PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL HOLBROOK, MARPAT
Aviation, individually and as
lessee of SUD AVIATION – SNIAS
(Aerospatiale) Alouette II Model
SE-3130 Helicopter Serial Number
1133, No. 10-2355
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(2:10-cv-00374)
Argued: January 25, 2012
Decided: March 12, 2012
Before WILKINSON, NIEMEYER, and SHEDD,
Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Niemeyer and Judge Shedd joined.
2 HOLBROOK v. UNITED STATES
COUNSEL
ARGUED: Mary Schiavo, MOTLEY & RICE, LLP, Mt.
Pleasant, South Carolina, for Appellant. Barbara B. O’Malley,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Appellee. ON BRIEF: Tony West, Assistant
Attorney General, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Neil H. MacBride, United
States Attorney, Alexandria, Virginia, for Appellee.
OPINION
WILKINSON, Circuit Judge:
The Federal Aviation Administration ("FAA") is responsi-
ble for regulating aircraft safety, and does so in part through
its system of aircraft certification. This case arises from the
FAA’s decision to suspend the airworthiness certification of
a helicopter leased by appellant Michael Holbrook for his
flight instruction business. Holbrook brought suit against the
United States under the Federal Tort Claims Act ("FTCA"),
alleging that he suffered financial harm as a result of the
FAA’s negligence in first issuing an airworthiness certificate
to the helicopter. The district court dismissed the complaint,
finding that the FAA inspector’s original certification of the
aircraft fell under the discretionary function exception to the
FTCA. We affirm.
I.
The present dispute has its origins in the technical area of
the FAA’s aircraft certification system. Congress has dele-
gated broad authority to the FAA to "promote safe flight of
civil aircraft in air commerce" by "prescribing minimum stan-
dards required in the interest of safety" for aircraft design and
inspection. 49 U.S.C. § 44701(a). To that end, the FAA has
HOLBROOK v. UNITED STATES 3
promulgated regulations that require a multistep certification
process for aircraft models and individual aircraft. See United
States v. S.A. Empresa de Viacao Aerea Rio Grandense
(Varig Airlines), 467 U.S. 797, 804-07 (1984) (describing the
stages of certification). As relevant here, before introducing a
new type of aircraft, a manufacturer "must first obtain FAA
approval of the plane’s basic design in the form of a type cer-
tificate." Id. at 805; see 49 U.S.C. § 44704(a). Once produced,
an individual aircraft must next receive an airworthiness cer-
tificate from the FAA before it may operate in air commerce.
See id. § 44711(a). The FAA has authority to reinspect or
reexamine a civil aircraft at any time and "may issue an order
amending, modifying, suspending, or revoking" a certificate
in the interest of the public and air safety. Id. § 44709(a)-(b).
The type certification process places significant responsi-
bility on the aircraft manufacturer, which must test and ana-
lyze new aircraft designs itself. See, e.g., 14 C.F.R. §§ 21.33,
21.35. The manufacturer must then submit design documenta-
tion, test reports, and engineering computations to demon-
strate that the aircraft satisfies the applicable FAA
regulations. See id. § 21.21. The FAA may issue a type certif-
icate once it has reviewed the manufacturer’s submitted mate-
rials for compliance with FAA regulations and concluded that
the proposed design meets minimum safety standards. See 49
U.S.C. § 44704(a).
The relevant aircraft in this case is an Alouette Model II
SE-3130 Helicopter, Serial Number 1133, Registration
N31330 ("the helicopter"), which was manufactured in France
in 1958. FAA regulation provides an abbreviated type certifi-
cation process for aircraft, such as the subject helicopter,
manufactured in certain foreign countries. See 14 C.F.R.
§ 21.29. Under § 21.29, if the FAA has a bilateral agreement
with the country of origin, the FAA may rely on the foreign
country’s certification that the aircraft has been examined,
tested, and determined to meet the applicable safety require-
ments. Id. The subject helicopter was type certificated in 1958
4 HOLBROOK v. UNITED STATES
in accordance with § 21.29 and issued a No 7H1 type certifi-
cate data sheet.
In 2000, the helicopter was imported into the United States
and the owner applied for an airworthiness certificate ("AC"),
which the FAA may issue "when the Administrator finds that
the aircraft conforms to its type certificate and, after inspec-
tion, is in condition for safe operation." 49 U.S.C. § 44704(d).
The FAA has promulgated procedural requirements for the
issuance of ACs. See 14 C.F.R. §§ 21.171-21.199. At the time
the helicopter was issued an AC in 2001, 14 C.F.R. § 21.183
had four subsections which provided procedures governing
the issuance of a standard AC for aircrafts of different type or
origin. Id. § 21.183 (2001). Section 21.183(c), entitled "Im-
port aircraft," provided that:
An applicant for a standard airworthiness certificate
for an import aircraft type certificated in accordance
with § 21.29 is entitled to an airworthiness certificate
if the country in which the aircraft was manufactured
certifies, and the Administrator finds, that the air-
craft conforms to the type design and is in condition
for safe operation.
14 C.F.R. § 21.183(c) (2001). Subsection (d) of § 21.183,
entitled "Other aircraft," prescribed certification requirements
for aircraft "not covered by paragraphs (a) through (c) of this
section." Id. § 21.183(d) (2001).* In addition, FAA Order
8130.2D, which "establishes procedures for accomplishing
original and recurrent airworthiness certification of aircraft,"
provided additional guidance to FAA employees for the issu-
ance of ACs. See Aviation Admin., Order 8130.2D, Airwor-
thiness Certification of Aircraft and Related Products (1999).
*In 2006, the FAA amended subsection (d) to explicitly apply to "used
aircraft and surplus aircraft of the U.S. Armed Forces." 14 C.F.R.
§ 21.183(d) (2006).
HOLBROOK v. UNITED STATES 5
The AC application for the subject helicopter indicated that
the aircraft was imported and included an "Attestation" from
the French Civil Aviation Authority, which stated that the hel-
icopter "was manufactured by Sud Aviation on 1958 under
the surveillance of the French military Authority." The Attes-
tation explained, however, that "we have not inspected our-
selves this helicopter[ ] but we can certify that its design was
compliant with . . . FAA type certificate no 7H1." FAA safety
inspector Ralph Chadburn evaluated the AC application under
14 C.F.R. § 21.183(c). After consulting with his superiors, he
determined that the Attestation satisfied the foreign certifica-
tion requirement and issued an AC for the helicopter in 2001.
He later explained that he reviewed "the aircraft’s mainte-
nance and operational records, its inspection history and its
certification history" and that he "relied on applicable statutes,
regulations and FAA guidance, including FAA Order
8130.2D."
MARPAT Aviation, LLC, Holbrook’s helicopter flight
instruction business, leased the certificated helicopter from its
present owner, Mike’s Contracting, LLC in 2004. In late
2006, the FAA initiated a review of all Alouette helicopters,
including the helicopter leased by MARPAT, due to concern
that the helicopters, originally designed for use by the mili-
tary, were not intended for civil certification. The FAA reex-
amined the Attestation submitted with the helicopter’s AC
application and deemed it insufficient to establish eligibility
for certification. On August 14, 2007, Holbrook received an
Emergency Order of Suspension from the FAA. The order
suspended the AC of the helicopter, preventing the aircraft’s
use by MARPAT.
Holbrook brought suit against the United States under the
FTCA, alleging that the FAA inspector erroneously issued an
AC to the subject helicopter by misapplying mandatory FAA
regulations, which caused him financial harm when the AC
was suspended. The district court granted the United States’
motion to dismiss the complaint under Rule 12(b)(1) for lack
6 HOLBROOK v. UNITED STATES
of subject matter jurisdiction, finding that the inspector’s
decision to issue an AC was an exercise of discretion
excepted from the FTCA’s limited waiver of governmental
immunity. Holbrook v. United States, 749 F. Supp. 2d 446
(S.D. W. Va. 2010). This appeal followed and we review the
district court’s dismissal of the complaint de novo. See Indem-
nity Ins. Co. v. United States, 569 F.3d 175, 179 (4th Cir.
2009).
II.
A.
The statutory framework of this case is well settled and we
shall review it only briefly. The Federal Tort Claims Act
waives the sovereign immunity of the United States with
respect to civil actions in federal court for injuries "caused by
the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or
employment." 28 U.S.C. § 1346(b). Where immunity is
waived, the government may be held liable in tort "in the
same manner and to the same extent as a private individual
under like circumstances." Id. § 2674. But the FTCA’s grant
of federal jurisdiction is qualified by a number of exceptions.
See id. § 2680. As relevant here, the waiver of immunity does
not apply to "[a]ny claim . . . based upon the exercise or per-
formance 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." Id. § 2680(a). Where this discretionary
function exception applies, the courts lack federal subject
matter jurisdiction. See Williams v. United States, 50 F.3d
299, 304-05 (4th Cir. 1995).
The discretionary function exception "marks the boundary
between Congress’ willingness to impose tort liability upon
the United States and its desire to protect certain governmen-
tal activities from exposure to suit by private individuals."
HOLBROOK v. UNITED STATES 7
Varig Airlines, 467 U.S. at 808. It protects the government
"from being hobbled in the discharge of its policy-driven
duties by tort suits," Baum v. United States, 986 F.2d 716, 720
(4th Cir. 1993), and from "liability that would seriously hand-
icap efficient government operations." Varig Airlines, 467
U.S. at 814 (quoting United States v. Muniz, 374 U.S. 150,
163 (1963)). And the exception preserves separation of pow-
ers by "prevent[ing] judicial ‘second-guessing’ of legislative
and administrative decisions grounded in social, economic,
and political policy through the medium of an action in tort."
Id.; see Tiffany v. United States, 931 F.2d 271, 276 (4th Cir.
1991).
B.
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." Berkovitz v. United States, 486 U.S. 531, 536-
37 (1988). A government employee’s conduct does not
involve discretion where a "federal statute, regulation, or pol-
icy specifically prescribes a course of action for an employee
to follow" and "the employee has no rightful option but to
adhere to the directive." Id. at 536. Where, however, a regula-
tion authorizes or requires employee discretion, "it must be
presumed that the agent’s acts are grounded in policy when
exercising that discretion." United States v. Gaubert, 499 U.S.
315, 324 (1991).
III.
As an initial matter, we observe that the FAA’s establish-
ment of procedures to govern the certification process is
plainly a protected exercise of discretion. As the Supreme
Court explained in Varig Airlines: "When an agency deter-
mines the extent to which it will supervise the safety proce-
dures of private individuals, it is exercising discretionary
regulatory authority of the most basic kind." 467 U.S. at 819-
8 HOLBROOK v. UNITED STATES
20. This is true of the FAA, which "Congress specifically
empowered . . . to establish and implement a mechanism for
enforcing compliance with minimum safety standards accord-
ing to [its] ‘judgment of the best course.’" Varig Airlines, 467
U.S. at 816 (quoting Dalehite v. United States, 346 U.S. 15,
34 (1953)). Congress’ broad delegation of discretion to the
FAA recognized that an agency equipped with specialized
knowledge would be best able to stay abreast of accelerating
change in a technical and hazardous area and to update mini-
mum air safety standards accordingly.
The FAA has translated its mandate into procedures for air-
craft certification, balancing such policy considerations as
"the goal of air transportation safety and the reality of finite
agency resources." Id. at 820. The result is a process where
"the applicant itself [is] responsible for conducting all inspec-
tions and tests necessary to determine that the aircraft com-
ports with FAA airworthiness requirements." Id. at 805.
Under both the type and airworthiness certification processes,
the FAA has elected to "police the conduct of private individ-
uals by monitoring their compliance with FAA regulations."
Id. at 815; see Waymire v. United States, 629 F. Supp. 1396,
1400 (D. Kan. 1986) ("[T]here is no basis to distinguish
between the FAA’s role when issuing type certificates and
airworthiness certificates.").
Although Holbrook does not take issue with the regulatory
scheme implemented by the FAA, he alleges that FAA
inspector Chadburn acted outside the bounds of discretion by
applying the wrong regulatory requirements to grant an AC to
the subject helicopter. First, he asserts that Chadburn mis-
takenly evaluated the used imported helicopter’s AC applica-
tion under 14 C.F.R. § 21.183(c), rather than § 21.183(d).
Second, he contends that even if Chadburn properly selected
§ 21.183(c), he erroneously applied its criteria to grant the
AC. We shall address each argument in turn.
HOLBROOK v. UNITED STATES 9
IV.
Inspector Chadburn’s decision to certify the imported heli-
copter under 14 C.F.R. § 21.183(c), rather than paragraph (d),
did not violate a regulatory mandate. As the district court
found, "the plain language of § 21.183 indicates that Chad-
burn properly assessed the airworthiness of the Alouette Heli-
copter under paragraph (c)." Holbrook, 749 F. Supp. 2d at
453. Paragraph (c) provided guidelines for the issuance of "an
import aircraft type certificated in accordance with § 21.29,"
14 C.F.R. § 21.183(c) (2001), and the subject helicopter was
manufactured in France, type certificated under 14 C.F.R.
§ 21.29, and imported to the United States before application
for an AC. Nothing in the language of (d), which prescribed
certification procedures for "other" aircraft "not covered by
paragraphs (a) through (c) of this section," suggests other-
wise. Id. § 21.183(d) (2001). As the Supreme Court empha-
sized in Gaubert, "if a regulation mandates particular conduct,
and the employee obeys the direction, the Government will be
protected because the action will be deemed in furtherance of
the policies which led to the promulgation of the regulation."
499 U.S. at 324.
Holbrook nonetheless asserts that the guidance provided in
FAA Order 8130.2D establishes that Chadburn was required
to review an AC for a used imported aircraft, such as the sub-
ject helicopter, under § 21.183(d). Specifically, he points to
¶60a of the Order, which states, "Under § 21.183(d), an appli-
cant is entitled to a standard airworthiness certificate for air-
craft that are . . . used (to include § 21.29 aircraft)." FAA
Order 8130.2D ¶60a. According to Holbrook, ¶60a thus estab-
lishes that § 21.183(c) governs only the issuance of ACs for
new imported aircraft.
It is undisputed that the subject helicopter was a used air-
craft. But Holbrook’s selective reliance on the Order over-
looks the fact that its guidance is conflicting at best.
Paragraph 208 of the Order, in Chapter 6 entitled "Import Pro-
10 HOLBROOK v. UNITED STATES
cedures," "provides guidance and procedures relating to U.S.
airworthiness certification and approval of imported prod-
ucts." FAA Order 8130.2D ¶208. It states that § 21.183(c),
and not (d), is appropriately applied to aircraft type certifi-
cated under § 21.29:
Section 21.183(c) is the basis for issuing a U.S. stan-
dard airworthiness certificate for imported aircraft
which have been type certificated by the FAA under
the provisions of § 21.29. The regulatory basis for
issuance of U.S. standard airworthiness certificates
to all other aircraft imported into the United States
is § 21.183(d). An example is an aircraft type certifi-
cated under the provisions of § 21.21 . . . .
FAA Order 8130.2D ¶208e(1)(a). Because both the regulation
and ¶208e of the Order suggest that the subject helicopter
should be evaluated under § 21.183(c), Chadburn reasonably
adjudged that paragraph (d) was inapplicable. If anything, the
Order’s overlapping instructions with respect to § 21.183(c)
and § 21.183(d) expanded, rather than contracted, the discre-
tion Chadburn possessed in choosing between them.
What is more, the Order’s internal guidance to FAA
employees is insufficient to establish a mandatory require-
ment such that the exercise of discretion was removed from
the task at hand. If select passages from a lengthy and com-
plex order could serve as the basis for government tort liabil-
ity, the FAA would be hobbled by the specter of litigation as
it worked to promote aircraft safety. The price of circulating
internal guidance should not be an exponential increase in
exposure to a tort suit. In Tiffany, we rejected the idea that
"Air Force regulation that designates internal operating proce-
dures automatically gives rise to an actionable duty in tort to
comply with them." 931 F.2d at 279. We recognized that an
agency "might well respond by setting fewer procedures and
regulations if each could give rise to civilian tort suits," result-
ing "in increased confusion and a loss of . . . efficiency." Id.
HOLBROOK v. UNITED STATES 11
at 281; see also Indemnity Ins. Co., 569 F.3d at 181 (holding
that the discretionary function exception applied where the
procedures in a Marine Safety Manual were "only recom-
mended," not "mandatory").
Plaintiff’s construction of FAA Order 8130.2D would ele-
vate rigidity over flexibility in FAA operations. It would fur-
ther involve courts in the detailed supervision of FAA
certifications, all to the detriment of the congressional delega-
tion of discretion to the agency. See 49 U.S.C. § 44701(a).
FTCA liability would especially "handicap efficient govern-
ment operations" here, Varig Airlines, 467 U.S. at 814,
because Holbrook seeks to raise "recommended guidelines
above the FAA’s unambiguous, mandatory regulations," Hol-
brook, 749 F. Supp. 2d at 454. To interpret the Order as creat-
ing a legal obligation to apply § 21.183(d) would therefore
reorder agency directives, transforming the subordinate into
the superior. Whatever murkiness exists in the FAA Order is
hardly sufficient to deprive Chadburn of the protection
accorded the judgmental exercise of evaluating this helicop-
ter’s airworthiness certification application.
V.
Holbrook next contends that even if it were within Chad-
burn’s discretion to apply 14 C.F.R. § 21.183(c), Chadburn
erroneously applied its criteria to issue an AC. Section
44704(d) of Title 49 directs that "[t]he Administrator shall
issue an airworthiness certificate when the Administrator
finds that the aircraft conforms to its type certificate and, after
inspection, is in condition for safe operation." 49 U.S.C.
§ 44704(d). With respect to imported aircraft, § 21.183(c)
required that an aircraft’s AC application include a certifica-
tion from the country of manufacture that the "aircraft con-
forms to the type design and is in condition for safe
operation." 14 C.F.R. § 21.183(c) (2001).
12 HOLBROOK v. UNITED STATES
A.
Holbrook argues that Chadburn lacked discretion to issue
the AC in reliance on the Attestation issued by the French
Civil Aviation Authority, which certified that the helicopter
"was manufactured by Sud Aviation on 1958 under the sur-
veillance of the French military Authority" and "that its
design was compliant with . . . FAA type certificate no 7H1."
He insists that 49 U.S.C. § 44704(d)’s mandate eliminates
judgment or choice from the airworthiness certification pro-
cess and that Chadburn acted outside its prescribed course of
conduct in relying on the Attestation as opposed to an Export
Certificate of Airworthiness.
Chadburn’s conduct, however, is again protected by the
discretionary function exception—his determination to grant
an AC did indeed involve "an element of judgment or choice"
that was "based on considerations of public policy."
Berkovitz, 486 U.S. at 536-37. In fact, the very particularized
way in which Holbrook seeks to have Chadburn go about his
job would eviscerate the discretion conferred by Congress
upon the FAA in devising the best means of "promot[ing] safe
flight of civil aircraft in air commerce." 49 U.S.C. § 44701(a).
The general language in 49 U.S.C. § 44704(d) simply "can-
not be interpreted as removing all safety-related decisions
from the discretion of the agency administering [a] project."
Baum, 986 F.2d at 722. In Baum, the plaintiff argued that the
congressional mandate to build a Baltimore-Washington park-
way "to provide a protected, safe, and suitable approach for
passenger-vehicle traffic" removed the National Park Ser-
vice’s discretion in constructing guardrails for the parkway.
We disagreed, concluding that "very general, sweeping lan-
guage is insufficient to remove questions of design and con-
struction . . . from the discretion of the National Park
Service." Id.; see also Tippett v. United States, 108 F.3d 1194,
1197 (10th Cir. 1997) (holding that a management policy of
the National Park Service that "[t]he saving of human life will
HOLBROOK v. UNITED STATES 13
take precedence over all other management actions" was "too
general to remove the discretion" from the park ranger’s con-
duct).
So too here, "[t]he existence of some mandatory language
does not eliminate discretion when the broader goals sought
to be achieved necessarily involve an element of discretion."
Miller v. United States, 163 F.3d 591, 595 (9th Cir. 1998). It
is clear that the general language used by Congress to express
broad air safety purposes involves significant discretionary
elements. The statute identifies regulatory goals but relies on
the FAA to provide criteria for assessing an aircraft’s safety
and to specify the appropriate method of aircraft inspection.
Although the FAA is statutorily required to determine that the
aircraft conforms to its type certificate before issuing an AC,
Congress entrusted the FAA to develop a system of review
and to make its own findings. And the FAA’s airworthiness
certification process reserves discretion for its inspectors to
ensure compliance with aviation safety requirements. For
example, § 21.183(c) did not specify particular language that
a foreign certification document must contain to establish that
the aircraft conforms to its type certificate.
Therefore, contrary to Holbrook’s insistence, Chadburn
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 Airwor-
thiness. Whereas an Export Certificate of Airworthiness certi-
fies that an aircraft has been inspected by the foreign Civil
Aviation Authority, a certification statement such as the
Attestation verifies that the aircraft conformed to a U.S. type
certificate at the time of manufacture.
Section 21.183(c) does not condition an AC on the submis-
sion of an Export Certificate of Airworthiness. Paragraph 40c
of Order 8130.2D stresses that an AC applicant may instead
submit "a certification statement [from a foreign Civil Avia-
tion Authority] that the aircraft meets its FAA-approved type
14 HOLBROOK v. UNITED STATES
design and is in a condition for safe operation." FAA Order
8130.2D ¶40c. Paragraph 213 of the Order similarly high-
lights that an Export Certificate of Airworthiness is only one
example of an acceptable foreign certification document. It
provides that in determining that an aircraft is in condition for
safe operation pursuant to 49 U.S.C. § 44704(d), the "FAA
may base its findings, wholly or partially, on the export certi-
fication document (e.g., an Export Certificate of Airworthi-
ness) issued by the Civil Aviation Authority of another
country." FAA Order 8130.2D ¶213a.
In this case, Chadburn relied on the Attestation, the heli-
copter’s records, and the fact that the helicopter had recently
undergone a comprehensive maintenance inspection, to con-
clude that the aircraft was safe for operation. Even when the
FAA issued a notice to stop the "improper issuance" of stan-
dard ACs to Alouette helicopters, it did not condemn prior
reliance on, nor forbid future consideration of, Attestation
documents. Aviation Admin., Notice No 8300.124, Certifica-
tion of Sud (Eurocopter) Alouette Helicopters (2006). If any-
thing, the FAA notice confirmed that it was within the FAA
inspector’s discretion to evaluate the relevance of an Attesta-
tion, stating: "The aircraft may be accompanied by an
‘ATTESTATION’ document that may appear to be equivalent
to an Export Certificate of Airworthiness or used as a ‘certify-
ing statement’ in meeting the regulations. These documents
must be reviewed to determine[ ] their true intent and useful-
ness in the certification process." Id. It is clear, therefore, that
the FAA did not "specifically prescribe[ ] a course of action"
that Chadburn failed "to follow," when he chose to credit the
Attestation for purposes of § 21.183(c). Berkovitz, 486 U.S. at
536.
B.
Holbrook argues, however, that the FAA’s decision to sus-
pend the helicopter’s AC illustrates that Chadburn lacked dis-
cretion to conclude that the helicopter conformed to its type
HOLBROOK v. UNITED STATES 15
certificate in the first place. This argument mistakes a subse-
quent allegation of error for a prior lack of discretion. But the
discretionary function exception applies "even if the discre-
tion has been exercised erroneously" and is alleged "to frus-
trate the relevant [regulatory] policy." Gaubert, 499 U.S. at
338 (Scalia, J., concurring in part and concurring in the judg-
ment); see 28 U.S.C. § 2680(a) (the discretionary function
exception applies "whether or not the discretion involved be
abused"); see also Indemnity Ins. Co., 569 F.3d at 181 (con-
cluding that it is "of no moment in our analysis" that the gov-
ernment employee characterized his action "as a mistake").
The inquiry is thus whether the discretion exists, not
whether in later litigation it is alleged to have been abused.
Were it otherwise, Congress’ intent to shield an agency’s dis-
cretionary decisions from FTCA lawsuits would be set at
naught. For purposes of the discretionary function exception,
we thus do not inquire into "the agent’s subjective intent in
exercising the discretion conferred by statute or regulation,"
but instead consider whether the "nature of the actions taken"
were "susceptible to policy analysis." Gaubert, 499 U.S. at
325.
As we have emphasized repeatedly, FAA certification pro-
cedures authorize aircraft inspectors to make discretionary
policy decisions. In Varig Airlines, the Supreme Court held
"that the acts of FAA employees in executing [the chosen
method of type certification] in accordance with agency direc-
tives are protected by the discretionary function exception."
467 U.S. at 820. The employees "were specifically empow-
ered to make policy judgments" and weigh such consider-
ations as "the need to maximize compliance with FAA
regulations, and the efficient allocation of agency resources."
Id. The airworthiness certification process is indistinguishable
from the type certification process in this regard. See
Roundtree v. United States, 40 F.3d 1036, 1039 (9th Cir.
1994) ("[T]aking certificate action as a method of assuring
that the federal aviation regulations will be followed ‘is an
16 HOLBROOK v. UNITED STATES
inherently policy-oriented decision that requires consideration
of social and economic policies.’").
In addition, where "established governmental policy . . .
allows a Government agent to exercise discretion, it must be
presumed that the agent’s acts are grounded in policy when
exercising that discretion." Gaubert, 499 U.S. at 324. In a
technical area such as aviation regulation, this presumption
prevents judges from imposing "a strata of tort law which
would be both capricious and confining in its impact." Tif-
fany, 931 F.2d at 279. Holbrook has given us no reason to
doubt that the conduct at issue was grounded in policy consid-
erations. FAA inspectors are conversant with aircraft mainte-
nance and operational records, aircraft inspection and
certification history, and complex FAA regulatory require-
ments. Chadburn testified that he drew on this range of profi-
ciency to determine that the aircraft was safe to fly. We are
ill-equipped to revisit under the FTCA policy decisions com-
mitted by Congress to those with greater expertise than courts
or to direct the appropriate exercise of executive policymak-
ing in this sensitive area. This case thus fits squarely within
Varig Airlines’s admonition against "judicial ‘second-
guessing’ of legislative and administrative decisions grounded
in social, economic, and political policy through the medium
of an action in tort." Varig Airlines, 467 U.S. at 814.
VI.
Holbrook’s complaint threatens to interfere with agency
discretion in yet another respect. His incentive to litigate
against the government resulted not from the allegedly negli-
gent certification of the aircraft, but from the adverse eco-
nomic consequences of the subsequent suspension of the AC.
Congress, however, has afforded the FAA broad discretion to
modify its certification decisions. Under 49 U.S.C. § 44709,
the FAA has authority to reinspect or reexamine a civil air-
craft at any time and "may issue an order amending, modify-
ing, suspending, or revoking" a certificate in the interest of air
HOLBROOK v. UNITED STATES 17
safety. 49 U.S.C. § 44709(a)-(b). If revocation of a previously
issued certificate exposed the FAA to a negligent certification
suit, the FAA would be reluctant to exercise its revocation
authority for fear of civil litigation. From the standpoint of air
safety, few things could be worse.
The Ninth Circuit has ruled that the FAA’s initial issuance
of supplemental type certificates was protected by the discre-
tionary function exception, despite a subsequent airworthiness
directive stating that the certificates were approved in error.
The court recognized that subjecting the FAA to liability
would "lead to absurd results." Gatx/Airlog Co. v. United
States, 286 F.3d 1168, 1179 (9th Cir. 2002). Namely,
"[a]lthough the FAA is charged with overseeing air safety, it
would be paralyzed by the prospect that it could be held liable
for making safety judgments in the approval process as a
result of modifying its prior certifications." Id. In sum, "the
notion that the FAA could in essence be held liable for a pol-
icy judgment that would save lives is antithetical to the discre-
tionary function exception." Id.
For that reason, the FAA must be free to engage in certifi-
cation error-correction without the threat of an FTCA suit.
Minimum aircraft safety standards evolve as technology
advances and knowledge accumulates. It is essential that the
FAA have the flexibility to adapt its certification decisions to
changed conditions and to designate an aircraft unsafe to fly
in light of new data. Because aircraft safety is not a static con-
cept, and aviation is a highly regulated field, aircraft manufac-
turers and owners are on notice that the FAA’s certification
authority creates a degree of economic risk that they must
bear. In Varig Airlines, the Supreme Court recognized that the
FTCA is an inappropriate vehicle to compensate for adverse
economic regulatory effects arising from FAA certification.
467 U.S. 797. To bind the FAA to its original certification
decisions through tort law’s deterrent power would contra-
vene Congress’ delegation of broad authority in this area to
the FAA, crimp the FAA’s leeway for reexamination afforded
18 HOLBROOK v. UNITED STATES
by 49 U.S.C. § 44709, and thereby constrain the Administra-
tor’s ability to protect the lives of pilots, attendants, and pas-
sengers in the air.
VII.
In view of the fact that the discretionary function exception
requires the dismissal of plaintiff’s action, we need not reach
the government’s contention that the misrepresentation excep-
tion to the FTCA applies as well.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.