Baird v. United States

SEYMOUR, Circuit Judge.

This is a consolidated appeal after dismissal of a Federal Tort Claims suit under 28 U.S.C. §§ 1346(b), 2671-2680,¹ against the United States for damages that resulted when a small aircraft crashed off the runway at the Paul Windle Airport in Kansas. The claimants are pilot Galen Baird, his employer Capitol Air Service, Inc., and its insurer Vanguard Insurance Co. (collectively “plaintiffs”). They claim that the Government published a misleading aeronautical chart that caused Baird to overestimate the length of a lighted runway on the evening of the crash. The district court dismissed for lack of subject matter jurisdiction after concluding that the chart’s issuance fell within the discretionary-function exception of 28 U.S.C. § 2680(a)², and that sovereign immunity therefore barred the claim. We affirm.

The parties do not dispute the material facts. At approximately 9:30 p. m. on July 27,1976, Baird and three passengers flew in Kansas from Ulysses to Greenburg. The group traveled in a Piper Seneca, a small aircraft. In making his landing approach at Greenburg’s Paul Windle Airport, Baird used the Wichita Sectional Aeronautical Chart (16th ed., June 17, 1976). The symbols

PAUL WINDLE

2230-L-28

appeared on the chart. According to the chart’s legend, “PAUL WINDLE” symbolized the name of the airport. The “2230” indicated “Elevation in feet [above sea-level].” The “28” described the “Length of longest runway in hundreds of feet.” Finally, the symbol “L” was to be interpreted according to the following legend:

“L — Lighting in operation Sunset to Sunrise

*L — Lighting available Sunset to Sunrise only on request (by radio call, letter, phone, telegram).

(L) — Lighting in operation part of the night and on request, or not operating thereafter. When facility or information is lacking, the respective character is replaced by a dash.”

Rec., supp. vol. II.

From the sectional chart, then, Baird could infer that runway lights would be on at Paul Windle Airport from sunset to sunrise. And in fact, they were. But Baird inferred, in addition, that the runway lights he saw from the air marked off Paul Windle’s longest runway whose length in hundreds of feet was reflected in the “28” symbol. Unfortunately, the lighted runway was not Paul Windle’s longest. It was a shorter one only 2,580 feet long. Moreover, that runway was lighted for only 2,176 of its 2,580 feet. The aircraft overran the runway and crashed. Two passengers were killed, the third and Baird severely injured.

The Wichita sectional chart expressly states that it was “published in accordance with Inter-Agency Air Cartographic Committee specifications.” Rec., supp. vol. II. This Committee, commonly known as the IACC, was created by agreement of the Department of Defense, the Federal Aviation Administration, and the Commerce Department. These three federal agencies intended the IACC to “develop the final detailed and authoritative specifications for the actual flight information materials (both textual and chart forms) which will constitute the official operative materials produced or used by Government agencies,” Rec., vol. IV, at 1, subject to the agencies’ review and approval. Rec., vol. IV, at 5. Once approved, the specifications would become binding. See id.³

In exercise of its authority, the IACC promulgated specifications, which pertinently provide:

“(5) The airport name shall be supported by the following coded data, positioned immediately above, following or below the airport name as indicated. A dash shall be substituted for the elevation, lighting, or runway length when not shown. U

“(e) Lighting symbolization shall indicate the availability of runway lighting to facilitate night landings, and shall be shown below the airport name following the elevation. Runway lighting is defined as a system of lights which defines the useable runway surface and includes lateral lights, referred to as runway lights which mark the sides of the runway, and threshold lights which mark the ends. Lighting in operation sunset to sunrise shall be indicated by the ' letter ‘L.’ Lighting available sunset to sunrise only on request (by radio call, letter, phone, telegram) shall be indicated by an asterisk (*) preceding the letter ‘L.’ Lighting on and operating part of the night and on request, or not operating thereafter, shall have the letter ‘L’ in parenthesis, e. g. (L). The absence of a night landing capability shall be indicated by a short dash in lieu of the letter ‘L.’

“(f) The runway length shall be positioned below the airport name following lighting. Runway length shall be the actual length of the longest active runway (pavement, end to end), including displaced thresholds, but excluding those areas designated as overruns. Runway length shall be shown to the nearest 100 feet using 70 as the division point; e. g., 59 shall be used to indicate a runway of 5,870.”

Rec., vol. V, at 94-95.

The “PAUL WINDLE/2230-L-28” symbols on the Wichita sectional chart are in literal compliance with the quoted specifications. Lights were on sunset to sunrise and the longest runway was 2,800 feet. Nevertheless, plaintiffs contend that the Government should be liable for the chart’s failure to tell pilot Baird that the longest runway to which the “28” symbol referred was not the runway to which the lighting symbol “L” referred, and that the shorter runway was lit for only 2,176 of its 2,580 feet. They argue that the discretionary-function exception of 28 U.S.C. § 2680(a) does not apply to the Government’s “accumulation, standardization, publication and distribution of inaccurate and misleading symbolic information” in the Wichita sectional chart. Appellants’ Brief at 1-2. We are compelled to disagree.

Section 2680(a), like every other exception in 28 U.S.C. § 2680, limits the Government’s waiver of sovereign immunity. It therefore poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction. See First National Bank v. United States, 552 F.2d 370, 374 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Smith v. United States, 546 F.2d 872, 875-76 (10th Cir. 1976); cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (time limitation on sovereign’s consent to suit; 28 U.S.C. § 2401(b)); Knapp v. United States, 636 F.2d 279 (10th Cir. 1980) (same; 28 U.S.C. § 2409a(f)). Thus, to test the district court’s jurisdictional dismissal, we must determine whether plaintiffs have challenged a “discretionary function or duty.” 28 U.S.C. § 2680(a). But we need not wallow too long in the quagmire of what makes a governmental function discretionary or nondiscretionary, see generally Allnutt v. United States, 498 F.Supp. 832, 835-36 (W.D.Mo.1980); Blessing v. United States, 447 F.Supp. 1160, 1167-85 (E.D.Pa.1978), for we believe plaintiffs’ claim falls squarely within the bar of section 2680(a).

Plaintiffs state their claim in terms of the Government’s publishing misleading information on the Wichita sectional chart. In essence, they argue the Government could have avoided ambiguity altogether by providing information on the chart to correlate the longest-runway symbol to the available-lighting symbol. But whatever ambiguity inheres in the chart’s symbols is traceable to the very terms of the specifications as developed by the IACC. See p. 438 supra. If there is a flaw in the chart, it is a flaw in the design of the IACC specifications themselves, for the chart’s symbols are the specifications incarnate. Plaintiffs do not controvert the Government’s contention that it has never undertaken

“to indicate on its sectional aeronautical charts which runway at every airport has lights, how much of each runway is lit or the length of each runway. It would be virtually impossible to provide all data available for a particular airport with any clarity without causing a clutter situation on the sectional chart.”

Rec., vol. I, at 27. For all that plaintiffs have asserted, they seek redress for the IACC’s decision to not require more detailed information on aeronautical charts such as the Wichita sectional chart. Their suit amounts to a challenge of the IACC’s decision on how much possible ambiguity it was willing to tolerate from lack of detail on sectional aeronautical charts, in favor of other policy goals such as chart clarity. The IACC could well have decided that its sectional charts would provide pilots certain minimum information, leaving to the pilot the responsibility of further inquiry for details from other sources available to him. In our view, this is precisely the kind of discretionary judgment that Congress in section 2680(a) meant to shield from suit: “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.” Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 967-968, 97 L.Ed. 1427 (1953). The principle upon which section 2680(a) rests appeared early and succinctly in our jurisprudence, when Chief Justice John Marshall said:

“It is scarcely necessary for the court to disclaim all pretensions to such jurisdiction [to review the executive’s discretionary functions]. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is . . . not to inquire how the executive, or executive officers, perform duties in which they have a discretion.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803).

Unlike cases relied upon by plaintiffs to support their claim, we do not have here a situation where negligence has attended the mechanical preparation, as distinguished from the substance of the design, of an aeronautical chart. See, e. g., Reminga v. United States, 631 F.2d 449, 451-52 (6th Cir. 1980) (TV tower’s ground location depicted inaccurately on chart); Allnutt v. United States, 498 F.Supp. 832, 835 (W.D. Mo.1980) (failure of chart to depict existing power transmission line). Neither is this a situation where use of the wrong lighting symbol caused the chart to expressly contradict conditions on the ground. See, e. g., Murray v. United States, 327 F.Supp. 835, 839, 841 (D.Utah 1971) (chart symbols and other information indicated lighting available throughout night or in any event upon aircraft’s circling field; pilot unable to get lights on even after circling field), aff’d, 463 F.2d 208 (10th Cir. 1972); Sullivan v. United States, 299 F.Supp. 621, 625 (N.D.Ala. 1968) (use of “L” symbol where “*L” called for lead pilot to expect lights on from sunset to sunrise, but when pilot arrived during night flight, he found lights off), aff’d, 411. F.2d 794 (5th Cir. 1969). Finally, we do not have a situation where negligence is confined essentially to the operation of a government facility or enterprise. See, e. g., Indian Towing Co. v. United States, 350 U.S. 61, 62, 76 S.Ct. 122, 123, 100 L.Ed. 48 (1955) (negligent repair and maintenance of government lighthouse); Smith v. United States, 546 F.2d 872, 874-75 (10th Cir. 1976) (negligent failure to post signs to warn of superheated thermal pools in Yellowstone National Park); Yates v. United States, 497 F.2d 878, 882 (10th Cir. 1974) (FAA air controller’s negligent failure, while directing air traffic, to provide adequate separation between aircraft); United Air Lines, Inc. v. Wiener, 335 F.2d 379, 392-98 (9th Cir.) (negligent operation and use of Air Force pilot training procedures that disregarded Air Force regulations), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964). The negligence in all these cases did not relate to discretionary or judgmental activities by the Government, so section 2680(a) did not apply.

From the last four cases cited above, the dissent concludes that the discretionary-function exception does not cover the IACC’s decision in this case on how detailed to make the runway lighting information in charts such as the Wichita sectional. In the dissent’s view, the lack of detail here amounts to an actionable breach of duty by the Government to warn of dangers. We do not believe, however, that the breach of duty in the course of the operational activities found actionable in those cases can be properly likened to the IACC’s discretionary design choices challenged here. It is important to note that plaintiff’s challenge goes only to the Wichita chart. And no defect is claimed in that chart apart from the IACC specifications to which it conforms. In actuality, the challenge applies to the design of all sectional charts. Viewed in its essence, plaintiffs’ claim is that the Wichita chart and all others like it should provide more detailed and hence more accurate information.

Simply put, plaintiffs challenge the Wichita sectional chart because it was too sketchy. This challenge thus goes to the heart of the IACC’s deliberative and judgmental activities in designing and approving the extent of detail to be included in aeronautical sectional charts versus the extent of detail left to be gleaned from other sources that the prudent pilot can be expected to consult. Such design and approval activities or choices by the Government fall within the discretionary-function exception and are not actionable under the Federal Tort Claims Act. See, e. g., Reminga v. United States, 631 F.2d 449, 454-56 (6th Cir. 1980) (activity in designing FAA regulations that do not require lighting or other warning markers on tower guy wires); Wright v. United States, 568 F.2d 153, 154 (10th Cir. 1977) (activity of Interior Department in designing approach roads to bridge), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978); First National Bank v. United States, 552 F.2d 370, 376 (10th Cir. 1977) (activity of Agriculture Department in devising warning labels for pesticides and investigating dangers connected with prior use of such pesticides); Miller v. United States, 522 F.2d 386, 387 (6th Cir. 1975) (failure to adopt more strict air safety regulations); Spillway Marina, Inc. v. United States, 445 F.2d 876, 878 (10th Cir. 1971) (policy decision to lower reservoir’s water level created alleged need to give warnings; held Government’s omission within discretionary-function exception and not negligence at operational level). See also Payton v. United States, 636 F.2d 132,146-47 (5th Cir. 1981); Green v. United States, 629 F.2d 581, 585-86 (9th Cir. 1980). Contrary to the dissent, we believe that the IACC’s activities here are more analogous to those in cases like Reminga, Wright, First National, Miller, and Spillway, than to the operational activities in Indian Towing, Smith, Yates, or United Air Lines. We must therefore affirm the district court’s dismissal of plaintiffs’ claim.⁴

Affirmed.

1 . Section 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. § 2674. The jurisdictional counterpart in section 1346(b) says:

“Subject to the provisions of chapter 171 of this title [28 U.S.C. §§ 2671-2680], the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

Id. § 1346(b).

2 . Section 2680(a) provides in pertinent part:

“The provisions of this chapter and section 1346(b) of this title 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.”

28 U.S.C. § 2680(a).

3 . More fully, the inter-agency agreement described the IACC’s purpose and authority as follows:

“PURPOSE

The purpose of the Inter-Agency Air Cartographic Committee (IACC) is twofold:

1. First, to develop those final chart and textual material specifications which will provide acceptable flight information materials for operation in the airspace and for adequately controlling operations in that airspace. Since there may be individual differences in acceptable final specifications for civil and governmental airspace operations, there may be more than one set of final specifications arrived at by the IACC, although it will be a prime objective to reduce or eliminate such differences. In every case, it is mandatory that the minimum standards referred to earlier be an integral part of the final specifications.

2. Second, to ensure that flight information materials necessary for the fulfillment of the operational requirements of users are produced at minimum cost and with no unnecessary duplication.

“SCOPE OF / UTHORITY The IACC is empowered to develop the authoritative final specifications for flight information materials. It is empowered to continuously review and update those final specifications on the basis of changing needs or roles of the governmental organizations concerned. It will be the intent of the IACC to foster the maximum desirable standardization of flight information materials, consonant with the operational requirements, of the user agencies. Whatever the final form of these textual and chart materials, they will constitute the authoritative information by means of which Governmental users operate in the airspace. Further, it will assist in the Government control of the operations in that airspace.

“INTENT AND DURATION

1. The IACC is an authoritative decision-making body whose members can speak for, and commit, their agencies to actions resulting from the ¡ACC’s continuing reviews and evaluations. All decisions of the IACC will be subject to the review and approval of the agencies concerned. Subsequent to this review and approval, the decisions of the IACC will be binding on the agencies concerned.”

Rec., vol. IV, at 1-2, 5.

4 . This dismissal does not foreclose all relief for plaintiffs. They are free to seek private relief through congressional action.