[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13544 ELEVENTH CIRCUIT
FEBRUARY 11, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00119-CV-HL-7
UNITED STATES AVIATION UNDERWRITERS, INC.,
a New York corporation, Manager, United States
Aircraft Insurance Group,
HAULERS INSURANCE COMPANY, INC.,
a Tennessee corporation,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(February 11, 2009)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
This case arises from the crash of a twin-engine aircraft in southern Georgia
on March 27, 2003. United States Aviation Underwriters, Inc. and Haulers
Insurance Company, Inc. (collectively, “Insurers”) sued the United States under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1), for damages to the
aircraft. The Insurers appeal the district court’s May 22, 2008 Order granting
summary judgment on behalf of the United States on the grounds that the Insurers’
claims fall within the discretionary function exception to the FTCA’s waiver of
sovereign immunity.
The Insurers contend that the Aviation Weather Center, which is a
meteorological watch office of the National Weather Service, has a non-
discretionary duty to issue Significant Meteorological Information (“SIGMET”)
warnings whenever sudden severe clear air turbulence (“CAT”) “is occurring, or
expected to occur.” The Insurers rely on National Weather Service Instruction 10-
811 from the National Weather Service instruction manual for meteorologists to
support this claim.
The United States concedes that, once the National Weather Service
forecasts moderate to severe turbulence, the United States government has no
discretion to decline to provide that information to pilots. However, the United
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States contends that the act of forecasting CAT is discretionary conduct that falls
outside of the discretionary function exception.
By contending that the Insurers’ claims are governed by the discretionary
exception to the FTCA, the United States factually attacks our subject matter
jurisdiction. We review de novo factual attacks on the existence of subject matter
jurisdiction. See Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997). We
review “the facts in the light most favorable to the plaintiff.” Cranford v. United
States, 466 F.3d 955, 957 (11th Cir. 2006) (quotation omitted), cert. denied, 128 S.
Ct. 42 (2007).
The discretionary function exception excludes from the FTCA’s broad
waiver of sovereign immunity “[a]ny 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.” 28 U.S.C. § 2680(a). When the discretionary
function exception to the FTCA applies, no federal subject matter jurisdiction
exists. United States v. Gaubert, 499 U.S. 315, 334, 111 S. Ct. 1267, 1280 (1991)
(holding that claims are barred by the discretionary function exception).
Although a precise definition of “discretionary” does not exist, the Supreme
Court has characterized the ultimate question as whether the “challenged acts . . .
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are of the nature and quality that Congress intended to shield from tort liability.”
United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 813,
104 S. Ct. 2755, 2764 (1984). The discretionary function exception is intended to
prevent the courts from “‘second-guessing’ . . . administrative decisions grounded
in social, economic, or political policy through the medium of an action in tort.”
Id. at 814, 104 S. Ct. at 2765.
In Gaubert, the Supreme Court set out a two-part test to guide courts in
determining whether the discretionary function applies. See Gaubert, 499 U.S. at
322, 111 S. Ct. at 1273. First, the court must examine whether the challenged
conduct is “discretionary in nature” or whether the conduct “involve[s] an element
of judgment or choice.” Id. (quoting Berkovitz et al. v. United States, 486 U.S.
531, 536, 108 S. Ct. 1954, 1958 (1988)) (internal quotation marks omitted).
Second, the court must decide “whether that judgment is of the kind that the
discretionary function exception was designed to shield,” i.e., whether it is
“susceptible to policy analysis.” Id. at 322, 325, 111 S. Ct. at 1273, 1275. A
function is non-discretionary “if a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow” where “the employee has
no rightful option but to adhere to the directive.” Id. at 322, 111 S. Ct. at 1273
(internal quotation marks omitted). “If the decision is inherently one allowing
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discretion, we presume that the act was grounded in policy whenever that
discretion is employed.” OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir.
2002).
Here, as the United States contends and the district court found, forecasting
CAT is discretionary conduct that the discretionary function exception shields
from liability. As the United States concedes, National Weather Service
Instruction 10-811 requires that the Aviation Weather Center issue a SIGMET
warning once the meteorologists determine that severe CAT is occurring or is
likely to occur. However, the underlying determination of whether severe CAT is
occurring is discretionary.
The evidence demonstrates that forecasting weather, and specifically
distinguishing between moderate and severe air turbulence, requires subjective
evaluation by the meteorologist. The meteorologist must weigh a number of
factors and a range of available data. Because the meteorologist must exercise his
judgment when identifying weather patterns, forecasting “involve[s] an element of
judgment or choice.” Gaubert, 499 U.S. at 322, 111 S. Ct. at 1273. That element
of judgment satisfies the first part of the discretionary function test.
Moreover, we agree with the district court that weather forecasts are the type
of policy decisions that the discretionary function exception protects from liability
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under the FTCA. As we recognized in Monzon, issuing weather warnings
implicates policy concerns. Monzon v. United States, 253 F.3d 567, 572 (11th Cir.
2001) (per curiam). These policy concerns include the cost and budgetary policy
considerations in forecasting and the dangers of over warning. Id. “A weather
forecast is a classic example of a prediction of indeterminate reliability, and a place
peculiarly open to debatable decisions, including the desirable degree of
investment of government funds and other resources.” Brown v. United States, 790
F.2d 199, 204 (1st Cir. 1986). As such, weather forecasting satisfies the second
part of the discretionary function exception as well.
CONCLUSION
Upon review of the record and the parties’ briefs, we discern no reversible
error. Accordingly, we affirm the district court’s grant of summary judgment on
behalf of the United States.
AFFIRMED.
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