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March 20, 1984


The opinion of the court was delivered by: SIMMONS

This civil action arises out of an airplane crash in which the pilot of a twin engine Piper Aircraft, James E. Rulli, was killed. The resulting wrongful death claim is prosecuted on behalf of the pilot's widow and the estate of the deceased against the United States Federal Aviation Administration (FAA), under the Federal Tort Claims Act (FCTA), 28 U.S.C. § 1346(b) (1976). In short, Rulli contends that governmental negligence caused the crash.

 The airplane crash occurred on October 9, 1979, while the pilot was on a flight from the Allegheny County Airport in Pittsburgh, Pennsylvania . When the accident occurred the pilot was on an instrument flight on approach for landing. An instrument flight, as distinguished from a visual flight, is conducted through the use of cockpit instruments and ground navigational aids.

 Through its complaint, Rulli attributes the cause of the airplane crash to alleged defective instruments and navigational aids used in connection with the instrument approach flight and landing of aircraft at the Connellsville Airport. Specifically, Rulli alleges that the pilot's death was the direct and proximate result of the FAA's negligence in the inspection and maintenance of instruments and navigational aids. It is Rulli's contention that the instruments and navigational aids were either defective, non-operational, unreliable or insufficient to assure safe flying conditions. In addition, Rulli argues that the FAA, being charged with the responsibility of regulating navigational aids, had a duty to regulate said navigational aids in a manner so as to foster safe instrument flying conditions.

 At an initial pretrial conference of this case the Court granted the parties one-hundred and twenty days to complete discovery. At that time this Court set a pretrial briefing schedule for all pretrial motions. Subsequently, the government filed a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment and Rulli filed the appropriate response.

 After hearing the argument of counsel, the Court delayed ruling on the pretrial motions and granted Rulli an additional sixty days of discovery to develop alleged disputed issues of fact. Also, this Court permitted both parties to submit additional briefs, if necessary, in light of this Court's discovery order.

 Thereafter, Rulli requested and was granted an additional six week extension of time to conduct and complete discovery. Following the close of discovery, the government renewed its original motions for dismissal and summary judgment. At a subsequent pretrial conference, the parties waived oral argument on the motions and were granted thirty additional days to file briefs. With the exception of the government's renewed motion, to date, no additional pleadings, briefs, or affidavits have been filed following the close of discovery.

 As a basis for its Motion to Dismiss and Motion For Summary Judgment, the government contends that under the doctrine of sovereign immunity, Rulli's claims are not actionable and that this Court is accordingly without subject matter jurisdiction. Rulli contends that the government is amenable to suit under the FTCA by virtue of the FAA's regulatory authority over the national airspace system and its duty to inspect navigational aids. Alternatively, the government believes that under the facts of this case it is entitled to judgment as a matter of law. The government also argues that Rulli's complaint fails to state a claim for relief cognizable under Pennsylvania law. This Court need not consider the merits of this latter argument because the case will be disposed of on grounds hereinafter set forth.

 As a generally recognized proposition, the United States as a sovereign is immune from suit, except to the extent and according to the terms it consents to be sued. See generally, Honda v. Clark, 386 U.S. 484, 501, 18 L. Ed. 2d 244, 87 S. Ct. 1188 (1967); United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941). The extent to which the government has waived sovereign immunity has been spelled out by Congress in the Federal Tort Claims Act, 28 U.S.C. § 2680 (1948). This Act delineates the circumstances under which the government has consented to be sued for the negligent acts or omissions of its agents committed in the scope of their employment. Although under the FTCA the government gave its general consent to be sued in tort, it carved out a number of exceptions to its waiver of immunity. The exception which the government seeks to apply in this case is section 2680(a), which exempts from tort liability:

any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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.

 Id. at 2680(a).

 This provision is commonly called the discretionary function exception because it broadly exempts the government from tort liability in the execution or performance of any discretionary function or duty.

 As courts and commentators alike have recognized, there has been a great deal of difficulty in applying the discretionary function exception to a concrete set of facts. See generally Bernitsky v. United States, 620 F.2d 948 (3d Cir. Pa. 1980), cert. denied, 449 U.S. 870, 66 L. Ed. 2d 90, 101 S. Ct. 208 (1980). Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427, 73 S. Ct. 956 (1953). There the Court noted that what Congress sought to protect through immunity was "the discretion of the executive or the administrator to act according to one's judgment of the best course." Id. at 34.

 The Dalehite case was a wrongful death action resulting from an explosion of ammonium nitrate fertilizer stored in ships. The fertilizer was manufactured and distributed for foreign use pursuant to detailed plans and specifications developed by federal government officials and under the control and supervision of the government. The trial court found that the government was guilty of negligence in the drafting and explosive substance; in the mandated manufacturing process; and in its failure to police shiploading of the finish product. Dalehite, 346 U.S. at 23-24. The Supreme Court did not disturb the trial court's finding of negligence. But it ruled however, that since each of the acts committed by the government were discretionary in nature, the conduct could not be the basis of liability under the FTCA.

 Framing judicial guidelines for determining the boundaries of the discretionary function exception, the Dalehite Court declared that:

it is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that "discretionary function or duty" that cannot form the basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of the government in accordance with official directions cannot be actionable.

 Id. at 35-36. Under this reasoning, the Supreme Court found that the decisions held culpable by the trial court were committed at the planning level rather than the operational level and involved considerations of practicability of the Government's program, and as such, were immunized. Id. at 42.

 Following Dalehite lower courts have drawn varying distinctions in applying the exception. Some courts have focused primarily on the policy judgment aspect, while others have made distinctions between conduct at the planning level and conduct at the operational level. See Bernitsky, 620 F.2d at 951. In the Third Circuit, the "litmus test" is "not merely whether judgment was exercised but also whether the nature of the judgment called for policy considerations." See Griffin v. United States, 500 F.2d 1059, 1064 (3d Cir. 1974).

 Griffin involved an action brought against the United States for catastrophic injuries sustained from a defective live-virus polio vaccine ingested by the plaintiff. The live virus was administered as part of a program to secure immunization against polio through mass administration of the polio vaccine. Pursuant to federal regulations, the government had a duty to inspect, and did inspect and approve for release the defective batch of vaccine ingested by the plaintiff.

 The plaintiff in Griffin did not challenge the government's decision to approve a live-virus immunization program nor did he challenge the regulation which established the standard against which the vaccine would be measured. Admittedly, "these were matters involving balancing of policy considerations in advancing the public interest" and were immune from liability. Id. at 1064. The plaintiff's sole challenge was to the manner in which the regulation was implemented, contending that the government failed to comply with federal standards because the neurovirulence exceeded one of five criteria set out in the regulations.

 Federal regulations required that a vaccine batch be approved for release only if the neurovirulence of the batch test lot not exceed a certain reference strain and set out five criteria to be considered as evidence of neurovirulence. Although the Griffin court interpreted the regulation in a way that would permit the government to weigh the criteria according to its evaluation of how accurately each criterion reflected neurovirulence, as urged by the government, it ruled that such a comparative analysis was an exercise of professional or scientific judgment. Since professional or scientific judgment was not the type of judgment contemplated by the discretionary function exception, the government could be held liable under the FTCA, if it exercised that judgment negligently.

 At issue in Griffin was a scientific, not a policy-making decision. "It was not the judgment of a policy-maker promulgating regulations by balancing competing policy considerations . . .," that was at stake, but the agents responsibility was limited to merely executing policy judgment. Id. at 1066.

 It follows, therefore, that where the tortious governmental conduct involves the execution, implementation or performance of established policies or procedure, a claim will lie under the FTCA. On the other hand, where the tortious conduct involves policy considerations or judgment regarding the nature and scope of a regulatory scheme, the conduct is immunized from judicial review by virtue of the discretionary function exception.


 Rulli's claims in this case are broad challenges to the manner in which the FAA regulated the national airspace system. Upon close scrutiny, it appears that the claims do however fall into two distinct categories. The first category of challenged activity is to the scope of the FAA's regulation of navigational aids, i.e. the standards and regulations developed by the agency to govern the performance of its official duties. The second category of challenged activity is to the manner in which the FAA implemented its regulatory authority, i.e., whether the FAA's actions were consistent with federal regulations.

 The navigational aids referred to in this case are facilities used in aid of air navigation, which includes lights, any apparatus or equipment for disseminating weather information, signaling, radio direction location, and radio communication. Navigational aids also include any structure or mechanism for guiding or controlling in flight landing or take-off of an aircraft. A nondirectional beacon (NDB) is a navigational aid which transmits radio signals 360 degrees, similar to an AM band radio station. The signal of a NDB is received by a direction-sensitive antenna in the aircraft which indicates on a cockpit instrument the direction of the NDB. To pick ...

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