Beech's claim that the issuance of ADs upon request by aircraft manufacturers is statutorily mandated is not supported by any decided case. Its only argument is that 1) since by statute the FAA is required to promote air safety through the promulgation of minimum safety standards, and 2) since neither the statute nor the regulations speaks in terms of "discretion", that no such discretion exists. However, a reading of the plain language of 49 U.S.C. § 1421, the enabling statute, and 14 C.F.R. §§ 21.277 and 39, the applicable regulations, makes it clear that safety regulations like the AD are within the FAA's discretion. To hold otherwise would effectively give aircraft manufacturers absolute power with regard to safety modifications like Airworthiness Directives.
The cases construing 28 U.S.C. § 2680(a) hold overwhelmingly that agency regulation power such as the one authorizing ADs falls at the "planning" or "policy" level of decisionmaking. Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427, 73 S. Ct. 956 (1953); Merklin v. United States, 788 F.2d 172 (3d Cir. 1986); Baxley v. United States, 767 F.2d 1095 (4th Cir. 1985). The leading cases in this area are Dalehite, and United States v. Varig Airlines, 467 U.S. 797, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984), and Beech's attempts to distinguish them must fail. The principles enunciated in Dalehite over three decades ago continue to be applied with great force in the recent cases including the ones involving the FAA like Varig and Baxley. The discretionary function "includes determinations made by . . . administrators in establishing plans, [and] specifications . . . Where there is room for policy judgment and decision there is discretion." Dalehite, 346 U.S. at 35-36.
Varig and Baxley have applied these principles to situations quite similar to the instant case. In Varig, a consolidation of two cases, plaintiffs sued the U.S.A. for the FAA's "wrongful issuance" of a safety compliance certificate when it was subsequently discovered that the cause of the airplane crashes involved was defective equipment. In Baxley the claim was that the FAA was negligent in not having yet promulgated proposed regulations to govern ultralight aircraft at the time of the accident in question. In both cases the courts held that it was not shown that the regulation sought was statutorily mandated, but was, in fact, a policy decision left to the discretion of the FAA. Similarly, here, Beech has failed to show why the issuance of an AD is any different from the policy decisions of Varig and Baxley. I find that the decision to issue, on a nationwide basis, an Airworthiness Directive amending a type certificate and effectively grounding all aircraft of a certain model to be a policy decision and not a ministerial act.
If the FAA were required to issue an AD every time one was requested, then the entire notice-and-comment rulemaking procedure established by the Administrative Procedure Act would be rendered superfluous in this area. This is not the result which Congress had in mind when enacting the FTCA; the purpose in enacting 28 U.S.C. 2680(a) was to encourage agency freedom in making policy without the spectre of second-guessing by the judiciary.
Thus, Beech's claim against the United States of America must be dismissed pursuant to 28 U.S.C. 2680(a).
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