Mutchler v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARY MUTCHLER, as personal

representative of the estate

of David Bradley Mutchler,

ASHLEY MUTCHLER,

CODY MUTCHLER,

JOSHUA MUTCHLER,

and PRESLEY MUTCHLER,

Plaintiffs,

v. Case No. 8:20-cv-630-VMC-AAS

UNITED STATES OF AMERICA,

Defendant.

/

ORDER

This matter comes before the Court upon consideration of

Defendant United States of America’s Motion to Dismiss, or,

in the Alternative, for Summary Judgment (Doc. # 52), filed

on March 8, 2021. Plaintiffs Mary Mutchler, Ashley Mutchler,

Cody Mutchler, Joshua Mutchler, and Presley Mutchler

responded on April 20, 2021. (Doc. # 69). The United States

replied on May 3, 2021. (Doc. # 72). For the reasons set forth

below, the Motion to Dismiss is granted.

I. Background

This case stems from a March 4, 2017, aircraft crash

that killed the only two individuals on board, David Bradley

Mutchler, and his flight instructor, Robert Redfern. (Doc. #

10 at ¶¶ 18-19). Plaintiffs are Mutchler’s widow and

children. (Doc. # 10 at ¶ 9).

A. March 4, 2017, Aircraft Crash

Mutchler owned a Beechcraft Duke aircraft. (Doc. # 52-2

at ¶ 7; Doc. # 54 at 62:16-17). To maintain his aircraft

insurance coverage, Mutchler’s insurer required him to

complete biennial ground and flight training. (Doc. # 52 at

¶ 1). For this purpose, his insurer approved the use of Access

Flight Training Services, a company offering “training to

aircraft owner-pilots.” (Id. at ¶ 2; Doc. # 52-2 at ¶¶ 1-2).

In March 2017, Mutchler hired Redfern, who had worked as an

independent contractor for Access Flight from 2011 until his

death, and “regularly instructed pilots.” (Doc. # 52 at ¶¶ 3,

5; Doc. # 10 at ¶¶ 15-18; Doc. # 52-2 at ¶¶ 4-5).

On their second day of flight training, Mutchler and

Redfern departed Sarasota Airport. (Doc. # 10 at ¶ 18). The

radar data initially “showed a flight track consistent with

air work performed during flight training.” (Id.). However,

“following an uncontrolled descent, the aircraft impacted

terrain and a post-crash fire followed. Both aircraft

occupants perished.” (Id. at ¶ 19). Plaintiffs contend that

Redfern’s “inappropriate use of non-standard stall recovery

techniques, emergency procedures, and control inputs” caused

the crash, while the United States maintains that there is a

lack of record evidence as to the cause of the crash. (Id. at

¶ 20; Doc. # 52 at ¶¶ 67-69). Redfern was ninety years old at

the time of the crash. (Doc. # 10 at ¶ 113).

B. Redfern’s Pilot Certificates

Plaintiffs are not suing Redfern. (Doc. # 10). Instead,

Plaintiffs posit that the United States should be held liable

for Mutchler’s death because it acted negligently with regard

to the issuance of two of Redfern’s pilot certificates. (Id.

at ¶¶ 114, 125; Doc. # 69 at 11). The certificates at issue

– a second-class medical certificate and flight instructor

certificate – are both regulated by the Federal Aviation

Administration (“FAA”). (Doc. # 10 at ¶¶ 21-104).

The FAA has delegated to aviation medical examiners –

physicians designated by the Federal Air Surgeon – the role

of issuing medical certificates. (Id. at ¶ 30; Doc. # 52-4 at

¶ 16). Plaintiffs concede that aviation medical examiners are

not federal government employees. (Doc. # 52 at ¶ 12; Doc. #

69 at 11). Dr. Joseph Flynn, one such medical examiner, issued

Redfern’s second-class medical certificate in October 2014.

(Doc. # 52 at ¶ 7; Doc. # 52-3). That “medical certificate

expired on October 31, 2016, more than four months before

the” crash in question. (Doc. # 52 at ¶ 8).

Under the relevant version of FAA regulations, “[n]o

person may exercise the privileges of a medical certificate

if the medical certificate has expired.” (Id. at ¶ 9 (citing

C.F.R. § 61.2(a)(5) (2009)). However, a flight instructor

need not possess a medical certificate in all circumstances,

such as when he or she is not acting as the pilot in command.

(Id. at ¶ 10 (citing 14 C.F.R. § 61.23(b)(5) (2013)). Although

Redfern did not possess a valid medical certificate at the

time of the crash, Plaintiffs contend that a number of his

prior existing medical conditions, including “chronic kidney

disease stage II, an obstructing lung abscess, anemia of

chronic disease, venous insufficiency, lower extremity edema,

malignant neoplasm of the lung, pneumonia, abnormal

transaminase/LDH, leukocytosis, diabetes mellitus, possible

dementia, and impaired fasting glucose,” among other things,

precluded Dr. Flynn from issuing Redfern’s 2014 certificate

in the first place, and required the FAA to reverse Dr.

Flynn’s certification. (Doc. # 10 at ¶¶ 84-91).

Also at issue is the FAA’s issuance of Redfern’s flight

instructor certificate. (Id. at ¶ 125). Flight instructor

certificates are “issued by the FAA [and] are valid for

[twenty-four] months from the month of issuance.” (Doc. # 52

at ¶ 36 (citing 14 C.F.R. § 61.19(d) (2009)). Once a pilot

has obtained a flight instructor certificate, there are

various ways to renew said certificate. (Id. at ¶ 37 (citing

14 C.F.R. § 61.197(a) (2009)).

Redfern was a certified flight instructor since at least

1978. (Id. at ¶ 40). For a number of years thereafter, William

Edwards, an aviation safety inspector employed by the FAA,

renewed Redfern’s flight instructor certificate. (Id. at ¶

46). Redfern’s flight instructor certificate was last renewed

by Edwards in November 2015, almost two years before the

crash, and provided for an expiration date of December 31,

2017. (Id. at ¶ 51). As previously noted, “Redfern could be

a flight instructor without holding a medical certificate.”

(Id. at ¶ 64 (citations omitted)). According to Plaintiffs,

Edwards negligently renewed Redfern’s flight instructor

certificate “for years without verifying his eligibility”

under the relevant FAA regulations. (Doc. # 10 at ¶ 105).

C. Procedural History

Plaintiffs initiated this suit in the Jacksonville

Division of this District on February 28, 2020. (Doc. # 1).

On March 18, 2020, the Court transferred the case to the Tampa

Division, and the case was reassigned to the undersigned.

(Doc. # 8). On April 15, 2020, Plaintiffs filed an amended

complaint, alleging the following claims against the United

States: negligence of the FAA – airman medical certificate

(Count I), and negligence of the FAA – airman certificate

(Count II). (Doc. # 10). The United States filed an answer on

May 4, 2020, and then an amended answer on May 22, 2020. (Doc.

## 13; 20). Following the entry of the Court’s case management

and scheduling order, the parties proceeded with discovery.

(Doc. # 15).

On March 8, 2021, the United States moved to dismiss the

amended complaint for lack of subject-matter jurisdiction,

arguing that the United States has not waived sovereign

immunity as to these claims. (Doc. # 52). In the alternative,

the United States moves for an entry of summary judgment in

its favor on the basis that “Plaintiffs cannot prove that any

act or omission of the FAA caused the crash.” (Id. at 3).

Plaintiffs responded on March 29, 2021, and then filed an

amended response on March 30, 2021. (Doc. ## 61; 63). Because

Plaintiffs’ amended response exceeded the page limit and

included a statement of material facts as an exhibit, rather

than within the confines of the page limit, the Court directed

Plaintiffs to amend the amended response. (Doc. # 68).

Plaintiffs filed their second amended response on April 20,

2021 (Doc. # 69), and the United States replied on May 3,

2021. (Doc. # 72). The Motion is now ripe for review.

II. Legal Standard

Federal courts are courts of limited jurisdiction.

Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).

“[B]ecause a federal court is powerless to act beyond its

statutory grant of subject matter jurisdiction, a court must

zealously insure that jurisdiction exists over a case[.]”

Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).

Motions to dismiss for lack of subject-matter

jurisdiction pursuant to Federal Rule of Civil Procedure

12(b)(1) may attack jurisdiction facially or factually.

Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir.

2003). When the jurisdictional attack is based on the face of

the pleadings, the Court merely determines whether the

plaintiff has sufficiently alleged a basis for subject-matter

jurisdiction, and the allegations in the plaintiff’s

complaint are taken as true for purposes of the motion.

Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).

Conversely, with factual attacks, the Court assesses the

arguments asserted by the parties and the credibility of the

evidence presented. See Garcia v. Copenhaver, Bell, &

Assocs., 104 F.3d 1256, 1260-61 (11th Cir. 1997). “In

resolving a factual attack, the district court may consider

extrinsic evidence[.]” Morrison, 323 F.3d at 924 n.5. “A

plaintiff bears the burden of demonstrating that the Court

has jurisdiction.” Alvey v. Gualtieri, No. 8:15-cv-1861-VMC-

AEP, 2016 WL 6087874, at *2 (M.D. Fla. Oct. 18, 2016).

III. Analysis

The United States argues that the amended complaint

should be dismissed for lack of subject-matter jurisdiction

because: (1) “[t]he United States is not liable for the

negligence of either Dr. Flynn or Redfern because they are

not government employees” and (2) “[t]he United States has

[not] waived sovereign immunity for Plaintiffs’ challenge to

the FAA’s aeromedical and flight instructor certification

activities.” (Doc. # 52 at 2). Alternatively, the United

States moves for summary judgment on the basis that Plaintiffs

cannot prove that the FAA caused the alleged injuries. (Id.).

The Court will begin by addressing the Motion to Dismiss.

“Plaintiffs cannot sue the United States unless the

United States unequivocally has waived its sovereign

immunity.” Foster Logging, Inc. v. United States, 973 F.3d

1152, 1157 (11th Cir. 2020) (citing Zelaya v. United States,

781 F.3d 1315, 1321 (11th Cir. 2015)). Under the Federal Tort

Claims Act (“FTCA”), the United States has waived sovereign

immunity for claims 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.

28 U.S.C. § 1346(b)(1). However, “[t]he FTCA was not intended

to create new causes of action; nor was it intended as a means

to enforce federal statutory duties. . . . Instead, Congress’s

chief intent in drafting the FTCA was simply to provide

redress for ordinary torts recognized by state law.” Howell

v. United States, 932 F.2d 915, 917 (11th Cir. 1991) (internal

citations omitted).

Here, the United States argues that it cannot “be held

liable for the alleged negligent acts of Dr. Flynn or Redfern

because they were not federal employees.” (Doc. # 52 at 15).

Plaintiffs respond, however, that they “have not alleged that

Dr. Flynn or Redfern were employees of the government.

Instead, Plaintiffs are seeking to hold [the United States]

directly liable for its own negligence, rather than

vicariously liable for the negligence of Dr. Flynn or

Redfern.” (Doc. # 69 at 11). This represents a marked change

from Plaintiffs’ amended complaint, which “demand[s] judgment

against Joseph D. Flynn, D.O. for all damages permitted by

law” in both Counts I and II. (Doc. # 10 at ¶¶ 124, 134).

Given that Plaintiffs effectively concede that the United

States cannot be held liable for the actions of either Dr.

Flynn or Redfern, the Court turns to the United States’

argument that it has not waived sovereign immunity under the

discretionary-function exception. (Doc. # 52 at 2).

“Congress . . . has carved out certain exceptions to

[the FTCA’s] limited waiver [of sovereign immunity],

including the discretionary-function exception[.]” Foster

Logging, 973 F.3d at 1157. The discretionary-function

exception provides that the FTCA’s waiver of sovereign

immunity does not apply to “[a]ny claim . . . based upon the

exercise or performance or the failure to 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. (quoting 28 U.S.C. §

2680(a)) (emphasis omitted). “In short, the discretionary

function exception serves to preserve sovereign immunity for

any claim that is based on a federal agency or employee’s

performance or nonperformance of a discretionary task, even

if, in so acting, the agency employee may have abused his [or

her] discretion.” Zelaya, 781 F.3d at 1329.

The discretionary-function exception “must be strictly

construed in favor of the United States.” JBP Acquisitions,

LP v. U.S. ex rel. Fed. Deposit Ins. Corp., 224 F.3d 1260,

1263 (11th Cir. 2000) (internal quotation marks and citations

omitted). This exception “marks the boundary between

Congress’ willingness to impose tort liability upon the

United States and its desire to protect certain governmental

activities from exposure to suit by private individuals.”

United States v. S.A. Empresa de Viacao Aerea Rio Grandense

(Varig Airlines), 467 U.S. 797, 808 (1984).

Courts must apply a two-part test “in determining

whether challenged conduct falls within the discretionary-

function exception.” Foster Logging, 973 F.3d at 1157.

“First, a court examines the nature of the challenged conduct

or act to determine whether it is ‘discretionary in nature,’

meaning that it involves ‘an element of judgment or choice.’”

Id. (quoting United States v. Gaubert, 499 U.S. 315, 322

(1991)). “In determining whether judgment or choice is

present in the particular conduct at issue, the inquiry

focuses on ‘whether the controlling statute or regulation

mandates that a government agent perform his or her function

in a specific manner.’” Zelaya, 781 F.3d at 1329 (quoting

Hughes v. United States, 110 F.3d 765, 768 (11th Cir. 1997)).

“If a federal statute, regulation, or policy

specifically prescribes a course of action for an employee to

follow, the Government will have failed to show that the

action at issue allowed for the employee’s exercise of

judgment or choice because, in that case, ‘the employee ha[d]

no rightful option but to adhere to the directive.’” Id. at

1329-30 (quoting Gaubert, 499 U.S. at 322).

“Second, if the challenged conduct involves an element

of judgment or choice, a court then determines ‘whether that

judgment is of the kind that the discretionary function

exception was designed to shield.’” Foster Logging, 973 F.3d

at 1157 (quoting Gaubert, 499 U.S. at 322-23). “A particular

decision will be the kind protected by [this] exception if it

is the type of decision that one would expect to be inherently

grounded in considerations of policy.” Zelaya, 781 F.3d at

1330 (citing Autery v. United States, 992 F.3d 1523, 1530-31

(11th Cir. 1993)). “When established governmental policy, as

expressed or implied by statute, regulation, or agency

guidelines, allows a Government agent to exercise discretion,

it must be presumed that the agent’s acts are grounded in

policy when exercising that discretion.” Gaubert, 499 U.S. at

324. “In making this determination, [courts] do not focus on

the subjective intent of the government employee or inquire

whether the employee actually weighed social, economic, and

political policy considerations before acting. . . . Instead,

[courts] focus on the nature of the actions taken and on

whether they are susceptible to policy analysis.” Cohen v.

United States, 151 F.3d 1338, 1341 (11th Cir. 1998) (internal

quotation marks and citations omitted). The Court thus turns

to whether Plaintiffs’ claims satisfy both prongs of the

discretionary-function exception test.

A. Second-Class Medical Certificate

In Count I, Plaintiffs allege that Dr. Flynn, as well as

the FAA and its employees acted negligently with respect to

their issuance and review of Redfern’s second-class medical

certificate. (Doc. # 10 at ¶¶ 114-24). Because Plaintiffs no

longer challenge Dr. Flynn’s conduct, and the FAA has

delegated the issuance of medical certificates to aviation

medical examiners such as Dr. Flynn, the Court need only

determine whether the FAA’s role in reviewing or reversing

the issuance of medical certificates falls within the

discretionary-function exception. See (Doc. # 10 at ¶¶ 118,

122; Doc. # 52 at ¶ 7); see also 14 C.F.R. § 67.407 (“Subject

to limitations in this chapter, the delegated functions of

the Federal Air Surgeon to examine applicants for and holders

of medical certificates for compliance with applicable

medical standards and to issue, renew, and deny medical

certificates are also delegated to aviation medical examiners

and to authorized representatives of the Federal Air Surgeon

within the FAA.”); (Doc # 52-4 at ¶ 33 (“Robert Redfern’s

airman medical Application for his 2014 airman medical

certificate was never selected for a spot-check review by the

Surveillance Program Analyst and therefore was not reviewed

by my office until after the crash in 2017.”)).

1. Discretionary Function

Congress enacted the Federal Aviation Act “to promote

safety in air commerce.” Heller v. United States, 803 F.2d

1558, 1559-60 (11th Cir. 1986) (citation omitted). “The

Federal Aviation Act created the FAA, and authorized it to

issue certificates to pilots, designating in which capacity

they can serve, and attaching any necessary limitations to

[e]nsure safety in air commerce.” Foster v. United States,

923 F.2d 765, 767 (9th Cir. 1991). Federal regulations

delegate the authority of the FAA’s administrator “to issue

or deny medical certificates . . . to the Federal Air

Surgeon.” 14 C.F.R. § 67.407(a). Those functions are in turn

delegated to aviation medical examiners. Id. at § 67407(b);

see also Id. at § 67.405(b) (“Any aviation medical examiner

may perform examinations for the second-[class] . . . medical

certificate.” ). Still, the Federal Air Surgeon maintains the

authority “to reconsider the action of an aviation medical

examiner [that] is delegated to the Federal Air Surgeon.” Id.

at § 67.407(c).

Here, the FAA maintains discretion to review or revoke

an aviation medical examiner’s issuance of a second-class

medical certificate. Plaintiffs have pointed to no regulation

requiring the FAA or its employees to review or revoke any

particular medical certificate. According to the sworn

declaration of Dr. Susan Northrup, the Federal Air Surgeon,

“[t]he FAA can reverse an [aviation medical examiner]’s

decision to issue an airman medical certificate within 60

days if a spot-check review or other information reveals an

improper issuance. . . Although reversal is allowed by 14

C.F.R. § 67.407(c), no statute, regulation, agency policy or

procedure mandates reversal of an [aviation medical examiner]

issued airman medical certificate.” (Doc. # 52-4 at ¶¶ 28-

29; Doc. # 52 at ¶ 21).

And, Plaintiffs’ citations to their expert Dr. Allen

Parmet’s deposition are inapposite. (Doc. # 69 at ¶ 21). None

of those citations provide that any such requirement existed

when Redfern’s medical certificate was issued, nor do any of

them point to a statute or regulation establishing such a

requirement. See (Doc. # 69-3 at 124:2-8, 199:13-20, 253:12-

23). Rather, the evidence before the Court points only to

there being no such mandatory reviewal or reversal of second-

class medical certificates – even if erroneously issued. See

49 U.S.C. § 44709(a)(1) (“The Administrator of the [FAA] may

reinspect at any time a civil aircraft, aircraft engine,

propeller, appliance, design organization, product

certificate holder, air navigation facility, or air agency,

or reexamine an airman holding a certificate issued under

section 44703 of this title.” (emphasis added)); see also Id.

at § 44709(b) (“The Administrator may issue an order amending,

modifying, suspending, or revoking . . . any part of a

certificate issued under this chapter if . . . the

Administration decides after conducting a reinspection,

reexamination, or other investigation that safety in air

commerce or air transportation and the public interest

require that action; or . . . the holder of the certificate

has violated an aircraft noise or sonic boom standard or

regulation[.]” (emphasis added)).

Because the regulations allow the FAA to delegate the

issuance of medical certificates to medical examiners and do

not impose any requirement to review or revoke any such

certificate, the Court finds the decision to do so

discretionary. See Varig Airlines, 467 U.S. at 819-20 (“When

an agency determines the extent to which it will supervise

the safety procedures of private individuals, it is

exercising discretionary regulatory authority of the most

basic kind.”). Just as a number of courts have found in

similar contexts, the FAA and its employees can, in their

discretion, review an aviation medical examiner’s issuance of

a medical certificate, but no statute or regulation requires

them to do so. See e.g., Heller, 803 F.2d at 1566-67 (finding

the FAA’s issuance of medical certificates discretionary in

a comparable context); Foster, 923 F.2d at 768 (deeming the

Federal Air Surgeon’s authority to issue a special issue

medical certificate discretionary). Therefore, the first

prong of the discretionary-function exception test is

satisfied.

2. Susceptibility to Policy Analysis

Turning to the second prong of the discretionary-

function exception test – whether the actions taken “are

susceptible to policy analysis” – the Court finds that they

are. Gaubert, 499 U.S. at 325. As the United States explains,

“[a]lthough the FAA sets the standards for aeromedical

certification, the chief responsibility for compliance rests

with the pilot and [medical examiners] authorized to issue

medical certificates.” (Doc. # 52 at 26). This policy of

maintaining discretion over the review of aviation medical

examiners’ issuance of medical certificates allows the FAA to

maintain its costs such that it can continue to exist and

promote aviation safety. See (Doc. # 52-4 at ¶¶ 37-41 (“It is

not our mission, nor is it possible, for the FAA to police

every pilot or every [aviation medical examiner]. . . . This

standards-based oversight has enabled the FAA to keep costs

reasonable while promoting aviation and oversight of the

safest airspace system in the world. . . . The agency has

found that spot-checking helps the agency oversee the

aviation medical programs in a cost-effective manner, while

allowing pilots to obtain aviation medical advice and

certification close to their homes and efficiently.”)); see

also U.S. Aviation Underwriters, Inc. v. United States, 562

F.3d 1297, 1300 (11th Cir. 2009) (noting “cost and budgetary

policy considerations” as satisfying the second prong of the

discretionary-function exception test).

Although Plaintiffs aver that no such spot check system

exists, they provide no convincing fact in opposition to Dr.

Northrup’s sworn declaration stating as much. See (Doc. # 52-

4 at ¶ 18 (“The spot-check program is designed to monitor

[aviation medical examiner] performance.”)). And, this spot

check system is in line with the regulations providing the

FAA with discretion to review the issuance of medical

certificates. Thus, these discretionary functions are “of the

nature and quality that Congress intended to shield from tort

liability.” U.S. Aviation, 562 F.3d at 1299 (internal

quotation marks and citation omitted). Plaintiffs have

provided no compelling evidence or argument warranting the

Court to set aside the presumption that the FAA’s acts “are

grounded in policy when [it] exercis[es] [its] discretion.”

Gaubert, 499 U.S. at 324.

Of note, the Court finds the Supreme Court’s analysis in

Varig Airlines instructive here. There, the Supreme Court was

faced with the question of whether the FAA negligently

certified “certain aircraft for use in commercial aviation”

where the record evidence did not indicate that FAA employees

had actually inspected or reviewed the equipment that did not

meet FAA standards. 467 U.S. at 799, 814-15. In Varig

Airlines, the FAA utilized a spot check system to review such

equipment. Id. at 817. In finding that the United States had

not waived sovereign immunity as to this function, the Supreme

Court explained:

Decisions as to the manner of enforcing regulations

directly affect the feasibility and practicality of

the Government’s regulatory program; such decisions

require the agency to establish priorities for the

accomplishment of its policy objectives by

balancing the objectives sought to be obtained

against such practical considerations as staffing

and funding. Here, the FAA has determined that a

program of “spot-checking” manufacturers’

compliance with minimum safety standards best

accommodates the goal of air transportation safety

and the reality of finite agency resources.

Judicial intervention in such decisionmaking

through private tort suits would require the courts

to “second-guess” the political, social, and

economic judgments of an agency exercising its

regulatory function. It was precisely this sort of

judicial intervention in policymaking that the

discretionary function exception was designed to

prevent. It follows that the acts of FAA employees

in executing the “spot-check” program in accordance

with agency directives are protected by the

discretionary function exception as well.

Id. at 820. Such reasoning is just as applicable here.

Because the FAA and its employees’ decision to review or

rescind an aviation medical examiner’s issuance of a medical

certificate is discretionary and susceptible to policy

analysis, the United States has not waived sovereign immunity

as to this claim. See Foster Logging, 973 F.3d at 1167

(determining that the district court lacked subject-matter

jurisdiction over a claim because the discretionary-function

exception applied). Accordingly, the Motion is granted as to

Count I, which is dismissed for lack of subject-matter

jurisdiction.

B. Flight Instructor Certificate

In Count II, Plaintiffs allege that the FAA and its

employees acted negligently with respect to the renewal of

Redfern’s flight instructor certificate. (Doc. # 10 at ¶¶

131-32). The United States contends that it has not waived

sovereign immunity as to this claim because it also falls

within the discretionary-function exception. (Doc. # 52 at

2). Accordingly, the Court must determine whether this

function is discretionary and susceptible to policy analysis.

1. Discretionary Function

Unlike medical certifications, employees of the FAA

themselves issue and renew flight instructor certificates.

(Doc. # 52 at ¶¶ 29, 43). Plaintiffs do not provide facts

supporting negligence on the part of the FAA or its employees

as to the initial issuance of Redfern’s flight instructor

certificate, but rather as to its later renewals. (Doc. # 10

at ¶¶ 126-32; Doc. # 69 at 24-26). The particular renewals in

this case were issued “on the basis of acquaintance.” (Doc.

# 69 at 24). Thus, the Court turns to whether the FAA’s

function of renewing a flight instructor certificate on the

basis of acquaintance is discretionary.

FAA regulations provide for a number of ways in which an

individual can renew his or her flight instructor

certificate. See 14 C.F.R. § 61.197(a) As to these renewals,

FAA Order 8900.1 “directs the activities of aviation safety

inspectors . . . [and] provides direction for tasks related

to . . . investigations and compliance, the aviation safety

program, [and] administrative areas.” (Doc. # 55-4 at 1). FAA

Order 8900.1 distinguishes between the mandatory directives

and permissive guidance contained therein:

A. Directive Information. Directive information is

information considered directive in nature,

contains terms such as “shall,” “will,” or “must,”

and means the actions are mandatory. “Shall not”

prohibits the action. The use of these terms will

leave no flexibility, and inspectors must follow

their direction unless otherwise authorized by HQ.

B. Guidance Information. Guidance information is

information considered guiding in nature and will

contain terms such as “should” or “may.” These

terms indicate actions that are desirable,

permissive, or not mandatory, and allow

flexibility.

(Id. at 2). Section 5-504 of the Order provides that “[a]

person who holds a flight instructor certificate that has not

expired may renew that certificate for an additional [twenty-

four] calendar months if the holder” presents, among other

possible options, the following to an aviation safety

inspector: “[a] record that shows that within the preceding

[twenty-four] calendar-months, the flight instructor has

served in one of the [enumerated] positions in which the

[aviation safety inspector] is acquainted with the duties and

responsibilities, and has knowledge of its current pilot

training, certification, and standards[.]” (Doc. # 52-5 at

9). These enumerated positions include: “company check

pilot,” “chief flight instructor,” “company check airman,”

“flight instructor in a part 121 or 135 operation,” and “[a]

position involving the regular evaluation of pilots.” (Id.).

Regarding this renewal of flight instructor certificates

on the basis of acquaintance, FAA Order 8900.1 states:

E. Renewal on the Basis of Acquaintance. The FAA

never intended or permitted that an applicant’s

flight instructor certificate be renewed merely on

the basis of acquaintance. FAA policy has always

required [air safety inspectors] to see evidence of

the applicant’s employment, which should clearly

show that applicants are in a position involving

the regular evaluation of pilots, or to have

personal knowledge of an applicant’s flight

instructing capabilities and qualities before

renewing that applicant’s flight instructor

certificate.

(Id. at 12 (emphasis added)). Thus, by the terms of the Order,

one of the two ways in which an air safety inspector can renew

an individual’s flight instructor certificate on the basis of

acquaintance is if the inspector “has personal knowledge” of

the individual’s “capabilities and qualities.” (Id.). The

Order does not further prescribe any particular level of

personal knowledge required to renew a flight instructor

certificate on this basis. (Doc. ## 52-5; 55-4).

Here, the Court finds the conduct at issue – renewing an

individual’s flight instructor on the basis of acquaintance

– to be discretionary within the meaning of the FTCA. As

noted, FAA Order 8900.1 does not prescribe a level of personal

knowledge necessary to renew a flight instructor certificate

on the basis of acquaintance. See Zelaya, 781 F.3d at 1329

(“In determining whether judgment or choice is present in the

particular conduct at issue, the inquiry focuses on ‘whether

the controlling statute or regulation mandates that a

government agent perform his or her function in a specific

manner.’” (citation omitted)). Plaintiffs have pointed to no

rule or regulation setting out such a directive.

And, Plaintiffs’ own expert, Robbie S. Lasky, a former

FAA air safety inspector, conceded that the determination of

renewing a flight instructor based on personal knowledge is

subjective. (Doc. # 56 at 144:8-15 (“Q. Does an Aviation

Safety Inspector have the ability to exercise judgment in

determining the personal knowledge that he needs of the flight

instructor’s capabilities and duties under Section 5-504E to

renew a flight instructor certificate? A. I – I – yes, he

does, based on – based on his – his, actually his knowledge,

and that would be subjective.”)).

Additionally, as defined by the Order, the language used

with regard to renewal of certificates is permissive. For

example, Section 5-504 states that “[a] person who holds a

flight instructor certificate that has not expired may renew

that certificate for an additional [twenty-four] calendar-

months if the holder” presents certain information to the

aviation safety inspector, among other options. (Doc. # 52-5

at 9) (emphasis added). This use of “may” signifies that this

is guidance information, meaning that it “indicate[s] actions

that are desirable, permissive, or not mandatory, and allow

flexibility.” (Doc. # 55-4 at 2). Furthermore, FAA

regulations do not require an air safety inspector to

investigate or act against any pilot. Cf. Redmon v. United

States, 934 F.2d 1151, 1156 (10th Cir. 1991) (holding that an

FAA flight safety inspector did not violate regulations by

failing to investigate a private pilot’s fitness); see also

14 C.F.R. § 13.19 (“Under section 609 of the Federal Aviation

Act of 1958 [], the Administrator . . . may re-examine any

airman. . . . If, as a result of such a . . . . re-examination,

or other investigation made by the Administrator . . . the

Administrator determines that the public interest and safety

in air commerce requires it, the Administrator may issue an

order amending, suspending, or revoking, all or part of any

. . . airman certificate[.]” (emphases added)). Nor do FAA

regulations require safety inspectors to review evidence of

an applicant’s employment. See (Doc. # 52-5 at 11 (“FAA [air

safety inspectors] should review evidence of the applicant’s

employment, which should clearly show that the applicant is

in a position involving the regular evaluation of pilots.

[Air safety inspectors] also should have personal knowledge

of the applicant’s flight instructing capabilities and

qualities before renewing that applicant’s flight instructor

certificate.” (emphases added)).

Therefore, the Court finds that FAA aviation safety

inspectors maintain discretion as to how to renew an

individual’s flight instructor certificate and, specifically,

as to what level of personal knowledge is needed to renew

such a certificate on the basis of acquaintance. See Varig

Airlines, 467 U.S. at 819 (“When an agency determines the

extent to which it will supervise the safety procedures of

private individuals, it is exercising discretionary

regulatory authority of the most basic kind.”). Therefore,

the first prong of the discretionary-function exception test

is met as to Plaintiffs’ claim that the FAA or its employees

negligently renewed Redfern’s certified flight instructor

certificate.

2. Susceptibility to Policy Analysis

For similar reasons discussed regarding the FAA’s review

of an aviation medical examiner’s issuance of second-class

medical certificates, the Court also finds that the renewal

of flight instructor certificates is susceptible to policy

analysis. Indeed, “[i]t is difficult to imagine a more policy-

driven mission or a more policy-driven set of actions” than

the FAA’s “issuance and revocation of certificates.”

Roundtree v. United States, 40 F.3d 1036, 1039 (9th Cir.

1994). The FAA must make policy determinations in allocating

its limited resources in advancing its purpose of promoting

air safety. See Redmon, 934 F.2d at 1157 (explaining that the

FAA “must inherently . . . balance the ultimate goal of air

safety against the reality of finite agency resources”

(internal quotation marks and citation omitted)). These

policy considerations are also grounded in public safety. See

Holbrook v. United States, 749 F. Supp. 2d 446, 454-455 (S.D.

W. Va. 2010) (“The FAA inspector’s judgment concerning the

application of inspection standards based on safety

considerations is precisely the type of policy decision the

discretionary function exception is designed to protect.”).

Therefore, the Court finds that the FAA’s renewal of

flight instructor certificates on the basis of acquaintance

is susceptible to policy analysis. See Cosby v. U.S. Marshals

Serv., 520 F. App’x 819, 821 (11th Cir. 2013) (“If the

decision could objectively be made on policy grounds within

the discretion afforded the decisionmaker, then ‘we presume

that the act was grounded in policy whenever that discretion

is employed.’” (citation omitted)).

Because both prongs of the discretionary-function

exception test are satisfied, the United States has not waived

sovereign immunity as to Count II. See Rutherford v. United

States, 760 F. App’x 787, 793 (11th Cir. 2019) (determining

that because the two prongs of the discretionary-function

exception test were satisfied, the district court was barred

from evaluating the defendant’s exercise of judgment). Thus,

Count II is dismissed for lack of subject-matter

jurisdiction. See Holbrook, 749 F. Supp. 2d at 455 (dismissing

a complaint alleging that the FAA acted negligently in issuing

various certificates because the United States had not waived

sovereign immunity).

Because the Court has granted the Motion to Dismiss as

to all counts of the amended complaint, it is without

jurisdiction to decide the United States’ alternative Motion

for Summary Judgment.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendant United States of America’s Motion to Dismiss

(Doc. # 52) is GRANTED.

(2) Plaintiffs’ amended complaint (Doc. # 10) is DISMISSED

for lack of subject-matter jurisdiction.

(3) The Clerk is directed to TERMINATE any pending motions

and deadlines and thereafter CLOSE the case.

DONE and ORDERED in Chambers, in Tampa, Florida, this

19th day of May, 2021.

bio I. Hen jut

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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