engineer like Mr. Fox. (Mot. Ex. 5 at 31.) The determinations of
whether an unsafe condition existed and whether that condition
was likely to exist in other products of the same type design
were left entirely up to the FAA employees' discretion.
14 C.F.R. § 39.1.
The AD explicitly discloses the FAA's concern that the
airplanes were incapable of carrying their currently certified
payload limits. Pemco doesn't deny that the FAA had the
discretion to investigate whether an unsafe condition existed,
but rather takes issue with the reliability of the FAA's
determination that it did.
4. Using an AD to effectively "revoke" the STCs in violation
of FAA Manual M-8040.1. The Manual states that "an AD cannot be
used to "revoke" an STC or field approval. . . ." (Mot. Ex. 5 at
78.) No mandatory provisions of the applicable statutes,
regulations, or manuals, however, prohibited the FAA from placing
weight restrictions on unsafe airplanes. None of the statutes,
regulations, or manuals state that placing weight restrictions on
aircraft amounts to a "revocation" of an STC. Under the relevant
laws and policies, the FAA had discretion to issue an AD once it
determined that an unsafe condition existed.
5. Failing to provide the parties with sufficient reliable
information regarding corrective measures, which needlessly
prolonged the down time and expense of developing alternative
means of compliance. Pemco fails to allege any specific
violation of a mandatory rule, law, or policy that prohibits
delay and expense associated with developing alternative means of
compliance. This claim must fail as a matter of law because Pemco
has not succeeded characterizing the FAA employees' actions as
violations of mandatory duties under the Berkovitz decision.
486 U.S. at 536, 108 S.Ct. 1954.
The remaining question in the discretionary function analysis
is whether the challenged actions are of the type that Congress
intended to shield; that is, whether they are susceptible to
policy analysis. United States v. Gaubert, 499 U.S. 315, 333,
111 S.Ct. 1267, 113 L.Ed.2d 335 (1991).
The government notes that every time the FAA issues an AD it is
acknowledging that an aircraft or design previously approved by
the FAA is not perfect. (Reply at 8.) In this case, the AD was
issued before any accident occurred; in the Conrad and Smolar
cases, the AD never issued. The decision in each of these cases
is the same: whether to issue an AD. Reasonable people may differ
over the propriety of the rule-making action adopted in the
present case, just as they may differ over the effectiveness of
the spot-checking method in Varig Airlines; it is each actor's
exercise of discretion, not the ultimate result, however, that
matters in the discretionary function analysis.
In this case, the challenged actions are the steps taken by FAA
officials that lead to the issuance of the nationwide safety
order. This decision necessarily involves weighing economic and
social considerations. The AD development and review process
guidelines detail a few of these considerations: public safety,
extent of the possible design problem, whether grounding aircraft
is necessary, urgency of the problem, and impact on other
entities. (Mot. Ex. 5 at 31-32.) In short, every time the FAA
investigates whether to issue an AD, it is weighing public safety
concerns against social costs of its decision; this is a policy
analysis. For these reasons, the United States' motion to dismiss
Pemco's negligent supervision and retention claims are fatally
flawed because Pemco fails to allege any federal statute,
regulation, or policy that would have required Steven Fox's
supervisors to take any particular action. Berkovitz, 486 U.S.
at 536, 108 S.Ct. 1954. The Court therefore
finds that the actions of the FAA employees in supervising Mr.
Fox with respect to the AD, and in retaining him to perform his
job, were also discretionary. Gager v. United States,
149 F.3d 918, 920-21 (9th Cir. 1998) (stating that "in the absence of any
statute, regulation, or policy requiring such training," the
decision not to require bomb-detection training for postal
employees "plainly involves judgment or choice."). Allowing these
claims to proceed would effectively allow Pemco to circumvent the
discretionary function exception. Pemco's negligent supervision
and negligent retention claims are therefore dismissed.
IT IS HEREBY ORDERED that:
1. The United States' motion to dismiss for lack of subject
matter jurisdiction is GRANTED.
2. The third-party complaint is dismissed for lack of subject
matter jurisdiction, with prejudice.
3. Pemco's supplemental citation filed November 5, 1999, is
stricken because tends to mislead the Court regarding which
version of FAA Order 8040.1 was in effect at the relevant time.
4. For the reasons stated at the hearing on November 4, 1999,
AIA's motion to substitute Kalitta Air, A.L.C., for itself in
case no. 97-0378 is GRANTED. AIA is granted leave to amend the
complaint for the limited purpose of indicating the substitution.
Kalitta Air will be bound by AIA's discovery responses to date.