West v. F.A.A., s. 85-2601

• Decision Date: 21 October 1987
• Docket Number: 85-2612,Nos. 85-2601,s. 85-2601
• Parties: Naomi Ruth WEST, et al., Plaintiffs-Appellants, v. FEDERAL AVIATION ADMINISTRATION; United States of America, Defendants- Appellees. Dulcy STEINLAUF, as Special administratrix of the Estate of James Steinlauf; Dulcy Steinlauf, individually and Malcolm Steinlauf, individually, Plaintiffs- Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1044

830 F.2d 1044

Naomi Ruth WEST, et al., Plaintiffs-Appellants, v. FEDERAL AVIATION ADMINISTRATION; United States of America,

Defendants- Appellees.

Dulcy STEINLAUF, as Special administratrix of the Estate of James Steinlauf; Dulcy Steinlauf, individually and Malcolm Steinlauf, individually, Plaintiffs- Appellants, v. UNITED STATES of America, Defendant-Appellee.

Nos. 85-2601, 85-2612.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 17, 1987.

Decided Oct. 21, 1987.

Marshall L. Foreman, San Diego, Cal., and Richard B. Goethals, Jr., San Francisco, Cal., for plaintiffs-appellants.

Barbara B. O'Malley, Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California (Sacramento).

Before CHOY, ALARCON and O'SCANNLAIN, Circuit Judges.

ALARCON, Circuit Judge:

I

Naomi Ruth West, her three children and Dulcy and Malcolm Steinlauf (hereinafter appellants) appeal the district court's order that it lacked subject matter jurisdiction to determine whether the acts of certain Federal Aviation Administration (FAA) employees were responsible for the crash of a Sierra Pacific airplane at Bishop Airport in California. Plaintiffs claim that the filing of this action was proper under the Federal Tort Claims Act (FTCA) and that the challenged actions of the FAA do not fall within the discretionary function exception to liability under the FTCA. We disagree and affirm.

A.

Bishop Airport lies in a deep funnel-shaped valley bounded on the west by the Sierra Nevada Mountains and on the east by the White Mountains. The terrain to the east of the airport begins to rise rapidly at about three and a half miles and to the west of the airport at about eight miles.

An FAA Procedures Specialist designed and approved a special instrument approach and departure procedure for Bishop Airport. The procedure was checked according to FAA regulations during a series of daytime flights.

The approved procedure required that the airplane climb after takeoff to 8,000 feet within two miles of the airport. This is done by flying a two mile arc circling around the airport while climbing. Because of the height and the proximity of the mountains to the airport, a requirement that a pilot climb 8,000 feet under instrument conditions would not provide enough margin for safety to meet FAA requirements. Consequently, the departure procedure the FAA specialist designed required pilots to maintain a two mile distance from the airport visually during the climb.

Pilots departing from Bishop Airport were required to follow the FAA departure procedure or an alternative approved by the Federal Air Route Traffic Control Center. Sierra Pacific's FAA approved Operations Specifications and Operations Manual required their pilots to use the FAA procedure.

B.

The accident occurred when a Sierra Pacific charter flight struck the slope of the White Mountains while attempting to depart from the Bishop Airport. The district court found that it was more probable than not that the cause of the accident was a lack of sufficient ground lighting, resulting in a visual phenomenon whereby pilots flying on a very black night could be misled into believing they were closer to the airport than they actually were.

Although FAA employees were aware of the visual phenomenon, no special steps were taken to determine whether there was a problem with the lighting at Bishop Airport or reliance on the two mile distance requirement on a dark night. The FAA did not make a night flight check of the visual climb aspect of the departure procedure.

C.

At the first trial in this matter, the district court found that the proximate cause of the accident was that FAA employees, acting in the scope and course of their employment, negligently failed to conduct night test flights of the visual climb reprocedure. ¹ The United States appealed. We remanded for reevaluation in light of the Supreme Court's decision of 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). On remand, the district court held that it was without subject matter jurisdiction to consider these claims because the conduct of the FAA employees fell within the discretionary function exception to the FTCA. Accordingly, the district court vacated the prior judgment and dismissed the action.

II

We review de novo a determination whether the discretionary function exception to the FTCA applies. Baker v. United States, 817 F.2d 560, 562 (9th Cir.1987).

"[T]he United States can be sued only to the extent that it has waived its [sovereign] immunity...." United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976); Baker, 817 F.2d at 562. The burden of showing an unequivocal waiver of immunity lies with the party bringing a cause of action against the federal government. Baker, 817 F.2d at 562. The FTCA provides for a limited waiver of the federal government's immunity. 28 U.S.C. Sec. 1346(b) (1982). ²

Several classes of tort claims are excepted from the FTCA's waiver of immunity. Baker, 817 F.2d at 562. 28 U.S.C. Sec. 2680(a) (1982) states in part that section 1346(b) does not apply to any 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."

The Supreme Court's decision in Varig is its most recent discussion of the discretionary function exception. In Varig, the Supreme Court held that the United States was not liable for any negligence on the part of the FAA in certifying the aircraft in question for commercial aviation use. 467 U.S. at 819-20, 104 S.Ct. at 2767-68. The Court held that the procedures chosen for certification were left to the discretion of the FAA and therefore were exempt from the FTCA under the discretionary function exception. Id.

In reaching its decision, the Court found two factors useful "in determining when the acts of a Government employee are protected from liability by Sec. 2680(a)." Id. at 813, 104 S.Ct. at 2764.

First, it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function applies in a given case.... [T]he basic inquiry concerning the application of the discretionary function exception is 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.

The second factor was based on a reading of the legislative history of section 2680(a). Baker, 817 F.2d at 564. The Supreme Court stated that the discretionary function exception included at the very least "the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals." Varig, 467 U.S. at 813-14, 104 S.Ct. at 2764 (footnote omitted). The Court found that Congress intended 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.

"Our post-Varig decisions have hewed closely to the ... Varig view[ ] of the discretionary function exception." Baker, 817 F.2d at 564 (collecting cases). In Begay v. United States, 768 F.2d 1059, 1064 (9th Cir.1985), we held that any time judicial review would encroach upon an agency's balancing of policy issues, the exception would apply. We also stated that Varig compels us to analyze the nature of the conduct in each case to determine if the discretionary function exception is applicable. Id.

III

Congress has given the FAA the power to establish necessary procedures and regulations for the safety of flight in air commerce. 49 U.S.C. Sec. 1421(a)(1), (6) (1982). ³ The FAA also has the power to delegate that discretion to its agents and employees. 49 U.S.C. Sec. 1343(d) (1982). ⁴ The FAA exercised that discretion in determining that a departure procedure should be designed for Bishop Airport.

FAA employees were delegated the power and duty to determine whether nighttime proving flights were required before approving the departure procedure designed for Bishop Airport. The district court found that FAA employees, when making these decisions, "were authorized only to consider the safety of the procedure and not social, political or economic considerations other than safety." (Emphasis added).

Appellants, while admitting that discretion was involved in the decisions the FAA made, argue that the district court considered safety alone and did not evaluate the social, political or economic policy considerations that Varig requires. Appellants argue that safety is not a social, political or economic consideration.

A

FAA employees consider safety in exercising their judgment whether to establish departure procedures for airports. They also consider safety in exercising their judgment whether night proving flights are needed. Determination of safety requirements involves a balancing of social, economic or political policies. In any safety decision, there are limits to the resources available to test and inspect the procedure and those who will be using it. Varig, 467 U.S. at 820, 104 S.Ct. at 2767. In Varig the Court held that regulatory activity within the discretionary function exception includes an agency's determination of "the extent to which it will supervise the safety procedures of private individuals...." Id. at 819-20, 104 S.Ct. at 2767 (emphasis added). See also Cunningham v. United States, 786 F.2d 1445, 1447 (9th Cir.1986) (when Congress leaves the establishment and enforcement of safety standards to an agency, it intends an exercise of that discretion to fall within the discretionary function exception). The decision the FAA made here as to what is...