UNITED STATES OF AMERICA, PETITIONER V. S.A. EMPRESA DE VIACAO AEREA RIO GRANDENSE (VARIG AIRLINES) UNITED STATES OF AMERICA, PETITIONER V. EMMA ROSA MASCHER, ET AL. No. 82-1349 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PARTIES TO THE PROCEEDING Respondents not named in the caption are listed in Appendix F, infra, 18a-24a. TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-7a) is reported at 692 F.2d 1205. /1/ The findings of fact and conclusions of law of the district court (App. B, infra, 8a-13a) are not reported. JURISDICTION The judgemnts of the court of appeals in these consolidated cases were entered on October 8, 1982 (App. D, infra, 16a; App. E, infra, 17a). On December 28, 1982, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including February 11, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED 28 U.S.C. 2674 provides, in pertinent part: The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances * * *. 28 U.S.C. 2680 provides, in pertinent part: The provisions of this chapter and section 1346(b) of this title (conferring jurisdiction on the district courts) shall not apply to (a) 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. * * * * * (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights * * *. QUESTIONS PRESENTED 1. Whether the United States is liable under the Federal Tort Claims Act as a "private individual under like circumstances" for the Federal Aviation Administration's alleged failure to discover a safety defect while carrying out its regulatory duty of certifying the airworthiness of aircraft in commercial aviation. 2. Whether a suit against the United States alleging that the FAA negligently certified an aircraft's design as complying with minimum safety standards as part of its efforts to regulate compliance with those standards is barred as a claim based upon the performance of a "discretionary function" within the meaning of 28 U.S.C. 2680(a). 3. Whether a suit against the United States alleging that the FAA negligently inspected and certified the design of a lavatory in an aircraft is barred as a "claim arising out of * * * misrepresentation" within the meaning of 28 U.S.C. 2680(h). STATEMENT 1. In the Federal Aviation Act of 1958, 49 U.S.C. (& Supp. IV) 1301 et seq., Congress has directed the Secretary of Transportation "to promote safety of flight of civil aircraft" by prescribing "minimum standards governing the design, materials, workmanship, construction, and performance of aircraft * * *." 49 U.S.C. 1421(a) and (1). At the same time, Congress has imposed a primary duty on "every person (in the aviation industry) engaged in operating, inspecting, maintaining, or overhauling equipment to observe and comply" with the statutory and administrative standards prescribed by the Secretary. 49 U.S.C. 1425(a). See also 49 U.S.C. 1421(b). In order to monitor adequately the aviation industry's compliance with these safety standards, Congress has created a multi-step process for certifying the safety of aircraft, and the Federal Aviation Administration ("FAA"), acting as the designee for the Secretary, has promulgated extensive regulations establishing minimum standards that must be satisfied by the designer or manufacturer of an airplane at each stage in the certification process. Each step culminates in the issuance of a certificate by the FAA; it is unlawful to operate an airplane that does not have a current "airworthiness certificate," which is the final stage in the process. 49 U.S.C. (& Supp. IV) 1430(a). Before introducing a new type of airplane, the manufacturer must first obtain a "type certificate," which involves FAA approval of the basic design of the aircraft. 49 U.S.C. 1423(a); 14 C.F.R. 21.11-21.53. The manufacturer supplies the FAA with blueprints and/or design drawings, which FAA employees examine for compliance with minimum safety standards. Through this process, which may take years to complete, a basic design is approved and a type certificate is issued. See generally National Academy of Sciences, Committee on FAA Airworthiness Certification Procedures, Improving Air Safety 19-20 (1980). The manufacturer then builds a prototype of the aircraft and applies for a "production certificate." 49 U.S.C. 1423(b); 14 C.F.R. 21.131-21.165. This certificate authorizes the manufacturer to produce copies of the prototype so long as they are identical in all respects to the "type" approved. The manufacturer must supply detailed information regarding materials used and production methods employed. 14 C.F.R. 21.143. In addition, FAA employees inspect the prototype and test fly it "to determine compliance with the applicable (safety standards)." 14 C.F.R. 21.157. After the manufacturer receives a production certificate, and assuming no limitations are imposed on the certificate, it may begin mass production of the approved aircraft. The manufacturer must, however, obtain an airworthiness certificate for each aircraft that is assembled. This requires that the aircraft be inspected to determine whether it conforms to the prior certifications and the minimum safety standards. 49 U.S.C. 1423(c); 14 C.F.R. 21.171-21.199. /2/ A Class I Export Certificate of Airworthiness may be obtained from the FAA upon request. 14 C.F.R. 21.321-21.339. Such a certificate informs a foreign government that a particular aircraft exported from the United States complies with the approved design and is in condition for safe operation at the time of export. In light of the extensiveness and complexity of the safety standards (14 C.F.R. 23.1-23.1589) and the large number of aircraft requiring certification, the FAA is unable to monitor or inspect directly every aspect of every design, prototype or assembled aircraft. Accordingly, consistent with the statutory scheme (49 U.S.C. 1425(a)), the regulations impose upon each applicant an obligation, inter alia, to "make all inspections and tests necessary to determine * * * (c)ompliance with the applicable airworthiness * * * requirements." 14 C.F.R. 21.33(b) and (1). In addition, the vast majority of the FAA's inspections are performed by "designated engineering representatives," who typically are employees of the manufacturer or operator of the aircraft but are licensed by the FAA. 14 C.F.R. 183.29. For each aircraft, literally dozens of inspections are conducted by different individuals with engineering expertise in a particular area -- some federal employees but most not. /3/ The FAA-signed certificate does not indicate who conducted the inspection of any particular aspect of the aircraft. 2. This case involves the crash of a Boeing 707 airplane, which was designed, manufactured, tested, inspected and assembled by the Boeing Company (App. B, infra, 9a). The Civil Aeronautics Agency ("CAA"), the predecessor of the Federal Aviation Administration, inspected the designs, plans, specifications and performance data for the Boeing 707 aircraft and issued a type certificate in 1958, 15 years prior to the accident at issue here (ibid.). The airplane was sold by Boeing for domestic use to Seaboard Airlines, and in 1969, Seaboard sold the plane to respondent Varig Airlines, a Brazilian commercial air carrier (ibid.). /4/ At that time, the airplane was removed from the United States Civil Aircraft Registry and placed on the Brazilian registry (14 C.F.R. 21.335(e)(1)). Consequently, any FAA airworthiness certificate previously issued to the airplane became invalid and, indeed, was no longer required so long as the plane did not fly within the airspace of the United States (ibid.). The ultimate responsibility for regulating the airworthiness of the airplane then rested with the state of registry (in this case, Brazil). See 49 U.S.C. 1401 and 1508(b). On July 11, 1973, the Boeing 707 airplane crashed while on a commercial flight from Rio de Janeiro to Paris, France (App. B, infra, 8a). A few minutes before the scheduled landing at Orly Airport, a fire began in one of the aft lavatories (App. A, infra, 2a). Thick, black smoke quickly filled the entire cabin and cockpit area and caused the airplane to make a crash landing into a field a few miles from the airport (ibid.). All but 11 of the 135 persons on board the plane died from asphyxiation caused by inhaling toxic gases (ibid.). A post-impact fire consumed most of the air fuselage, including the aft lavatory structure and most of the floor and cargo area beneath and forward of the aft lavatories. 3. Following the accident, two consolidated actions were filed against the United States under the Federal Tort Claims Act, 28 U.S.C. (& Supp. V) 2671 et seq., in the United States District Court for the Central District of California. The Varig suit involved a claim for damages for the destroyed Boeing 707. The Mascher suit involved claims for wrongful death brought by families and personal representatives of 62 passengers. /5/ Respondents claimed that the pre-impact fire originated in the towel disposal area located in the sink unit of one of the aft lavatories of the airplane and was caused either by an electrical malfunction or by passenger carelessness. They alleged that the towel disposal area was not capable of containing fire as required by FAA regulations and that the FAA was negligent in its inspection of the plane and issuance of a type certificate for the Boeing 707 in 1958 -- 15 years prior to the crash. /6/ The district court entered summary judgment for the United States (App. B, infra, 8a-13a). The court first noted that the Federal Tort Claims Act subjects the United States to liability only where a private person would be liable in "like circumstances" (id. at 10a), and it held that California law does not recognize a duty giving rise to liability in tort for inspection and certification activities (id. at 10a). The court further held that the FAA's inspection and certification responsibilities were regulatory functions, not operational services, and "(did) not give rise to an actionable duty in tort under California law" that extended to respondents (ibid.). Specifically, the court ruled that "the benefits of (the FAA's inspections) flow to the general public at large and not to any individual so as to render the United States liable for negligence in their performance" (id. at 11a) and that the FAA's actions did not relieve respondent Varig of the primary responsibility for the safety of its airplane (id. at 12a). Although the district court found no basis for imposing liability on the government based on any tort theory, it nevertheless held that respondents' claims were barred by the discretionary function and misrepresentation exceptions to the Federal Tort Claims Act, 28 U.S.C. 2680(a) and (h) (App. B, infra, 12a). 4. The court of appeals reversed (App. A, infra, 1a-7a). Employing reasoning similar to that adopted by the same panel in its opinion issued the same day in United Scottish Insurance Co. v. United States, 692 F.2d 1209 (9th Cir. 1982), the court held that the United States could be held liable under the good samaritan doctrine, as set forth in Sections 323 and 324A of the Restatement (Second) of Torts (1965). In the court's view, the government had performed a "service" to respondents within the meaning of the doctrine because "the United States, through the F.A.A., has voluntarily undertaken the inspection and certification of all civilian aircraft" (App. A, infra, 5a). The court also concluded that the reliance element of the doctrine had been satisfied because, having issued regulations "designed to insure optimum safety," the government "should expect that members of the public will rely on the proper performance by the F.A.A. of its duty to inspect and certify" (ibid.). The court made no mention of the significance, if any, of the fact that all of the passengers on the aircraft were foreign residents or that respondent Varig had never attempted to obtain an export certificate of airworthiness. Relying in part on Neal v. Bergland, 646 F.2d 1178 (6th Cir. 1981), cert. granted, No. 81-1494 (May 24, 1982), the court of appeals ruled that the misrepresentation exception did not bar this action because "(respondents') claims * * * arise from the negligence of the inspection rather than from any ensuing misrepresentation contained in the resultant certificate" (App. A, infra, 6a). Finally, the court of appeals rejected the discretionary function exception as a bar to this suit because "(t)he kind of discretion contemplated by the exemption clause does not exist in certifying compliance with F.A.A. safety regulations" (id. at 6a-7a). Judge Chambers' concurring opinion in United Scottish Insurance Co. also applied to this case (692 F.2d at 1212). Judge Chambers observed that "(m)ost of us thought when the Federal Tort Claims Act was passed that the discretionary exception * * * would preclude recovery on the facts of the two cases we decide today, but the developing law seems to have overtaken us." REASONS FOR GRANTING THE PETITION These two cases present important questions identical to those presented in our petition for a writ of certiorari in United States v. United Scottish Insurance Co., No. 82- (filed Feb. 11, 1983). /7/ All three cases were decided on identical grounds by the same panel of the Ninth Circuit on the same day. In each case the court of appeals held that the United States is liable under the Federal Tort Claims Act for injuries allegedly caused by the crash of airplanes inspected by FAA employees and negligently certified as airworthy. Obviously, the proper disposition of this petition is dependent on this Court's decision on our petition in United Scottish Insurance. Accordingly, this petition should be held pending disposition of the petition in that case. CONCLUSION The petition for a writ of certiorari should be held pending disposition of the petition in United States v. United Scottish Insurance Co., No. 82- (filed Feb. 11, 1983), and then disposed of as appropriate. Respectfully submitted. REX E. LEE Solicitor General FEBRUARY 1983 /1/ This opinion was originally handed down on October 8, 1982. It was subsequently reissued on October 26, 1982, to include in the caption Emma Rosa Mascher, et al., v. United States. /2/ an additional certificate is required for aircraft that are altered by the introduction of a major change in the type design. 14 C.F.R. 21.113. In order to obtain a "supplemental type certificate," the applicant "must show that the altered product meets the applicable airworthiness requirements * * *." 14 C.F.R. 21.115(a). /3/ The nonemployee representatives are not subject to any direct FAA control, but there are spot checks of their work. See generally, Dilk, Negligence of FAA Administration Delegates Under the Federal Tort Claims Act, 42 J. Air L. & Com. 575, 583 (1976). /4/ Apparently, an Export Certificate was never requested by or issued to respondent Varig or the appropriate Brazilian agency. /5/ Representatives of the passengers brought suit in New York state court against Boeing Company, Seaboard World Airlines, and five subcomponent manufacturers. These suits were settled in 1977. Varig Airlines also brought a separate action against Boeing Company and a subcomponent manufacturer in the United States District Court for the Central District of California. The district court granted summary judgment for the defendants and the court of appeals affirmed. Varig v. Boeing, 641 F.2d 746 (9th Cir. 1981); S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines) v. Walter Kidde & Co., 692 F.2d 1205 (9th Cir. 1982). /6/ The applicable regulation, CAA Section 4b.381 and (d), provided (quoted in App. A, infra, 3a): Cabin Interiors. All compartments occupied or used by the crew or passengers shall comply with the following provisions. * * * * * All receptacles for used towels, papers and waste shall be of fire-resistant material, and shall incorporate covers or other provisions for containing possible fires. No identical provision exists in the FAA's regulations, but they do require that each compartment to be used by the crew or passengers must be made of materials that are flame resistant. 14 C.F.R. 23.853. /7/ We are providing counsel for respondents with a copy of our petition in United Scottish Insurance. Appendix Omitted