Tort – FAA Inspection – Flight Instructor – Helicopter’s Airworthiness Certificate – ‘Discretionary’

Holbrook v. U.S. (Lawyers Weekly No. 001-064-12, 18 pp.) (Wilkinson, J.) No. 10-2355 March 12, 2012; USDC at Charleston, W.Va. (Copenhaver, J.) 4^th Cir. Full-text opinion.

Holding: A helicopter flight instructor cannot sue the Federal Aviation Administration for alleged harm to his flight instruction business resulting from the FAA’s suspension of an airworthiness certification of the helicopter leased by the instructor; the 4^th Circuit affirms the district court’s finding that the FAA inspector’s original certification of the aircraft fell under the FTCA’s discretionary function exception.

The Federal Tort Claims Act’s waiver of sovereign immunity 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. Where this discretionary function exception applies, the courts lack federal subject matter jurisdiction.

To determine whether the exception applies, we consider whether the government action at issue involves an element of judgment or choice that is based on considerations of public policy. A government employee’s conduct does not involve discretion where a federal statute, regulation or policy specifically prescribes a course of action for an employee to follow and the employee has no rightful option but to adhere to the directive.

Initially, we observe that the FAA’s establishment of procedures to govern the certification process is plainly a protected exercise of discretion.

Although plaintiff does not take issue with the regulatory scheme implemented by the FAA, he alleges the FAA inspector acted outside the bounds of discretion by applying the wrong regulatory requirements to grant an Airworthiness Certificate (AC) to the subject helicopter. The inspector’s decision to certify the imported helicopter under 14 C.F.R. § 21.183(c), rather than paragraph (d), did not violate a regulatory mandate. To interpret the FAA Order cited by plaintiff as creating a legal obligation to apply § 21.183(d) would therefore reorder agency directives.

Contrary to plaintiff’s insistence, the inspector was not required to deny an AC because the helicopter’s application included only an Attestation from the French Civil Aviation Authority, and not an Export Certificate of Airworthiness. It is clear the FAA did not specifically prescribe a course of action the inspector failed to follow when he chose to credit the Attestation for purposes of § 21.183(c).

Plaintiff argues the FAA’s decision to suspend the helicopter’s AC illustrates the inspector lacked discretion to conclude the helicopter conformed to its type certificate in the first place. This argument mistakes a subsequent allegation of error for a prior lack of discretion. FAA certification procedures authorize aircraft inspectors to make discretionary policy decisions. Plaintiff has given us no reason to doubt that the conduct at issue was grounded in policy considerations.

Judgment dismissing the complaint is affirmed.