relevant here, before introducing a new type of aircraft, a manufacturer “must first obtain FAA approval of the plane's basic design in the form of a type certificate.” Id. at 805, 104 S.Ct. 2755; see 49 U.S.C. § 44704(a). Once produced, an individual aircraft must next receive an airworthiness certificate from the FAA before it may operate in air commerce. See id. § 44711(a). The FAA has authority to reinspect or reexamine a civil aircraft at any time and “may issue an order amending, modifying, suspending, or revoking” a certificate in the interest of the public and air safety. Id. § 44709(a)-(b).

The type certification process places significant responsibility on the aircraft manufacturer, which must test and analyze new aircraft designs itself. See, e.g., 14 C.F.R. §§ 21.33, 21.35. The manufacturer must then submit design documentation, test reports, and engineering computations to demonstrate that the aircraft satisfies the applicable FAA regulations. See id. § 21.21. The FAA may issue a type certificate once it has reviewed the manufacturer's submitted materials for compliance with FAA regulations and concluded that the proposed design meets minimum safety standards. See 49 U.S.C. § 44704(a).

The relevant aircraft in this case is an Alouette Model II SE–3130 Helicopter, Serial Number 1133, Registration N31330 (“the helicopter”), which was manufactured in France in 1958. FAA regulation provides an abbreviated type certification process for aircraft, such as the subject helicopter, manufactured in certain foreign countries. See 14 C.F.R. § 21.29. Under § 21.29, if the FAA has a bilateral agreement with the country of origin, the FAA may rely on the foreign country's certification that the aircraft has been examined, tested, and determined to meet the applicable safety requirements. Id. The subject helicopter was type certificated in 1958 in accordance with § 21.29 and issued a No 7H1 type certificate data sheet.

In 2000, the helicopter was imported into the United States and the owner applied for an airworthiness certificate (“AC”), which the FAA may issue “when the Administrator finds that the aircraft conforms to its type certificate and, after inspection, is in condition for safe operation.” 49 U.S.C. § 44704(d). The FAA has promulgated procedural requirements for the issuance of ACs. See 14 C.F.R. §§ 21.171–21.199. At the time the helicopter was issued an AC in 2001, 14 C.F.R. § 21.183 had four subsections which provided procedures governing the issuance of a standard AC for aircrafts of different type or origin. Id. § 21.183 (2001). Section 21.183(c), entitled “Import aircraft,” provided that:

An applicant for a standard airworthiness certificate for an import aircraft type certificated in accordance with § 21.29 is entitled to an airworthiness certificate if the country in which the aircraft was manufactured certifies, and the Administrator finds, that the aircraft conforms to the type design and is in condition for safe operation.

14 C.F.R. § 21.183(c) (2001). Subsection (d) of § 21.183, entitled “Other aircraft,” prescribed certification requirements for aircraft “not covered by paragraphs (a) through (c) of this section.” Id. § 21.183(d) (2001).^* In addition, FAA Order 8130.2D, which “establishes procedures for accomplishing original and recurrent airworthiness certification of aircraft,” provided additional guidance to FAA employees for the issuance of ACs. See Aviation Admin., Order 8130.2D, Airworthiness Certification of Aircraft and Related Products (1999).

The AC application for the subject helicopter indicated that the aircraft was imported and included an “Attestation” from the French Civil Aviation Authority, which stated that the helicopter “was manufactured by Sud Aviation on 1958 under the surveillance of the French military Authority.” The Attestation explained, however, that “we have not inspected ourselves this helicopter[ ] but we can certify that its design was compliant with ... FAA type certificate no 7H1.” FAA safety inspector Ralph Chadburn evaluated the AC application under 14 C.F.R. § 21.183(c). After consulting with his superiors, he determined that the Attestation satisfied the foreign certification requirement and issued an AC for the helicopter in 2001. He later explained that he reviewed “the aircraft's maintenance and operational records, its inspection history and its certification history” and that he “relied on applicable statutes, regulations and FAA guidance, including FAA Order 8130.2D.”

MARPAT Aviation, LLC, Holbrook's helicopter flight instruction business, leased the certificated helicopter from its present owner, Mike's Contracting, LLC in 2004. In late 2006, the FAA initiated a review of all Alouette helicopters, including the helicopter leased by MARPAT, due to concern that the helicopters, originally designed for use by the military, were not intended for civil certification. The FAA reexamined the Attestation submitted with the helicopter's AC application and deemed it insufficient to establish eligibility for certification. On August 14, 2007, Holbrook received an Emergency Order of Suspension from the FAA. The order suspended the AC of the helicopter, preventing the aircraft's use by MARPAT.

Holbrook brought suit against the United States under the FTCA, alleging that the FAA inspector erroneously issued an AC to the subject helicopter by misapplying mandatory FAA regulations, which caused him financial harm when the AC was suspended. The district court granted the United States' motion to dismiss the complaint under Rule 12(b)(1) for lack of subject matter jurisdiction, finding that the inspector's decision to issue an AC was an exercise of discretion excepted from the FTCA's limited waiver of governmental immunity. Holbrook v. United States, 749 F.Supp.2d 446 (S.D.W.Va.2010). This appeal followed and we review the district court's dismissal of the complaint de novo. See Indemnity Ins. Co. v. United States, 569 F.3d 175, 179 (4th Cir.2009).

II.

A.

The statutory framework of this case is well settled and we shall review it only briefly. The Federal Tort Claims Act waives the sovereign immunity of the United States with respect to civil actions in federal court for injuries “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b). Where immunity is waived, the government may be held liable in tort “in the same manner and to the same extent as a private individual under like circumstances.” Id. § 2674. But the FTCA's grant of federal jurisdiction is qualified by a number of exceptions. See id. § 2680. As relevant here, the waiver of immunity does not apply to “[a]ny claim ... 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.” Id. § 2680(a). Where this discretionary function exception applies, the courts lack federal subject matter jurisdiction. See Williams v. United States, 50 F.3d 299, 304–05 (4th Cir.1995).

The discretionary function exception “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.” Varig Airlines, 467 U.S. at 808, 104 S.Ct. 2755. It protects the government “from being hobbled in the discharge of its policy-driven duties by tort suits,” Baum v. United States, 986 F.2d 716, 720 (4th Cir.1993), and from ...