104 S.Ct. 2755

81 L.Ed.2d 660

(Cite as: 467 U.S. 797, 104 S.Ct. 2755)

UNITED STATES, Petitioner,

V.

S.A. EMPRESA de VIACAO AEREA RIO GRANDENSE (VARIG AIRLINES) et al. UNITED STATES, Petitioner,

V.

UNITED SCOTTISH INSURANCE CO. et

al.

Nos. 82-1349, 82-1350.

Supreme Court of the United States

Argued Jan. 18, 1984.

Decided June 19, 1984.

Rehearing Denied Aug. 16, 1984.

See 468 U.S. 1226, 105 S.Ct. 26.

Owner of commercial aircraft brought action against United States under Federal Tort Claims Act seeking damages for a destroyed aircraft. That action was consolidated with a separate action under the Act pressing claims for wrongful death. The United States District Court for the Central District of California granted summary judgment for the United States. The Court of Appeals for the Ninth Circuit, 692 F.2d 1205, reversed. The owner of another aircraft and his insurers brought actions against the United States under the Act seeking damages arising from crash of the aircraft. The United States District Court for the Southern District of California entered judgment against the Government. On appeal, the Court of Appeals for the Ninth Circuit, 614 F.2d 188, reversed and remanded. On Government's second appeal, the Ninth Circuit affirmed the judgment of the District Court, 692 F.2d 1209. Thereafter, the Government petitioned for a writ of certiorari. The Supreme Court, Chief Justice Burger, held that discretionary function exception to Federal Tort Claims Act precluded tort actions based on Federal Aviation Administration's alleged negligence in failing to check certain specific items in course of certificating certain aircraft for use in commercial aviation.

Page 1

Judgments of Court of Appeals for Ninth Circuit reversed.

Order on remand, 744 F.2d 1387.

[1] UNITED STATES 78(12) 393k78(12)

It is the nature of the conduct, rather than status of the actor, which governs whether discretionary function exception of Federal Tort Claims Act applies in a given case. 28 U.S.C.A. § 2680(a).

[2] UNITED STATES 78(12) 393k78(12)

Discretionary function exception of Federal Tort Claims Act covers not only agencies of government, but all employees exercising discretion. 28 U.S.C.A. § 2680(a).

[3] UNITED STATES 78(12) 393k78(12)

functions.

Discretionary function exception of Federal Tort Claims Act was intended to encompass discretionary acts of Government acting in its role as a regulator of conduct of private individuals. 28 U.S.C.A. § 2680(a).

[4] UNITED STATES 78(12) 393k78(12)

Discretionary function exception to Federal Tort Claims Act precluded tort actions based on Federal Aviation Administration's alleged negligence in failing to check certain specific items in course of certificating certain aircraft for use in commercial aviation. 28 U.S.C.A. § 2680(a).

**2756 Syllabus [FNa1]

FNal. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

The Federal Aviation Act of 1958 directs the Secretary of Transportation to promote safety in air transportation by promulgating

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104 S.Ct. 2755

(Cite as: 467 U.S. 797, 104 S.Ct. 2755, **2756)

reasonable rules and regulations governing the inspection, servicing, and overhaul of civil aircraft. The Secretary, in her discretion, may prescribe the manner in which such inspection, servicing, and overhaul shall be made. In the exercise of this discretion, the Federal Aviation Administration (FAA), as the Secretary's designee, has devised a system of

compliance review that involves certification of aircraft design and manufacture. Under this certification process, the duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and operator, while the FAA retains responsibility for policing compliance. Thus, the manufacturer is required to develop the plans and specifications and perform the inspections and tests necessary to establish that an aircraft design comports with the regulations; the FAA then reviews the data by conducting a "spot check" of

the

manufacturer's work. Part of the FAA compliance procedure involves certification, whereby the FAA, if it finds that a proposed new type of aircraft comports with minimum safety standards, signifies its approval by issuing a type certificate. If an already certificated aircraft's design undergoes a major change, the FAA, if it approves the change, issues a supplemental type certificate. In No. 82-1349, a Boeing 707 commercial jet aircraft owned by respondent airline was flying from Rio de Janeiro to Paris when a fire broke out in one of the aft lavatories producing thick black smoke throughout the cabin. Despite a successful effort to land the plane, most of the passengers on board died from asphyxiation or the effects of toxic gases produced by the fire, and most of the plane's fuselage was consumed by the post-impact fire. Respondent airline's action against the United States under the Federal Tort Claims Act (Act or FTCA) seeking damages for the destroyed aircraft and a wrongful-death action by respondent families and representatives of the deceased passengers under the Act were consolidated in the Federal District Court. Respondents alleged that 798 the Civil Aeronautics Agency, the FAA's predecessor, was negligent in issuing a type certificate for the Boeing 707 because the lavatory trash receptacle did not satisfy applicable safety

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regulations. The District Court granted summary judgment for the United States on the ground, inter alia, that recovery against the United States was barred by 28 U.S.C. § 2680(a), which provides that the Act shall not apply to 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" (discretionary function exception). The Court of Appeals reversed, holding, inter alia, that the discretionary function exception did not apply. In No. 821350, an aircraft owned by respondent Dowdle and used in an air taxi service caught fire in midair in the forward baggage compartment, crashed, and burned, killing all the occupants. Respondent Dowdle filed an action under the FTCA for property damage and respondent insurance companies also filed an action under the Act seeking reimbursement for moneys paid for liability coverage on Dowdle's behalf. Respondents claimed that the Government was negligent in issuing a supplemental type certificate for the installation of a gasolineburning cabin heater in the airplane that did not comply with the applicable FAA regulations. The District Court in California, upon finding that the crash resulted from defective installation of the heater, entered judgment for respondents under the California "Good Samaritan" rule, and the Court of Appeals affirmed.

**2757 Held: The actions are barred by the discretionary function exception of the FTCA. Pp. 2761-2768.

(a) It is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case. Moreover, the legislative history discloses that such exception was plainly intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals. Congress wished to prevent "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. Pp. 2761-2765.

exception precludes a tort action based upon the FAA's conduct in certificating the aircraft in question for use in commercial aviation. The FAA's implementation of a mechanism for compliance review is plainly discretionary activity of the "nature and quality" protected by 2680(a). Judicial intervention, through private tort suits, in the FAA's decision to utilize a "spot-checking" program as the best way to accommodate the goal of air transportation safety and the reality of finite agency resources would require the courts to "second-guess" the political, social, and economic judgments of an agency *799 exercising its regulatory function. It was precisely this sort of judicial intervention that the discretionary function exception was designed to prevent. It follows that the acts of FAA employees in exercising the "spot-check" program are also protected by that exception, because respondents alleged only that the FAA failed to check particular items in the course of its review. Moreover, the risks encountered by these inspectors were encountered for the advancement of a governmental purpose and pursuant to a specific grant of authority. Pp. 2765-2768.

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On July 11, 1973, a commercial jet aircraft owned by respondent S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines) was flying from Rio de Janeiro to Paris when *800 a fire broke out in one of the aft lavatories. The fire produced a thick black smoke, which quickly filled the cabin and cockpit. Despite the pilots' successful effort to land the plane, 124 of the 135 persons on board died from asphyxiation or the effects of toxic gases produced by the fire. Most of the plane's fuselage was consumed by a postimpact fire.

The aircraft involved in this accident was a Boeing 707, a product of the Boeing Co. In 1958 the Civil Aeronautics Agency, a predecessor of the FAA, had issued a type certificate [FN1] for the Boeing 707, certifying that its designs, plans, specifications, and performance data had been shown to be in **2758 conformity with minimum safety standards. Seaboard Airlines originally purchased this particular plane for domestic use; in 1969 Seaboard sold the plane to respondent Varig Airlines, a Brazilian air carrier, which used the plane commercially from 1969 to 1973.

FN1. Before introducing a new type of aircraft, a manufacturer must first obtain from the FAA a type certificate signifying that the basic design of the aircraft meets the minimum criteria specified in the safety regulations promulgated by the FAA. 49 U.S.C. § 1423(a); 14 CFR §§ 21.11-21.53 (1983). When applying for a type certificate, the manufacturer must supply the FAA with detailed plans, data, and documentation illustrating the aircraft design and demonstrating its compliance with FAA regulations. FAA employees or private employees who represent the FAA then examine the manufacturer's submission for conformity with the regulations. See infra, at 2760.

After the accident respondent Varig Airlines brought an action against the United States under the Federal Tort Claims Act seeking damages for the destroyed aircraft. The families and personal representatives of many of the passengers, also respondents here, brought a separate suit under the Act pressing claims for wrongful death. The two actions were consolidated in the United States

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