FAA's role in subsequent inspections of non-federally owned navigational facilities was set out in FAA Internal Order No. 6700.10B, which has since been supplanted by FAA Internal Order No. 6700.10C.
Internal Order No. 6700.10B, states that its purpose "is to provide guidance on the ground inspection of non-federally owned navigational aid facilities." It also provides that the NDB facilities "shall be ground inspected at least once annually in accordance with" federal regulations. Internal Order No. 6700.10C, which cancelled Internal Order No. 6700.10B, continued in effect the annual inspection requirement of NDB facilities.
In addition to that required by regulation, the FAA's uncontroverted affidavits indicates that its personnel frequently gave assistance and engineering expertise to owners of non-federally owned navigational facilities, including ground and flight testing in response to complaints about a facilities performance.
Construed broadly in Rulli's favor and reading every favorable inference into the pleadings, Rulli's claims regarding the inspection and commissioning of the non-federally owned navigational facility at Connellsville Airport, are twofold. One, Rulli challenges the frequency of the FAA inspections and two, Rulli challenges FAA's manner of conducting the inspections.
The government contends, and this Court agrees, that the timing and frequency of FAA inspections of non-federally owned navigational aids are matters of policy, calling for determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Certainly, the decision of when and how to conduct inspections that are required by federal regulations are matters which involves considerations of public policy, calling for a balance of such factors as cost of the Government program against the potential benefit. Griffin, 500 F.2d at 1064.
In this case, it is important to note that FAA's decision to make annual inspections of NDBs at non-federally owned facilities was made at the planning stage rather than the operational level. Internal Order No. 6700.10C, which was promulgated by the "Department of Transportation Federal Aviation Administration," provides that the contents of the order shall be "distributed to [the] branch level in Airway Facilities Service, Office of Flight Operations, and Air Traffic Service in Washington headquarters; to [the] branch level in Airway Facilities, Flight Standards, and Air Traffic divisions in regional and areas office; and to all Airway facility sector offices." This manner of distribution suggests a planning level decision to make annual inspections. Such high-level decision-making, while not conclusive, is strong evidence that the decision-making process involved immunized discretionary judgment.
Further, the FAA's internal orders appear to be the direct product of judgment and policy considerations. This can be seen on the face of Internal Order No. 6700.10C. Referring to its predecessor No. 6700.10B, Internal Order No. 6700.10C states that "as a result of [a] review of the program and analysis of inspection findings, it has been determined that schedules can be adjusted for greater economy with no adverse affect on facility performance." Thereafter, the internal order sets out a new inspection schedule.
Against this background, there can be little doubt that the frequency and standard of inspections called for by the FAA, were matters decided at the planning stage and involved the discretionary initiation of programs and activities by the FAA. This type of decision-making process is far removed from a day-to-day perfunctory type task. Thus, to the extent that the complaint can be construed to allege governmental negligence growing out of FAA's promulgation of standards and frequency of inspections, the FAA is immune from liability by virtue of the discretionary function exception to the FTCA. For this reason, these claims must also be dismissed for want of jurisdiction on the authority of Griffin.
Such a conclusion, however, does not completely resolve this case. Under the facts of this case, the discretionary function exception does not immunize liability based on an omission to inspect, where there exists a duty to inspect, or negligence in the actual performance of an inspection, regardless of whether the inspection is required. The exception does not shield the government from liability based on its negligence in licensing, certifying or commissioning; nor negligence premised on the failure to revoke a license, to decertify or to decommission, where a duty exists to do the same. While this Court might conceive of factual circumstances where these sort of activities may involve the balancing of competing policy considerations, and hence may be labeled "discretionary judgment", under the facts of this case, there was no policy weighing discretion involved.
In Blessing v. United States, 447 F. Supp. 1160 (E.D. Pa. 1978), the trial court addressed the question of when an inspection would call for discretion that would warrant dismissal under Griffin, and when it would not. In Blessing employees of private industrial plants sued the government for personal injuries sustained as a result of a negligent inspection conducted by agents of the Occupational Safety and Health Administration (OSHA). There the plaintiffs alleged that OSHA had negligently inspected the plant prior to their injuries and had failed to examine, and hence discover, the defect that caused their injuries.
The Blessing court discussed two hypothetical factual circumstances to illustrate the distinction between an inspection involving discretionary judgment and one that did not. In the first hypothetical the court noted that:
it might be shown that noninspection of the allegedly defective equipment was the result of an authorized decision to limit the scope of inspections due to limitations of manpower, time, or the like. Such decisions establishing priorities would likely be found to be discretionary in nature . . . because enforcement decisions along these lines would involve balancing policy considerations -- e.g., given limited resources, whether to conduct spot inspections at many plants or comprehensive inspections at just a few. These sorts of decisions would directly affect the feasibility or practicability of the government's inspection program. . . .
Id. at 1178-80 (footnotes omitted). The Blessing court believed that such decisions required considerations that were primarily political, social and economic in nature and were not the type of determinations that courts are permitted to scrutinize under negligence standards.
In its second hypothetical, the Blessing court went on to point out that, on the other hand:
it is possible that policy decisions were made to inspect the equipment . . . or . . . the instructions under which the inspectors operated might not have been such that as a non-policy professional matter it would have been negligent to omit inspections of the equipment. Indeed, it is conceivable that "discretion" was permitted in structuring the inspections, but that it was professional discretion; that is, discretion to examine only those things that would be considered, as a professional matter and under objective standards, more likely to cause injury.