# Mutchler v. United States

> District Court, M.D. Florida · May 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10107553

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10107553

## How later opinions describe it (automated extraction)

- finding the FAA’s issuance of medical certificates discretionary in a comparable context
- holding that an FAA flight safety inspector did not violate regulations by failing to investigate a private pilot’s fitness
- 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)

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107553. Public record. Not legal advice.