# Petition for Writ of Certiorari — Tiffany v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1030

## Text

91°5104

DPFIGE OF THE CLERK |
Supreme Court of the Huited States

IN THE

| Supreme Court, U.S
FILED

No. —_— SEP 3.01993

OCTOBER TERM, 1991

&

Patsy O. TIFFANY

ADMINISTRATRIX AND PERSONAL REPRESENTATIVE
FOR THE ESTATE OF HENRY H. TIFFANY, DECEASED,

Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent,
V.
BRANDON LADD CORPORATION,
Respondent.

PETITION FOR A WRIT OF CERTIGRARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

* Counsel of Record

MICHAEL J. PANGIA*

GILMAN, OLSON & PANGIA

1815 H Street, N.W., Suite 600
Washington, D.C. 20006

(202) 466-5100

NICHOLAS H. Cosss

LAw OFFICE OF NICHOLAS H. Coss
1815 H Street, N.W., Suite 600
Washington, D.C. 20006

(202) 452-8222

FRANK ANTHONY MIKA

P.O. Box 1286

Waynesboro, Virginia 22980
(703) 942-4181

=) - - |
a _
= | |
_ an : :

i
QUESTIONS PRESENTED

Does the United States military enjoy absclute immunity
from suit for negligence against civilians in the course of
peacetime missions that may involve “national security,” but
do not involve a discretionary function?

In considering the scope of the military’s immunity for
operational negligence, should the court of appeals have
interpreted the discretionary function exception of the Federal
Tort Claims Act, 28 U.S.C. § 2680(a), in accord with the
decisions of this Court in Boyle v. United Technologies Corp.,
487 U.S. 500 (1988) and Berkovitz v. United States, 486 U.S.
531 (1988), and decisions of the Third, Eighth, and Ninth
Circuits involving similar facts?

Do the congressional intent and the plain language of the
Federal Tort Claims Act require that the military be
accountable for the negligence of its employees in activities
that do not involve actual combat, and do not involve a
discretionary function?

il

TABLE OF CONTENTS

SE PUIG oo o5 oh 6a nesacecizneteeaee
ee I 6 occ csned ceasnceeetecsatenee

Opinions Below............... ob beke ete ee
I 0.0 6s 40806 thdskctesnassicee

Reasons for Granting the Writ ......................
I. The Decision of the Court of Appeals Confuses

I.

Il.

the Standards Governing the Government’s
Liability for Negligence by Imposing a Complete
Shield for Certain Acts of Military Negligence,
Rather than a Limited Immunity for Acts that
Require Discretionary Judgment ..............

A. The Decision Ignores Decisions of This Court
that Restrict the Scope of the Separation of
Powers Doctrine, Including Boyle v. United
SORROERENS COD. 6 06 bs coun ccdeeee

B. The Decision Departs from This Court’s
Decision in Berkovitz v. United States and
Other Decisions of This Court that Construe
the Limits of the Government’s Exemption
From Liability For Discretionary Functions
Under the Federal Tort Claims Act .......

The Decision of the Court of Appeals Is in
Conflict with Decisions of Three Other Circuits

The Decision of the Court of Appeals Creates an
Exception to the Federal Tort Claims Act for
Activities Involving Nationai Security that Is
Contrary to the Congressional Intent and the
Plain Language of the Statute .................

COIIIINS yviosddbavdseceoeleine eee

ll

14

16
19

ili

TABLE OF AUTHORIiTES
Cases

Baker v. Carr, 369 U.S. 186 (1962)...........

Berkovitz v. United States, 486 U.S. 531
ei chedeccescesensvecss

Boyle y. United Technologies Corp., 487 U.S.
ee ivceyescesvesesss

Brooks v. United States, 337 U.S. 49 (1949)...
Chappell v. Wallace, 462 U.S. 296 (1983).....

DaCosta v. Laird, 471 F.2d 1146 (2d Cir.
Se Ee ee

Dalehite v. United States, 346 U.S. 15 (1953) .

Daley v. United States, 792 F.2d 1081 (11th
esse crv erecceeccseees

Downs v. United States, 522 F.2d 990 (6th Cir.

es Sack oi cavess tage ececcs.
Feres v. United States, 340 U.S. 135 (1950) ...
Gilligan v. Morgan, 413 U.S. 1 (1973) ........

In re ‘Agent Orange” Product Liability
Litigation, 580 F. Supp. 1242 (E.D.N.Y))
app. dismissed, 745 F.2d 161 (2d Cir. 1984)

In re Korean Air Lines Disaster of
September 1, 1983, 597 F. Supp. 613
I
Indian Towing Co. v. United States, 350 US.
ead evseceesceeecsscs:
Johnson vy. United States, 170 F.2d 767 (9th
re oc ave sc cesvceseccss
Kuhne v. United States, 267 F. Supp. 649
EE ee pews eeresececcseoss
Laird v. Tanwn, 408 US. 1 (1972)............
Moran Towing & Transp. Co. v. United States,
80 F. Supp. 623 (S.D.N.Y. 1948) ..........
Peterson v. United States, 673 F.2d 237 (8th
EN

passim
passim
12
10

10
12, 14, 16

12

17

18

15

iv

Rappenecker vy. United States, 509 F. Supp.
Se es Ge FO ed cca ddkenccancveases

Rayonier, Inc. vy. United States, 352 U.S. 315
Dea cco aire ag ie

a entice se te sc oebabceeiceane cs
Rostker v. Goldberg, 453 U.S. 57 (1981) ......
Schneider v. Lockheed Aircraft Corp., 658 F.2d

835, (D.C. Cir. 1981), cert. denied, 455 U.S.

ce PIS SOR Gi AE Sera cir RS I gatas
Skeels v. United States, 72 F. Supp. 372 (W.D.

i te ins ea ee hoe es Cee
Stencel Aero Engineering Corp. v. United

States, 431 U.S. G66 C9977) © oan cccccccss
Tozer v. LTV Corp., 792 F.2d 403 (4th Cir.

1986), cert. denied, 487 U.S. 1233 (1988)...
United Air Lines, Inc. v. Wiener, 335 F. 2d

379 (9th Cir.), cert. denied, 379 U.S. 951

Fors ee elas ireeuiae te baedeks
United States v. Gaubert, __. U.S. ___, 111 S.

ee. ee et
United States v. S.A. Empresa de Viacao Aerea

Rio Grandense (Varig Airlines), 467 U.S.

We CUE S55 snes dane oer oee ee
United States v. Stanley, 483 U.S. 669 (1987) .
Vogelaar v. United States, 665 F. Supp. 1295

Ms HUIS cca ccc un ea vekeucees
Ward v. United States, 471 F.2d 667 (3rd Cir.

PE winks ayaa comenc eaten tue eS

Statutes and Rules

Death on the High Seas Act, 46 U.S.C.
Rn tin Pets lane Ps en eA deae A

Page(s)

12, 18

13, 14

13, 14

Federal Tort Claims Act
ee No ees on ees corse sekes
poo 8 ae Ee
yp RRS op ee

Suits in Admiralty Act, 46 U.S.C. §§ 741-52 ..

Miscellaneous Statutes and Rules
f gi S Sete Do) |) ere
SO CLP BOL FOS UIE] na ccc ccceces
ee duals Gul cate eet

Other Authorities

Airmen’s Information Manual (A.I.M.) .......
Aeronautical Information Publication (A.I-P.) .
I CUD fo oe a kwnnscceectseueces
SP ROO ooo vec devsdeveceaseead enn’

Page(s)

2

2 & passim
2, 16-18
4, 12, 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991
>

—

PATsy OQ. TIFFANY
ADMINISTRATRIX AND PERSONAL REPRESENTATIVE
FOR THE ESTATE OF HENRY H. TIFFANY, DECEASED,

Petitioner,
Vs
UNITED STATES OF AMERICA,
Respondent,
ve
BRANDON LADD CORPORATION,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

Petitioner, Patsy O. Tiffany, administratrix and personal
representative for the Estate of Henry H. Tiffany, prays that a
writ of certiorari issue to review the judgment and opinion of
the United States Court of Appeals for the Fourth Circuit,
entered in this proceeding on April 30, 1991.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fourth Circuit
(App. A, infra, pp. A-1 to A-21) is reported at 931 F.2d 271
(4th Cir. 1991). It reversed the district court opinion reported

2

at 726 F. Supp. 129 (W.D. Va. 1989) (App. B, infra, pp. B-1
to B-15).

JURISDICTION

The judgment of United States Court of Appeals for the
Fourth Circuit (App. C, infra, C-1) was entered on April 30,
1991. A petition for rehearing and suggestion for rehearing en
banc was denied on July 3, 1991 (App. D, infra, D-1 to D-2).
(Judge Murnaghan voted to rehear the case en banc.) This
Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

PROVISIONS OF LAW INVOLVED

The Federal Tort Claims Act, 28 U.S.C. § 2680, provides in
relevant part:

The provisions of this chapter and section 1346(b) of this
title [permitting suit against the United States for tort claims]
shall not apply to—

(a) Any claim based upon an act or omission of an
employee of the Government, exercising due care, in the
execution of a statute or regulation, whether or not such
statute or regulation be valid, or 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.

*x**

(j) Any claim arising out of the combatant activities of the
military or naval forces, or the Coast Guard, during time of
war (emphasis added).

STATEMENT OF THE CASE

At 4:44 p.m. on January 3, 1983, a twin engine propeller
plane piloted by Henry H. Tiffany was struck from behind by
an F-4C Phantom interceptor and crashed on the high seas off
the coast of North Carolina. Tiffany and six civilian
passengers were kilied. The interceptor returned to its base
with wing damage.

The proximity of the two aircraft was not fortuitous. The
interceptor was operated by members of the Michigan Air
National Guard attached for weekend active duty to the Air
Force’s North Atlantic Air Defense Command (NORAD). It
had been dispatched by NORAD to attempt a visual
identification of the Tiffany aircraft because the radar track did
not correlate with any flight plan or file.! Consistent with a
peacetime mission against an aircraft that was unidentified,
but could not be presumed hostile, the interceptor operated
under Air Force regulations and established procedures that
were intended to ensure that the identification mission would
be completed safely. A summary of these procedures, was
published for use by civilian pilots.?

1. Tiffany had filed a flight plan with the flight service station in Nassau,
Bahamas, before he departed. The flight plan called for him to proceed to
Ft. Pierce, Florida, and then to Norfolk, Virginia, as required by a notice to
airmen (NOTAM) that had been called to Tiffany’s attention in Nassau.
However, Tiffany did not activate the flight plan after he took off. Rather
than fly to Ft. Pierce, Tiffany proceeded north towards Norfolk. Before he
was informed that the interceptors had been dispatched, Tiffany initiated
contact with Air Traffic Control to report his intentions and request that he
be met by Customs.

The district court declined to find that Tiffany’s failure to foilow the plan
had been deliberate and specifically held that the failure to follow the flight
plan was not a proximate cause of the collision (B-2). It found the
Government’s claim that Tiffany was trying to evade detection untenable
in light of Tiffany’s request, when he contacted Air Traffic Control, that
Customs officials be told of his expected arrival in Norfolk (B-3). The
court of appeals did not discern error in these findings. But it did note “the
tremendous practical importance as well as the legal necessity of filing
accurate flight plans,” and asserted, without support in the record, that
Tiffany “had decided against complying with Customs regulations” (A-4).
Presumably, the court of appeals’ disagreement with the district court
about fault on Tiffany’s part did not influence its determination that the
action against the Government was barred, irrespective of fault by the
Government personnel.

2. Certain of the Air Force regulations concerning intercept procedures,
including required vertical separation and closure speeds, are quoted in
note 13, infra. A summary of these intercept procedures was published to
civilian pilots in the Airmen’s Information Manual (“A.I.M.”’), a Federal
Aviation Administration publication that civilian pilots are required, by
regulation, to be familiar with. See 14 C.F.R. § 61.105 (1982). A
substantially identical summary is set forth in the Aeronautical

4

Petitioner, Henry Tiffany's widow and _ personal
representative, sued the United States for wrongful death
under the Suits in Admiralty Act, 46 U.S.C. §§ 741-52, in the
United States District Court for the Western District of
Virginia.3 The Government denied liability and
counterclaimed for indemnity to recover sums it had paid in
settlement of claims by the estates of four of Tiffany’s
passengers, in addition to a claim for damage to the
interceptor. The Government also commenced a third-party
action for indemnity and damage to the aircraft against
Brandon Ladd Corporation, the lessee of the Tiffany airplane.‘
Actions against the Government by the estates of the two
remaining passengers were consolidated with the Tiffany
action, but were later settled and dismissed.‘ The
Government’s counterclaim for indemnity was dismissed on a
motion for summary judgment. The remaining claims
proceeded to trial. Petitioner’s claims were limited to
assertions of operational negligence in the control and
execution of the intercept by the pilots and ground control
personnel. There was no assertion of fault in the
Government’s selection of equipment, the decision to conduct
the identification mission or the choice of tactics that were
employed. Nor did the Government adduce any evidence that

Information Publication (“A.I.P.”), which governs international flights.
Pertinent excerpts from these publications are quoted in note 6, infra. The
fact that the intercept tactics were published demonstrated the
noncombatant nature of the identification procedure.

3. The right of action for wrongful death was conferred under the Death
on the High Seas Act, 46 U.S.C. §§ 761-68.

4. Henry Tiffany was president of Brandon Ladd Corp., which operated
the aircraft under a long terin lease. It was stipulated that, at the time of
the accident, Tiffany was using the aircraft for personal business. A
separate action by Brandon Ladd Corp. to recover for loss of the aircraft,
commenced in the United States District Court for the District of
Columbia, was transferred to the Western District of Virginia and
consolidated with the Jiffany action. Brandon Ladd vy. United States,
No. 85-0040-C (W.D. Va.).

5. Williams v. United States, No. 85-0004-C (W.D. Va.); Whittaker v.
United States, Nos. 85-0048-C, 85-0052-C (W.D. Va.).

the Air Force pilots or ground control personnel ever believed,
or even suspected, that the Tiffany aircraft was hostile.®

Following trial, the district court (Michael, J.), issued a
memorandum opinion incorporating the court’s findings of
fact and conclusions of law. The district court found the
Government solely liable for the collision. Among the
elements of negligence it specified were the failure of the
ground controllers to terminate the intercept when they had
sufficient information to identify the Tiffany aircraft, failure of
the controllers to give the interceptor pilot a proper altimeter
setting, failure of the pilots to maintain proper vertical
separation, failure of the interceptor to identify the position of
the Tiffany aircraft properly on its radar, and failure of the
interceptor to follow prescribed procedures for breaking off the
intercept (B- 7-8). These findings of negligence were based not
only on the requirements of the Air Force regulations, but also
on admissions of the Air Force’s own expert witness.’

6. Although the court of appeals emphasized the bellicose nature of the
interceptor’s mission, characterizing it as “the actual military defense of
our country” (A-11), involving a “potentially hostile aircraft” (A-16), the
evidence before the district court raised no inference that the Air Force
anticipated or suspected a combat situation to develop.

The A.I.M. and the A.I.P., which were published for civilian pilots, both
stressed that peacetime identification intercepts were “‘vastly different than
those conducted under increased states of readiness’ and that the air crews
“will constantly keep in mind that maneuvers considered normal of a
fighter aircraft may be considered hazardous to passengers and crews of
nonfighter aircraft." They both stated that peacetime identification of
unknown aircraft would be “by type only” (e.g., Boeing 737, Cessna 210),
and assured civilian pilots that “positive vertical separation will be
maintained by interceptor aircraft throughout [the identification] phase.”
They further guaranteed that: “When interceptor aircrews know or believe
that an unsafe condition exists, the identification phase will be
terminated.” The complete relevant text of the A.I.M. is in Vol. 2 of the
Court of Appeals Joint Appendix at 425-30 [hereinafter C.A.J.A.]. The
comparable part of the A.I.P. is at 2 C.A.J.A. 509-20.

7. The government’s expert on intercept procedures, Lt. Col. Smith,
conceded that the interceptor pilots violated Air Force regulations that
required the interceptors to maintain 1000 feet vertical separation and to
limit the overtake speed to no more than 50 knots (B-8; 4 C.A.J.A. at 1218,
1232).

6

The Fourth Circuit Court of Appeals reversed. The court
held that a firding of negligence against the Government
“would be interjecting tort law into the realm of national
security and second-guessing judgments with respect to
potentially hostile aircraft that are properly left to the other
constituent branches of government” (A-8). Although the
court of appeals acknowledged that the discretionary function
exception of the Federal Tort Claims Act, 28 U.S.C. § 2680(a),
was implied in the Suits in Admiralty Act, it declined to use
the exception as the basis for its analysis of Mrs. Tiffany’s
claim. The court held that “While the doctrine of
discretionary ffunctions...informs our inquiry... the
discretionary function exception alone does not capture all the
important aspects of this case” (A-11). Instead, the court
applied principles of “justiciability” and “separation of
powers” to conclude that there were “no ‘judicially
discoverable and manageable standards for resolving’ whether
necessities of national defense outweigh risks to civilian
aircraft” (A-14, quoting Baker v. Carr, 369 U.S. 186, 217
(1962)).

Specifically, the court of appeals rejected Petitioner’s
contention that NORAD and USAF regulations, manuals, and
procedures provided a standard by which the Air Force’s
negligence could be measured. While observing that the
regulations in question “actually reserve a great deal of
discretion for the parties who must conduct the defensive
maneuvers” (A-15), the court of appeals did not hold that the
district court incorrectly applied the standards for the
discretionary function exception set forth in Berkovitz y.
United States, 486 U.S. 531 (1988) or other decisions of this
Court. Instead, the court of appeals held that the existence of
these operating procedures “‘cannot convert this dispute into a
justiciable issue when so many other factors counsel against
judicial intervention.” Jd.

7

REASONS FOR GRANTING THE WRIT
I

The Decision of the Court of Appeals Confuses
the Standards Governing the Government’s Liability
for Negligence by Imposing a Complete Shield
for Certain Acts of Military Negligence,
Rather than a Limited Immunity
for Acts that Require Discretionary Judgment

The decision of the court of appeals further clouds an area of
law that is already foggy. Ata time when this Court is trying
to define the bounds of discretionary functions in order to
clarify the rules that will govern suits against government
contractors and government employees, the court of appeais
has abandoned the discretionary function test altogether.
Instead, it has extended the doctrine of nonjusticiability, based
on separation of powers, into areas that have never been
recognized by this or any other court. If allowed to stand, the
decision will frustrate the efforts of this Court to bring order to
the law governing suits involving the Government and the
military.

A. The Decision Ignores Decisions of This Court that
Restrict the Scope of the Separation of Powers Doctrine,
Including Boyle v. United Technologies Corp.

The Fourth Circuit’s analysis of the Government’s
immunity from suit for negligence as a matter of “‘separation
of powers” departs radically from this Court’s recent opinion
in Boyle v. United Technologies Corp., 487 U.S. 500 (1988),
and far exceeds the limits of the doctrine of justiciability that
have previously been sanctioned by this Court. Although the
decision of the court of appeals involves a suit against the
Government, rather than a government contractor, it seriously
undermines this Court’s decision in Boyle and cases that
follow it.

In Boyle, this Court examined a decision in which the
Fourth Circuit used a “separation of powers’? approach to
analyze a civilian’s claim that a manufacturer negligently

8

designed military equipment. The Fourth Circuit followed the
rationale of Tozer v. LTV Corp., 792 F.2d 403 (4th Cir. 1986),
cert. denied, 487 U.S. 1233 (1988), a companion case to Boyle
which extended the “separation of powers” principles
underlying Feres v. United States, 340 U.S. 135 (1950) and
Stencel Aero Engineering Corp. v. United States, 431 U.S. 666
(1977) to bar suits against government contractors.* Justice
Scalia’s opinion in Boyle affirmed the result reached by the
Fourth Circuit, but it explicitly rejected the separation of
powers doctrine as a foundation for analysis of torts involving
civilians, holding that the Feres approach “logically produces
results that are in some respects too broad and in some
respects too narrow.” 487 U.S. at 510. Specifically, Justice
Scalia noted that the separation of powers approach adopted
by the Fourth Circuit in Boyle “‘covers only service-related
injuries and not injuries caused by the military to civilians.”
Id.

As an alternative to separation of powers analysis, the
Court, in Boyle, held that the protection of the Federal Tort
Claims Act for conduct arising out of a discretionary function
or duty constituted a “federal policy”’ that applied to civilian
contractors as well as to the military itself. 487 U.S. at 512.
This “‘policy,”’ in turn, was used by the Court to examine the
criteria that would sustain government contractor immunity.

This Court’s disapproval of the Tozer rationale did not deter
the Fourth Circuit in its decision below from using Tozer as
the starting point for a holding that shields the military from
suit for negligence in any activity that somehow involves
“national security,” irrespective of whether the act is
discretionary or not. The court begins its analysis by quoting
Tozer, asserting that it would be “‘unseemly” for decisions
“providing for common survival and defense,””’ to be made

8. Judge Wilkinson’s opinion in Tozer held that the grant of judicial
_ immunity to government contractors “advances the separation of powers

and safeguards the process of military procurement.” 792 F.2d at 405.
The decision did not cite Feres specifically, but relied on Stencel, which
applied the Feres doctrine to indemnity claims by government contractors
against the Government.

by courts, because courts are the “*‘least accountable branch of
government’”’ (A-10, quoting Tozer, 792 F.2d at 405). Judge
Wilkinson then quotes from Gilligan v. Morgan, 413 U.S. 1,
10 (1973), and Baker vy. Carr, as he did in the Tozer decision
(see 792 F.2d at 405), before concluding that ‘“‘Any judgment
we might render would lay upon NORAD a strata of tort law
which would be both capricious and confining in its impact”
(A-14).

In pursuing its separation of powers rationale the court of
appeals not only ignored this Court’s instructions in Boyle, it
also ignored the limits of the separation of powers doctrine
that were set by this Court in the cases that the court of appeals
purported to follow. Thus, in Gilligan, this Court noted that:

In concluding that no justiciable controversy is
presented, it should be clear that we neither hold nor
imply that the conduct of the National Guard is always
beyond judicial review or that there may not be
accountability in a judicial forum for violations of law or
for specific unlawful conduct by military personnel.

413 US. at 11-12.

In support of this holding, the Court then quoted its earlier
opinion in Laird v. Tatum, 408 U.S. 1, 15-16 (1972):

[W]uen presented with claims of judicially cognizable
injury resulting from military intrusion into the civilian
sector, federal courts are fully empowered to consider
claims of those asserting such injury; there is nothing in
our Nation’s history or in this Court’s decided cases,
including our holding today, that can properly be seen as
giving any indication that actual or threatened injury by
reason of unlawful activities of the military would go
unnoticed or unremedied.

Consistent with these principles, this Court has sanctioned
the doctrine of nonjusticiability as a defense to suits involving
alleged wrongdoing by the military only in circumstances
where military policy and planning is challenged. See, e.g,
Gilligan, 413 U.S. at 4-5 (challenge to “‘a pattern of training,
weaponry and orders” constituting ‘‘a broad call on judicial

10

power to assure continuing regulatory jurisdiction”’); Rostker vy.
Goldberg, 453 U.S. 57 (1981) (challenge to Selective Service
Act provision for registration of men and not women); or in
situations involving suits by servicemen, where considerations
of military morale and discipline are involved, e.g., United
States v. Stanley, 483 U.S. 669 (1987) (Bivins action by
serviceman barred); Chappell v. Wallace, 462 U.S. 296 (1983)
(discrimination claim by servicemen barred); Feres v. United
States, 340 U.S. 135 (1950) (tort claim by serviceman
barred).? In this respect, the doctrine of nonjusticiability has
been applied by courts in a manner consistent with the judicial
application of the discretionary function exception to the
FTCA, which also bars suits that challenge federai policy.

The Fourth Circuit’s decision here extends the doctrine of
nonjusticiability far beyond its previous boundaries. Not only
are challenges to policy decisions nonjusticiable; challenges
based on common law negligence and violation of regulations
are also nonjusticiable so long as they can be said to somehow
involve considerations of “national security” or “national
defense.”” The Court of Appeals for the Fourth Circuit has
now spawned a whole new class of claims, contrary to the law
in other circuits, for which injured victims will have no
remedy.

9. Similarly, federal circuit courts and district courts that have
considered the doctrine of nonjusticiability as its applies to the military
have applied the doctrine only in circumstances involving challenges to
governmental policy decisions. See, e.g., DaCosta vy. Laird, 471 F.2d 1146
(2d Cir. 1973) (presidential directive to mine North Vietnamese ports and
bomb North Vietnamese targets); Jn re Korean Air Lines Disaster of
September 1, 1983, 597 F. Supp. 613 (D.D.C. 1984) (claim that military
aircraft were negligently deployed); Rappenecker v. United States, 509 F.
Supp. 1024 (N.D. Cal. 1980) (claims involving foreign policy
determinations and the appropriateness of military tactics). By contrast,
claims involving lack of due care in carrying out policy decisions have been
held to be justiciable. See, e.g., Volgelaar v. United States, 665 F. Supp.
1295 (E.D. Mich. 1987) (claim for negligence in classifying decedent
soldier as a deserter and mj dling his remains held to be justiciable);
Rappenecker v. United States, 509 F. Supp. at 1030 (claim alleging
Government’s failure to warn of risks of vessel seizure held to be
justiciable, although challenges to foreign policy determinations and use of
tactics held not justiciable).

11

Moreover, the door is now open to potentially endless
litigation to define the new scope of the separation of powers
doctrine and the parties who may benefit from it. Rather than
analyzing negligent action by either Government employees or
government contractors solely in light of relatively settled
principles underlying the discretionary function exception,
courts must now resolve a plethora of new issues. What
distinguishes the “national security” mission from the
ordinary mission?!®° Is the government contractor whose
equipment fails in the course of a “‘national security” mission
entitled to the same protec.on that is afforded to the military
personnel who conduct that mission? Does the “national
security” exemption extend to civilian agencies, such as the
FBI or the CIA? This Court should spare the federal courts
this incipient controversy by limiting the scope of the doctrine
of nonjusticiability to its previous confines.

B. The Decision of the Court of Appeals Departs from This
Court’s Decision in Berkovitz v. United States and Other
Decisions of This Court that Construe the Limits of the
Government’s Exemption from _ Liability for
Discretionary Functions Under the Federal Tort Claims
Act

The mischief wrought by the court of appeals is
compounded by the court’s assertion that an analysis in light
of discretionary function would reach the same result. The
court of appeals declares that the controversy “implicates a
discretionary decision of the most serious sort” (A-11), and it
takes issue with certain of the district court’s findings in light of
selective NORAD regulations that the court of appeals
believes “‘preserve significant discretion for the necessary
actors” (A- 18-20). But the underpinning of the decision is not
that the pilots’ conduct of the intercept was a discretionary

10. The court below did not proffer any guidelines to distinguish
nonjusticiable military functions from justiciable ones. However, it
distinguished cases in other circuits that sustained actions against the Air
Force for negligent operation of aircraft as ones involving “training
exercises” or “acting in the civilian area” (A-16). These issues were never
raised in the district court.

12

matter, but rather that it would be “‘unseemly”’ for the court to
intrude into matters that “‘are properly left to the other
constituent branches of government” (A-10, A-8). The court
therefore refrains from examining the key elements of the
Government’s negligence—the negligence of the controilers
and the interceptor pilots in the operation of their aircraft.
This negligence included the admitted violation of regulations
whose purpose was to ensure the safety of the identification
effort.!!

The resulting analysis calls into question two basic maxims
for the construction of the FTCA and, by implication, the
Suits in Admiralty Act: First, that the primary purpose of the
FTCA was to make the Government liable for the common
law torts of its employees, Dalehite v. United States, 346 U.S.
15, 25-26, n. 9 (1953); Second, that the Government will not
be shielded from liability for its employees’ failure to obey “‘a
federal statute, regulation, or policy” that ‘“‘specifically
prescribes a course of action for an employee to follow,”
Berkovitz v. United States, 486 U.S. 531, 536 (1988). !2 These
precepts, in turn, have led this Court to conclude that

11. See supra, note 6 and infra, note 13. The court below did not
consider the regulations to be important, characterizing them as “internal
operating procedures” A-15.

12. The court below attempted to distinguish Berkovitz on the grounds
that it involved regulations that were published in the Code of Federal
Regulations, whereas the NORAD regulations were merely “internal
operating procedures” (A-15). This distinction is spurious in light of well-
established precedent that internal regulations may create a standard to
measure the negligence of Government employees, particularly in the case
of air traffic controllers. E.g., Rodriquez v. United States, 823 F.2d 735,
741 (3rd Cir. 1987); Daley v. United States, 792 F.2d 1081, 1085 (11th Cir.
1986); cf, Downs v. United States, 792 F.2d 990, 997 (6th Cir. 1975) (FBI
handbook provided standards for measuring negligence of agent in
hijacking situation). In any case, the Government can be held liable for its
employees’ lack of ordinary prudence under common-law principles. See,
e.g., Rayonier, Inc. v. United States, 352 U.S. 315 (1957) (negligent fire
fighting); Indian Towing Co. v. United States, 350 U.S. 61 (1955) (negligent
maintenance of a lighthouse); Brooks v. United States, 337 U.S. 49 (1949)
(negligence by driver of Army truck). These principles would apply to
piloting an aircraft, which is nothing more than the airborne counterpart of
driving a vehicie.

13

particular Government activities are not excluded from
judicial review solely on account of the subject matter or the
office of the employees involved. It is the “nature of the
conduct rather than the status of the actor” that controls.
United States v. S.A. Empresa de Viacao Aerea Rio Grandense
(Varig Airlines), 467 U.S. 797, 813 (1984). These principles
are still vibrant. This Court recently reaffirmed them in
United States v. Gaubert, USS. , 115 3. Ce 1267,
1273-74 (1991), where the Court held that the focus of any
inquiry was whether actions were susceptible to ‘“‘policy
analysis.” Jd. at 1275.

The court of appeals ignored these precepts. !t explicitly
declined to review the procedural and regulatory violations
underlying the district court’s findings of negligence because it
concluded that “other powerful factors foreclose judicial
entertainment of Tiffany’s assertions” (A-15). Moreover, in
direct contravention of this Court’s holdings in Gaubert and
Berkovitz, the court held that it “cannot accept Tiffany’s
assumption that NORAD regulations automatically create an
actionable duty in tort towards civilians,” (A-16), because “‘to
base tort liability in this situation on a failure to follow internal
regulations would have few positive outcomes” (A-18). 3

13. Although the court below expressed an opinion that “many of the
regulations ... actually preserve significant discretion for the necessary
actors” (A-18), and discussed certain regulations, it did not examine many
of the key regulations and acts that were the foundation of the district
court’s finding of negligence. Contrary to the implication of the court of
appeals, the critical regulations before the trial court did not leave room for
discretion. For example, the Air Force manual on intercept procedures,
USAF Manual 55-200, § 4-5 (a) prescribes that: “After ‘JUDY’ [the call by
which the interceptor assumes control of the intercept from the ground
controllers] aircrews will maintain a minimum of 1,000 feet vertical
separation from the target: (1) Day [light]—Until visual contract is
established.”” 2 C.A.J.A. 625. The manual on Visual Identification of
Intercepts, USAF IWIM 51-4, states that: “once in the stern, VC [closure
speed] should be held at ... SOKTS [knots] at ranges less than | NM.”
10 C.A.J.A. 3440.

As we have seen, the summary of the intercept procedures published to
civilian pilots in the A.I.M. and the A.I.P. stated that vertical separation
would be maintained at all times and that the mission would be terminated

14

By asserting that its decision is consistent with the principles
of the discretionary function exception, without analyzing the
underlying regulations or acts of neglig-nce in light of that
exception, the court of appeals further confuses an already
confused area of law. Courts seeking to follow the court of
appeals’ decision may interpret it to hold that the Government
discretionary function exception exempts the Government
from liability for the common law torts of its employees or
their violation of mandatory regulations, in contravention of
Dalehite, Berkovitz, and Gaubert, if it can be claimed that
national security is involved. Alternatively, courts may
interpret it to mean that the discretionary function exception
does not apply to the military at all, in contravention of Varig.
In one stroke, the Fourth Circuit has abandoned the standards
for Government liability that have been refined in nearly fifty
years of decisions by this Court and has substituted a new test
whose boundaries are completely uncharted and at odds with
other circuits. Certiorari should be granted to correct this
dangerous precedent before the guidelines set by this Court
become shrouded in a fog of new exceptions.

I

The Decision of the Court of Appeals Is in Conflict with
Decisions of Three Other Circuits

The opinion of the court of appeals not only ignores the
guidelines of this Court; it stands in opposition to a long-
established body of law in other circuits that has held pilots
and other military personnel accountable for operational
negligence in the course of their duties. If the opinion of the
court of appeals is allowed to stand, these disparate
interpretations of the FICA will frustrate the uniform
interpretation of the statute and other statutes, such as the
Suits in Admiralty Act, that adopt the FTCA’s principles.

In holding that the Government may not be sued for
operational negligence involving national security, the Fourth
Circuit has set itself in opposition to at least three other circuits

if the interceptor crew knew or believed that an unsafe condition existed.
See note 6, supra.

15

that have considered similar situations. In Peterson v. United
States, 673 F.2d 237 (8th Cir. 1982) the Government was held
responsible for damage resulting from excessive noise of an
aircraft that was off course. The court held that the planning
of the military mission was a discretionary function but that
the discretionary function exception ‘does not protect the
United States from liability for operational negligence in
carrying out such a mission.”’ Jd. at 240. In Ward v. United
States, 471 F.2d 667, 670 (3rd Cir. 1973) the Third Circuit
reached a similar conclusion, observing that “The same
distinction is applicable to the operation of aircraft” as applies
between ordering army maneuvers and operating army
vehicles during the maneuvers. In United Air Lines, Inc. y.
Wiener, 335 F. 2d 379 (9th Cir.), cert. denied, 379 U.S. 951
(1964) the Ninth Circuit held that the Government could be
held liable for a mid-air collision between a military jet and a
civilian aircraft even though part of the alleged negligence
involved the planning of the military maneuvers. The court
held that the applicable Air Force regulations “‘imposed a clear
duty upon Nellis Command to design flying procedures in light
of facts obtainable from a study of commercial passenger air
traffic in the area.”’ Jd. at 394.

Although the court of appeals tried to distinguish some of
these precedents on the grounds that they involved training
exercises (A-16) these precedents do not draw this distinction.
Nor, in other situations where national security was arguably
imperiled, have any other courts or the Government itself seen
fit to draw such a distinction. Thus, in Downs y. United States,
522 F.2d 990 (6th Cir. 1975), the Sixth Circuit held the
Government liable for negligence of FBI agents in mishandling
a hijacking. The court invoked traditional discretionary
function principles, finding that the agents “were not involved
in formulating governmental policy,” but rather “the chief
agent was engaged in directing the actions of other
Government agents in the handling of a particular situation.”
Id. at 997. Moreover, in circumstances closely analogous to
those at bar, involving the evacuation of orphans, military and
civilian personnel from Saigon in emergency circumstances,

16

shortly before the city’s fail, the Government conceded
liability for negligence that resulted in the crash of an Air
Force cargo plane. See, Schneider v. Lockheed Aircraft Corp.,
658 F.2d 835, 840 (D.C. Cir. 1981), cert. denied, 455 U.S. 994
(1982).

The existence of a body of settled law in conflict with the
decision of the court of appeals increases the likelihood that
the decision will create confusion. One of the important
functions of this Court is to resolve such conflicts. See, S. Ct.
R. 10.1(a).

Il

The Decision of the Court of Appeals
Creates an Exception to the Federal Tort
Claims Act for Activities Involving National Security
that Is Contrary to the Congressional Intent
and the Plain Language of the Statute

Although this action was not brought under the Federal Tort
Claims Act, as we have seen, the scope of the discretionary
function exception is common to both the FTCA and the Suits
in Admiralty Act.'* The decision of the court of appeals
endorses an interpretation of the discretionary function
exception of the FTCA that is inconsistent with the remainder
of the act. It would render the FICA’s exception for
“combatant activities ... during time of war,’ meaningless.

The discretionary function exception is only one of thirteen
specific categories of claims that are excepted from coverage
under the FTCA. As we have seen above, the drafters of the
FTCA viewed the discretionary function exception as one that
addressed issues of “‘policy judgment and decision.” Dalehite,
346 US. at 36. A separate exception defined the limited
circumstances in which operational negligence by military
employees would be protected. The exception provides that

14. The court below correctly noted that “Each circuit that has
considered the matter has concluded that actions brought under the SAA
which would require the court to re-examine discretionary acts taken by
the government must be dismissed” (A-10). It cited cases from eight
circuits and two district court decisions.

17

the act shall not apply to “Any claim arising out of the
combatant activities of the military or naval forces . . . during
time of war.” 28 U.S.C. § 2680()).

The combatant activities exception to the FTCA is similar
to the newly enunciated “national security’ exception
proffered by the court of appeals. Both exceptions are absolute
and confer complete immunity on the Government for
negligence by military personnel engaged in specified kinds of
activities. Neither exception requires the court to consider the
nature of the allegedly negligent act, the level at which the
negligence occurred, or the policy implications of the
negligence. Thus, the effect of both exceptions is identical.
Since combatant activities in time of war will always invoke
national defense considerations, the effect of the panel’s
opinion is to make the combatant activities exception to the
FTCA redundant.

Nothing in the plain language of the FTCA or in the
construction of the act in the courts suggests that 28 U.S.C.
§ 2680(j) was meant to be surplusage, duplicating protections
for military combatants that were already established under
separation of powers principles. On the contrary, courts have
uniformly held that the military’s immunity from suit in
quasi-combat situations is narrowly limited. See, e.g. In re
“Agent Orange’ Product Liability Litigation, 580 F. Supp.
1242, 1255 (E.D.N.Y.) (Weinstein, J.), app. dismissed, 745
F.2d 161 (2d Cir. 1984) (“the term ‘combatant activities’
should be interpreted very narrowly”); Skeels v. United States,
72 F. Supp. 372, 374 (W.D. La. 1947) (“combatant
activities... means engaging in the exercise of physical
force’).

Consistent with this narrow interpretation of the combatant
activities exception, courts have refused to apply the exception
in circumstances where military personnel were not involved
in a direct encounter with a hostile enemy. See, e.g., Johnson
v. United States, 170 F.2d 767 (9th Cir. 1943) (negligent
discharge of oil by vessel returning from convoy not excepted);
Kuhne y. United States, 267 F. Supp. 649 (E.D. Tenn. 1967)
(claim for death of civilian electrical engineer employed at Oak

18

Ridge in connection with production of atomic bomb not
barred); Moran Towing & Transp. Co. y. United States, 80 F.
Supp. 623, 631, (S.D.N.Y. 1948) (naval vessel “‘at sea in time
of war, engaged on a military mission” was not engaged in
combatant activity because “‘the phrase was used to denote
actual conflict, such as where the planes and other
instrumentalities were being used...in bombing enemy-
occupied territory, forces or vessels, attacking or defending
against enemy forces, etc.”’).

As this Court noted in Rayonier, Inc. v. United States, 352
U.S. 315, 320 (1957), “There is no justification for this Court
to read exemptions into the [FTCA] beyond those provided by
Congress.”” The court of appeals has created a new exemption
for activities involving “national security” that broadens the
military’s immunity from suit for negligence far beyond the
scope contemplated in the plain language of the statute or any
previous authority. The decision is an invitation or mandate
for lower courts to ignore the plain language of the FTCA and
other statutes and to impose the views of judges over the will
of elected representatives. Congressional intent should not be
so lightly thwarted. This Court should grant certiorari to
review this opinion.

‘ov et ah heli, Te

19

CONCLUSION

Certiorari should be granted to address the conflict between
the decision of the court of appeals and those of this Court and
other circuits, and to address an important question of federal
law concerning the Government’s liability to civilians for
operational negligence by servicemen.

Respectfully submitted,

MICHAEL J. PANGIA*

GILMAN, OLSON & PANGIA

1815 H Street, N.W., Suite 600
Washington, D.C. 20006

(202) 466-5100

NICHOLAS H. Copps

LAw OFFICE OF NICHOLAS H. Cosps
1815 H Street, N.W., Suite 600
Washington, D.C. 20006

(202) 452-8222

FRANK ANTHONY MIKA

P.O. Box 1286

Waynesboro, Virginia 22980
(703) 942-4181

* Counsel of Record

A-1!

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 90-3014

Patsy O. TIFFANY, Administratrix and Personal
Representative of the Estate of Henry H. Tiffany, Deceased,
Plaintiff-Appellee,

versus
UNITED STATES OF AMERICA,
Defendant & Third Party Plaintiff-Appellant,
versus

BRANDON LADD CORPORATION,
Third Party Defendant-Appellee.

No. 90-3022

Patsy O. TIFFANY, Administratrix and Personal
Representative of the Estate of Henry H. Tiffany, Deceased,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant & Third Party Plaintiff-Appellee,
versus
BRANDON LADD CORPORATION,
Third Party Defendant-Appellee.

Appeals from the United States District Court for the Western
District of Virginia, at Charlottesville. James H. Michael, Jr.,
District Judge. (CA-84-100-C)

Argued: January 7, 1991 Decided: April 30, 1991

Before WILKINSON and WILKINS, Circuit Judges, and ELLIs,
United States District Judge for the Eastern District of

Virginia, sitting by designation.
Reversed and remanded by published opinion. Judge

Wilkinson wrote the opinion, in which Judge Wilkins and
Judge Ellis joined.

A-2

ARGUED: Thomas Barton Almy, Senior Aviation Counsel,
Civil Division, UNItTED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant. Wilton Jeremain Smith,
GILMAN, OLSON & PANGIA, Washington, D.C., for Appellees.
On Brier: Stuart M. Gerson, Assistant Attorney General, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; John P. Alderman, United States Attorney,
E. Montgomery Tucker, Assistant United States Attorney,
Roanoke, Virginia, for Appellant. Michael J. Pangia, GiLMAN,
OLson & PANGIA, Washington, D.C.; Frank Anthony Mika,
Waynesboro. Virginia, for Appellee Tiffany; John J. Tigert,
VI, Kathryn A. Ledig, Tarr, Stertmius & HOLLISTER,
Washington, D.C., for Appellee Brandon Ladd Corporation.

WILKINSON, Circuit Judge:

Henry Tiffany and six passengers were killed following a
midair collision between their Beech Baron airplane and a
United States F-4C fighter jet. Tiffany had failed to activate a
flight plan and thus had entered an air defense zone off the
eastern coast of the United States as an unidentified and
potentially hostile aircraft. Military authorities had dispatched
two fighter jets to identify visually the unknown plane. The
collision occurred in poor weather conditions seconds after
one of the jets instituted a sharp left bank to avoid Tiffany’s
Baron. Tiffany’s widow brought suit against the United States
under the Death on the High Seas Act, 46 U.S.C. §§ 761-68,
alleging that the military pilot and ground control had been
negligent in their conduct of the intercept. The district court
returned a verdict in favor of Tiffany. Because to entertain the
allegations of negligence in this case would lead us to violate
separation of powers principles which inform the discretionary
function exceptions to the Federal Tort Claims Act and the
Suits in Admiralty Act, we reverse the judgment.

I.

Henry Tiffany, a licensed civilian pilot, planned to fly his
small Beech Baron airplane with six passengers from Nassau,
Bahamas to Norfolk, Virginia on January 3, 1983. Although
Tiffany was aware that the United States Customs Service

mre ae

A-3

required him to pass through Customs in Florida, see
19 C.F.R. § 6.14 (1983) (in 47 Fed. Reg. 12,621-22 (1982)), he
nevertheless attempted to file with the Bahamian Flight
Service Station a flight plan for direct travel to Wilmington,
North Carolina instead. The Bahamian authorities refused to
accept Tiffany’s initial flight plan and persuaded Tiffany to
modify the plan to include a stop at Fort Pierce, Florida in
order to satisfy the Customs requirement.

Filed flight plans are vital for all planes traveling into United
States air zones. This is true not only because of Customs
regulations but because of our system of national defense as
well. Extending hundreds of miles into the Atlantic Ocean
from the eastern coast of the United States is an Air Defense
Identification Zone (ADIZ) established by the North American
Air Defense Command (NORAD), an agent of the
Department of Defense. NORAD is a joint military
command composed of American and Canadian forces which
have responsibility for maintaining the aerial defense of the
North American continent. Its peacetime mission is “‘to detect
and identify any unusual air activity within the perimeter areas
of the North American Continent which might be prejudicial
to the national interests, or indicate an imminent air attack
against vital targets in the United States and Canada, and to
restrict violations of sovereign airspace.””’ NORAD Regulation
55-14 7 2.a (May 5, 1980). To achieve these goals, NORAD
must identify “[aJll airborne objects detected entering or
operating within an identification zone.” Jd. { 5.a.

Both to facilitate that task and to protect civilian aircraft,
Federal Aviation Regulations require all aircraft intending to
penetrate an ADIZ to first file a flight plan. 14 C.F.R. § 99.11
(1983). If NORAD radar shows an aircraft in the ADIZ and
that aircraft correlates with a filed flight plan, then NORAD
can classify the plane as “friendly” and take no further steps
towards verifying its identity. If the observed aircraft does not
correlate with a filed flight pian, then NORAD must
investigate further. This process is often accomplished by
launching armed fighter planes to observe and visually identify
the unknown aircraft. Relevant information may also be
coilected from a number of sources, including Customs

A-4

officials, adjacent air defense control facilities, other aircraft in
the vicinity of the unknown, and civilian Air Traffic Control
facilities, which may possess late flight plan or radar
information.

NORAD has two minutes from the time it first detects an
aircraft in an ADIZ to ciassify it as “friendly.” NORAD
Regulation 55-14 1 5.c. After that time it must classify the
aircraft as “unknown” and “continuously pursue[ ]” all
methods of identification. Jd. 1 6.b.3. No classification is ever
permanent; even a plane initially recognized as “friendly” can
be reclassified if its creates “‘suspicion as to its intent by reason
of course, speed, altitude, radio/telephone procedures,
maneuvers, flight size ... or other abnormality.” Jd. 17 5.c.1,
6.b.2. In 1982, the year before Tiffany’s crash, the 20th
NORAD Region, operating out of Fort Lee Air Force Station
near Petersburg, Virginia, encountered two hundred thirty-
eight “unknown” planes. Interceptor aircraft were launched in
one hundred ninety-two instances and visually identified sixty-
six planes. The remainder were reclassified “friendly” on the
basis of information received from other military or civilian
facilities. Also in 1982, the 20th NORAD Region intercepted
ten Soviet bloc aircraft operating off the east coast between
Florida and Virginia.

Despite the tremendous practical importance as well as the
legal necessity of filing accurate flight plans, Tiffany left
Nassau slightly before 2:00 p.m. on January 3 without ever
activating his modified flight plan. Flight plans that have been
filed but not activated within one hour of takeoff are
considered void. Thus, Tiffany was flying without an official
flight plan and without any verified destination. Apparently
he had decided against complying with Customs regulations
and instead chosen to follow his original plan to fly directly
north from Nassau. In addition, although other federal
regulations required that he contact FAA traffic controllers in
the United States before entering an ADIZ, 14 C.F.R. § 99.21
(1983), Tiffany failed to establish radio contact with any FAA
Air Traffic Control facility until 4:31 p.m., when he was well
within the ADIZ—by his estimate a mere fifty miles off the
North Carolina coast.

bd

A-5

A few minutes after 4:00 p.m., the 20th NORAD Region’s
radar system in Fort Lee, Virginia (FERTILE) detected an
aircraft within the AI .Z that was heading north towards the
North Carolina coast. The plane did not correlate with any
filed flight pian and NORAD consequently classified it as
“unknown.” Two F-4 fighter planes were launched from an
Air Force base in North Carolina to determine visually the
type of the unidentified aircraft. The military planes reported
““popeye”’ conditions at altitudes below thirteen to fourteen
thousand feet, meaning that visibility was extremely restricted
because of clouds. One of the F-4’s attempted to make a
visual identification pass of the unknown plane but its angle of
approach was too steep and the pass was canceled.

Meanwhile, Tiffany had established radio contact at
4:31 p.m. with Federal Aviation Administration (FAA) air
traffic controllers in Leesburg, Virginia. Although his Baron
did not yet appear on the FAA radar system, Tiffany informed
the controllers that he was approximately fifty miles south of
New Bern, North Carolina and flying at an altitude of 9500
feet. At 4:37 p.m., however, he corrected his position and
indicated he was actually fifty-six miles from Wilmington,
North Carolina, a city located seventy-five miles southwest of
New Bern. He also gave the air traffic controllers the make
and model of his aircraft, information that NORAD would
require before changing the plane’s status to “‘friendly”’ based
on FAA communications.

Both the FAA and Tiffany, as civilian entities, operated on
VHF radio frequencies, while the military operated on UHF
frequencies. Thus, although Tiffany could communicate with
the FAA, and the F-4’s could communicate with NORAD
ground control (FERTILE), the Baron and the military aircraft
could not contact each other. Exchanges between the military
and civilian systems could occur only through separate ground
circuits. Information that Tiffany relayed to FAA controllers
thus had to pass through numerous hands to reach decision
makers at FERTILE, a process which incorporated some
delay. FERTILE controi was in contact with the FAA
throughout the intercept process.

A-6

At 4:41 p.m., a few minutes after Tiffany had given civiliar
authorities his corrected position, one of the F-4’s, with call
sign ‘‘JL-26,”’ established contact with Tiffany’s Baron by on-
board radar. Seconds later, that plane “called a Judy,” or
indicated that it was taking control of the intercept and would
complete the identification through use of its on-board radar.
What happened next is not entirely clear. At 4:42:20, the
FAA sent a message to FERTILE which indicated that it had
positively identified Tiffany by radar and that the Baron was
six to seven miles ahead of the fighter planes. Although
FERTILE received at least part of this transmission, an official
transcript showed that some of the message had not been
received. Nevertheless, at 4:43:42, the status of the unknown
track was changed to “friendly” in FERTILE’s computer
system, and at 4:44:21, the FERTILE control officer decided
to terminate the intercept. That decision was relayed to plane
JL-26 at 4:44:42, a few seconds before the collision.

During this period, JL-26 had been approaching Tiffany
from behind; the fighter was below the Baron and to its left,
according to both the ground radar reconstruction and the
pilot’s testimony based on his on-board radar. Ground control
had instructed the F-4 to maintain at least a five hundred foot
separation from the unknown. As JL-26 drew nearer, its radar
screen displayed a “Break X,” meaning that the plane had
approached so close to the target that it could not fire its
missiles. A Break X occurs at a distance of approximately
one-half nautical mile. The F-4 then initiated a sharp left
bank to break off the intercept.

While JL-26 was rapidly gaining ground, FAA controllers
informed Tiffany that two F-4’s were behind him. They also
requested that Tiffany head towards New Bern, North
Carolina instead of towards Norfolk. That direction would
have required that Tiffany make a left turn. The FAA
transcript shows that around 4:44 p.m., Tiffany responded,
““we’re fading to the right ah we’ve deviated .. . yea we can go
direct New Bern now.” Within seconds, the F-4’s left wing
collided with the Baron. The smaller plane fell into the
Atlantic and no survivors were located. Although damaged,
the F-4 was able to return to its home base.

A-7

The accident proved a difficult one to reconstruct. A radar
reconstruction report by the National Transportation Safety
Board (NTSB) confirmed that the F-4 had been steadily
gaining altitude and then initiated a sharp left turn (roll angle
of greater than twenty degrees) at least eight seconds before it
collided with Tiffany’s Baron. A second report by the NTSB
analyzed the damage to the F-4’s left wing and the relative air
speeds of the two airplanes. That collision report indicated
that the F-4 had been descending relative to the Baron, and
that the difference in roll (or turn) angle between the two
planes had been only 3.6 degrees. The NTSB harmonized the
two reports by concluding that the Baron had also initiated a
left turn. If the Baron had not changed altitude but had begun
a left turn, the ascending F-4 could have impacted the smaller
plane and the difference in turning angles would have appeared
as if the F-4 had been descending on the Baron. The radar
reconstruction did not indicate that Tiffany had initiated a Icft
turn, however. Possible explanations of that discrepancy
include a masking effect due to the larger F-4, a gap in the
radar coverage due to the time between radar antenna
revolutions, and an error in the collision report because
Tiffany did not actually turn left.

Tiffany’s wife, as the representative of his estate, brought
suit in the United States District Court for the Western District
of Virginia against the United States under the Death on the
High Seas Act (DOHSA), 46 U.S.C. $§ 761-68, claiming that
the United States negligently caused Tiffany’s death. Brandon
Ladd Corporation, which leased the Beech Baron to Tiffany,
sought damages from the United States to compensate for the
loss of the plane. The United States brought a counterclaim
against Tiffany’s estate for damage to the F-4 jet and sought
contribution from Brandon Ladd as a third-party defendant.
The survivors of the six passengers initiated suits against both
Tiffany and the United States which were settled.

A bench tnal was conducted. The district court found that
the government was negligent because it failed to terminate the
intercept when it had sufficient information to do so, because
ground control failed to tell the pilot of JL-26 to correct a 180
foot error in its altimeter, and because the pilot “continued a

A-8

mission designed for a visual identification in weather
effectively precluding such an identification, misidentified the
position of the Baron aircraft relative to its position, turned left
and ascended when the procedures called for a descent and a
right turn, and failed to maintain the proper amount of
vertical separation.”’” The court found the United States liable
to Tiffany’s estate for $1,394,342 in lost income from
Tiffany’s law practice, and liable to Brandon Ladd for $45,000
for the loss of Baron.

The United States appeals.

il.

The negligence alleged in this case necessarily calls into
question the government’s most important procedures and
plans for the defense of the country. Because providing for the
national security is both a duty and a power explicitly reserved
by the Constitution to the executive and legislative branches of
government, the judiciary must proceed in this case with
circumspection. If we were to hold that the United States
acted negligently in conducting the defense of its eastern
border, we would be interjecting tort law into the realm of
national security and second-guessing judgments with respect
to potentially hostile aircraft that are properly left to the other
constituent branches of government.

A.

We first proceed to address the relation between separation
of powers principles and the relevant federal statutes.
Section 2 of the Suits in Admiralty Act (SAA), codified as
amended at 46 U.S.C. §§ 741-52, allows suits against the
United States if the plaintiff would have been able to bring an
admiralty claim against a private party which acted as the
government did. 46 U.S.C. § 742. Because the Death on the
High Seas Act (DOHSA) provides Tiffany a cause of action in
admiralty, see 46 U.S.C. § 761, the SAA allows the suit to
proceed without a sovereign immunity bar. See Williams y.
United States, 711 F.2d 893, 895 (9th Cir. 1983).

That a federal statute enables the courts to assert jurisdiction
only begins the analysis, however. Constitutional demands

A-9

must still be satisfied. Separation of powers is “a doctrine to
which the courts must adhere even in the absence of an explicit
statutory command.” Canadian Transport Co. v. United
States, 663 F.2d 1081, 1086 (D.C. Cir. 1980). That doctrine
requires that we examine the relationship between the
judiciary afd the coordinate branches of the federal
government cognizant of the limits upon judicial power. The
Supreme Court, in Baker v. Carr, 369 U.S. 186, 217 (1962),
identified a number of factors, any one of which may carry a
controversy beyond justiciable bounds:

a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an
initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a court’s
undertaking independent resolution without expressing
lack of the respect due coordinate branches of
government; or an unusual need for unquestioning
adherence to a political decision already made; or the
potentiality of embarrassment from multifarious
pronouncements by various departments on one
question.

Thus, if resolution of the issues presented by Tiffany requires
us to move outside the customary areas of judicial competence
or if other “prudential considerations counsel against judicial
intervention,” Goldwater v. Carter, 444 U.S. 996, 998 (1979)
(Powell, J., concurring), then we must conclude that the
controversy is nonjusticiable.

In tort cases brought against the government, these
constitutional concerns are addressed through recognition of a
“discretionary function” exception to government liability.
The Federal Tort Claims Act (FTCA), which governs accidents
occurring within the borders of the United States, did not
waive sovereign immunity to claims ‘‘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). The

A-10

Supreme Court has further recognized Congress’ belief that
‘claims of the kind embraced by the discretionary function
exception would have been exempted from the waiver of
sovereign immunity by judicial construction.” United States v.
S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797, 810 (1984). It is plain that the discretionary
function exception to tort liability serves separation of powers
principles by ‘“prevent{ing] judicial ‘second-guessing’ of
legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an
action in tort.” Jd. at 814. Were it otherwise, the cumulative
force of liability ‘“‘would seriously handicap efficient
government operations.”” United States v. Muniz, 374 USS.
150, 163 (1963).

The respect for separation of powers principles addressed
through the discretionary function exception of the FTCA has
been carried over into suits brought under DOHSA and SAA.
Our recognition of the constitutional constraints on actions
brought under those acts is not a novel phenomenon. We held
in Tozer v. LTV Corp., 792 F.2d 403 (4th Cir. 1986), that a
negligence action pursuant to DOHSA and SAA could not be
maintained against a government military contractor because
of separation of powers concerns. There we noted that it
would have been unseemly for ‘“‘a democracy’s most serious
decisions, those providing for common survival and defense,
[to] be made by its least accountable branch of government.”
Id. at 405. Earlier, in Faust v. South Carolina State Highway
Dept., 721 F.2d 934 (4th Cir. 1983), this court refused to
review a negligence claim in admiralty that challenged the
Corps of Engineers’ discretionary issuance of a permit.* Each
circuit that has considered the matter has concluded that
actions brought under the SAA which would require the court
to re-examine discretionary acts taken by the government

* In noting that “[i]t has authoritatively been held that the exercise of the
function to issue permits is an unreviewable discretionary function,” the
court in Faust necessarily narrowed Lane v. United States, 529 F.2d 175
(4th Cir. 1975), and recognized the existence of a discretionary function
exception to the Suits in Admiralty Act in some circumstances. 72! F.2d at

939. We think for the reasons stated herein that this is one of those
circumstances.

A-11

must be dismissed. See Gercey v. United States, 540 F.2d 536,
539 (1st Cir. 1976); In re Joint E. and S. Dists. Asbestos
Litigation, 891 F.2d 31, 35 (2d Cir. 1989) [hereinafter
Asbestos]; Sea-Land Serv., Inc. v. United States, 919 F.2d 888,
891 (3d Cir. 1990); Wiggins v. United States, 799 F.2d 962,
966 (Sth Cir. 1986); Gemp v. United States, 684 F.2d 404, 408
(6th Cir. 1982); Bearce v. United States, 614 F.2d 556, 560
(7th Cir. 1980); United States Fire Ins. Co. v. United States,
806 F.2d 1529, 1535 (11th Cir. 1986); Canadian Transport
Co. yv. United States, 663 F.2d 1081, 1086 (D.C. Cir. 1980);
see also Complaint of Valley Towing Serv., 609 F. Supp. 298,
301 (E.D. Mo. 1985); Olympia Sauna Compania Naviera,
S.A. v. United States, 670 F. Supp. 1498, 1504 (D. Or. 1987),
aff'd without opinion, 1989 Am. Maritime Cases 1216 (9th
Cir. 1988). ‘‘Were there no such immunity for basic policy
making decisions, all administrative and legislative decisions
concerning the public interest ... would be subject to
independent judicial review in the not unlikely event that the
implementation of those policy judgments were to cause
private injuries.”” Gercey, 540 F.2d at 539. We agree that
assumption of such powers would be “‘intolerable under our
constitutional system of separation of powers.”’ Asbestos, 891
F.2d at 35.

While the doctrine of discreticnary functions recognized
under the FTCA and DOHSA thus informs our inquiry into
the disposition of the present controversy, the discretionary
function exception alone does not capture all the important
aspects of this case. For “‘[jJusticiability is of course not a legal
concept with a fixed content or susceptible of scientific
verification. Its utilization is the resultant of many subtle

pressures....” Poe v. Ullman, 367 U.S. 497, 508 (1961)
(Frankfurter, J.) (cited in Flast v. Cohen, 392 U.S. 83, 95
(1968)).

B.

The present controversy implicates a discretionary decision
of the most serious sort. It involves a civilian injury that
followed from actions taken in actual military defense of our
country. Of the legion of governmental endeavors, perhaps

A-12

the most clearly marked for judicial deference are provisions
for national security and defense. See Rostker v. Goldberg,
453 U.S. 57, 64-67 (1981). The decisions whether and under
what circumstances to employ military force are
constitutionally reserved for the executive and legislative
branches. See, e.g., U.S. Const. art. Il, § 2; art. I, § 8. With
regard to decisions to employ military troops, “it is not the
function of the Judiciary to entertain private litigation ...
which challenges the legality, the wisdom, or the propriety of
the Commander-in-Chief in sending our armed forces abroad
or to any particular region.”” Johnson y. Eisentrager, 339 US.
763, 789 (1950). “Orderly government requires that the
judiciary be as scrupulous not to interfere with legitimate
Army matters as the Army must be-scrupulous not to
intervene in judicial matters.”” Chappell v. Wallace, 462 U.S.
296, 301 (1983) (quoting Orloff v. Willoughby, 345 U.S. 83,
94 (1953)).

The strategy and tactics employed on the battlefield are
clearly not subject to judicial review. See, e.g., DaCosta v.
Laird, 471 F.2d 1146, 1155-56 (2d Cir. 1973) (challenge to
presidential directive to mine Vietnamese harbors and
continue air and naval strikes presents a nonjusticiable
political question). “[TJhe same considerations which
preclude judicial examination of the decision to act must
necessarily bar examination of the manner in which that
decision was executed by the President’s subordinates.”
Rappenecker vy. United States, 509 F. Supp. 1024, 1030 (N.D.
Cal. 1980). Not only do courts lack the expertise to evaluate
military tactics, but they will often be without knowledge of
the facts or standards upon which military decisions have been
based. Id. at 1029 (alleged negligence in military action to free
a captured vessel was nonjusticiable).

It matters not that the military decision here involves the
defense of national borders rather than the projection of force
abroad. The elementary canons of judicial caution are not
limited to actions taken during actual wartime, but may
extend to many other aspects of military operations. In
declining to rule on the allegation that the training, weaponry

to

A-13

and orders of a state National Guard program made inevitable
the unnecessary use of fatal force, the Supreme Court declared:

It would be difficult to think of a clearer example of
the type of governmental action that was intended bv the
Constitution to he left to the political branches directly
responsible—as the Judicial Branch is not—to the
electoral process. Moreover, it is difficult to conceive of
an area of governmental activity in which the courts
have less competence. The complex, subtle, and
professional decisions as to the composition, training,
equipping, and control of a military force are essentially
professional military judgments, subject a/ways to
civilian control of the Legislative and Executive
Branches.

Gilligan v. Morgan, 413 U.S. 1, 10 (1973).

So too does this case beckon courts into “‘complex, subtle,
and professional [military] decisions,” involving here the
identification and interception of potentially hostile aircraft in
our air zones. The Court declined to be drawn into such
discretionary military decisions in Boyle vy. United
Technologies Corp., 487 U.S. 500 (1988), where a Marine
helicopter pilot’s estate sued the government for an allegedly
defective aircraft design. It recognized that selection of an
appropriate design for military equipment was a function
reserved for the armed forces because such decisions involved
“not merely engineering analysis but judgment as to the
balancing of many technical, military, and even social
considerations, including specifically the trade-off between
greater safety and greater combat effectiveness.”’ Jd at 511.
To have permitted state tort law to enter and alter the equation
would have been to allow judicial reappraisal of judgments
that is constitutionally forbidden. Jd.; see Varig Airlines, 467
U.S. at 814.

We kkewise hold that Tiffany cannot reshape the national
response to threats of hostile air attack through the mechanism
of tort law. Because Tiffany failed to comply with federal
regulations, NORAD confronted an unidentified aircraft
which had entered an air defense zone initially undetected, and
which was heading directly for the continental United States.

A-14

The potential danger to American lives that such a scenario
presents is apparent. NORAD was forced to initiate protective
measures.

The executive and legislative branches have accorded
NORAD the authority and the substantial responsibility of
protecting the nation’s borders. Thus, NORAD is the party
that must balance the “many technical, military, and even
social considerations’ when developing a system of identifying
unknown aircraft. Boyle, 487 U.S. at 511. It must weigh the
necessity of precise identification against the resulting risks to
its own pilots’ safety and it must balance the need to protect
the civilian population on the ground with the need to protect
civilian aircraft which enter into air defense zones without
filing flight plans.

Such delicate appraisals of relative dangers were not
ultimately consigned by Congress to the courts. Courts are not
in a position to dictate to a branch of the Department
of Defense how it should react when it faces unknown
and potentially hostile aircraft. Myriad possibilities for
mischievous judicial inquiry abound: whether planes should
have been sent at all; the proper number of planes; the routes
they flew; the angles of the intercepts; the correct distance from
the target; the proper reaction to weather conditions; the
quality of the on-board radar system; the compatibility of
communications systems. The list of inquiries is virtually
endless and the umbrella of negligence would encompass
them all. Courts cannot impose their own concept of “the
prudent intercept” on NORAD. Judges have no “‘judicially
discoverable and manageable standards for resolving” whether
necessities of national defense outweigh risks to civilian
aircraft. Baker v. Carr, 369 U.S. at 217. Nor can we even
“undertak[e] independent resolution without expressing lack
of the respect due coordinate branches of government.” /d.
Any judgment we might render would lay upon NORAD a
strata of tort law which would be both capricious and
confining in its impact.

A-15

iil.

Tiffany argues nonetheless that this court can award her a
recovery without expressing any lack of respect for coordinate
branches of government. In her view, the protected decisions
with which we should not interfere have already been made in
the form of NORAD and USAF regulations, manuals, and
procedures. Thus, she contends, the court can inquire into
whether government agents followed those regulations without
exercising authority to which it is not entitled. See Berkovitz v.
United States, 486 U.S. 531, 536 (1988). An alleged failure to
follow regulations is not only justiciable, she believes, but
presents a case of actionable negligence.

Three reasons counsel rejection of this argument. First, the
mere fact that NORAD established routine operating
procedures cannot convert this dispute into a justiciable issue
when so many other factors counsel against judicial
intervention. Second, we do not believe that each NORAD or
Air Force regulation that designates internal operating
procedures automatically gives rise to an actionable duty in
tort to comply with them. Third, an examination of the
regulations in question reveals that they actually reserve a
great deal of discretion for the parties who must conduct the
defensive maneuvers.

First, to say that because internal regulations exist, the
barriers to judicial involvement are removed is too simple a
proposition. Instead, we must inquire “‘into the precise facts
and posture of the particular case’”’ while noting “the
impossibility of resolution by any semantic cataloguing.”
Baker v. Carr, 369 U.S. at 217. Even if we were to agree that
the regulations provided standards against which NORAD’s
conduct could be measured, that conclusion would hardly
compel that the courts do so if other “prudential
considerations” counseled against it. Goldwater v. Carter, 444
U.S. at 998 (Powell, J., concurring).

Here, we conclude that precisely such other powerful factors
foreclose judicial entertainment of Tiffany’s assertions. Those
factors have been discussed at length in the preceding section
and shall not be repeated here. Simply put, NORAD must

A-16

have some freedom to design and to conduct missions with
regard to hostile aircraft without fear that courts will
afterwards assess damages in the belief that the mission might
have been accomplished better. The presence of regulations
does not change the reality that legislative and executive
oversight of these particular military missions is to be preferred
to that of the judiciary. Each intercept may present a unique
situation and demand a different response dependent not only
upon factors such as the prevailing weather conditions and
available information, but upon the state of foreign relations
and international tensions. In adapting to such variable
circumstances, the extent of compliance with relevant
NORAD manuals and regulations may be anything but clear.
Indeed, determining the extent of compliance with operating
procedures and regulations can itself be an _ endlessly
argumentative exercise. This determination must be in the
first instance a matter for military judgment, subject always to
the “‘power of oversight and control of military force by elected
representatives and officials which underlies our entire
constitutional system....”’ Gilligan v. Morgan, 413 U.S.
at 10.

We do not hold, of course, that any time a branch of the
military asserts a national defense interest to justify its acts, the
court must avert its eyes. The military does not enjoy a
blanket exemption from the need to proceed in a non-
negligent manner. When conducting training exercises, for
example, or acting in a civilian arena, national defense
interests may be more remote and the military faces different
restrictions. See, e.g., Peterson v. United States, 673 F.2d 237
(8th Cir. 1982) (B-52 plane on training mission liable for flying
too low in altitude); Ward v. United States, 471 F.2d 667 (3d
Cir. 1973) (Air Force might be liable for negligently causing
sonic booms). Nor do we here address the situation where a
civilian pilot properly filed and activated a flight plan and the
government negligently misplaced it. Those are different
circumstances from ones where actual military force was
initiated to investigate a potentially hostile aircraft.

We also cannot accept Tiffany’s assumption that NORAD
regulations automatically create an actionable duty in tort

A-17

towards civilians. Tiffany does not argue, as did the plaintiffs
in Berkovitz v. United States, 486 U.S. 531 (1988), that the
government violated any federal laws contained either in
statutes or in formal published regulations such as those in the
Code of Federal Regulations. ““There can be no doubt that the
mandate of a federal statute is a far stronger foundation for the
creation of an actionable duty...than [an] administrative
directive....”’ Zabala Clemente v. United States, 567 F.2d
1140, 1150 (1st Cir. 1977). As the First Circuit explained
while addressing whether FAA inspectors owed a duty to the
public:

[P}laintiffs cannot use the implicit sovereignty of the
government to argue that ali its internal
communications establish standards of care similar to
those created by duly promulgated laws of general
application. Not all acts and orders of the United States
government are so sovereign that they must be treated as
commands which create legal duties or standards, the
violation of which involves breaking the law. A
considerable part of the government’s conduct is in the
context of an employer-employee relationship, a
relationship which includes reciprocal duties between
the government and its staff, but not necessarily a legal!
duty to the citizenry.

Zabala Clemente, 567 F.2d at 1144. The court finally
concluded that an order to FAA staff to conduct inspections,
although mandatory, did not create an actionable duty to
passengers: “‘[w]e do not believe the Federal Tort Claims Act
was intended to expose the government to such limitless
liability....” Jd. at 1146.

Similarly, when Soviet military aircraft shot down a
commercial airliner that had strayed into Soviet air space,
relatives of passengers killed in the crash argued that NORAD
should have warned the airliner of its position. The alleged
duty to warn was based on Alaskan NORAD Region/Alaskan
Air Command Regulation 60-1, which provided: “‘[i]f it looks
like an aircraft is lost or may enter the Alaskan non-free flying
area...tell the nearest Federal Aviation Administration
Flight Service Station for civil aircraft....”’ Jn re Korean Air

A-18

Lines Disaster of September 1, 1983, 646 F. Supp. 30, 34
(D.D.C. 1986). While it was undisputed that the regulation
was an internal military directive that was binding on military
personnel, the court held that “‘[t]he testimony of personnel
working on an operational level that they believed they were
required to obey Reg. 60-1 does not support Plaintiffs’
contention that the United States owed a duty to Plaintiffs’
decedents.”” Jd. The regulation was simply inadequate to show
that the United States had “‘assumed ultimate responsibility
for rescuing civilian flights.”” Jd. at 34-35.

Tiffany has similarly not shown that NORAD guaranteed
through operational procedures the safety of all civilian
aircraft which enter an ADIZ without a flight plan. On the
contrary, it is difficult to see how the government actually
could make such a guarantee. Moreover, to base tort liability
in this situation on a failure to follow internal regulations
would have few positive outcomes. NORAD might well
respond by setting fewer procedures and regulations if each
could give rise to civilian tort suits. Such action could only
result in increased confusion and a loss of military efficiency.
Nor would any worthwhile goals be achieved if NORAD were
to state in boilerplate throughout its regulations that the rules
are not meant to create tort duties, or if NORAD responded
by promulgating regulations of a most permissive nature,
designed to retain maximal flexibility. Reflection upon such
consequences underscores the dangers of the intrusion of
undue tort liability into NORAD’s regulatory calculus.

Finally, many of the regulations that Tiffany argues were not
followed actually preserve significant discretion for the
necessary actors. For example, NORAD Regulation 55-14
(May 5, 1980) addresses the procedures for identification of air
traffic:

Once intercept action has been initiated against an
“Unknown,” positive visual recognition will be
completed within tactical and safety limitations, unless
the track can be positively reclassified “Friendly” by
other means prior to intercept. If there is reasonable
doubt as to validity of identification information .
visual recognition will be completed.

A-19

NORAD Regulation 55-14 1 6.b.4 (May 5, 1980). Large areas
of discretion reside within the above directive. The regulation
does not explain what circumstances might give rise to
“reasonable doubt’ about the validity of information, for
example.

Perhaps more importantly, the duty to identify rests on the
classification of the target aircraft as an “unknown,” and that
classification is discretionary. The regulation lists many
methods by which a plane can be declared “friendly” but does
not require NORAD to so deciare it even when the conditions
have beer fulfilled. Instead the methods are merely
permissive:

A track may be classified “‘Friendly”’ if it follows a plan
of flight in accordance with a prior arrangement between
the ADCF concerned and the aircraft operator{;] ...
voice authentication over air/ground channels ... may
be used as a means of determining the “Friendly”
identity of military aircraft[;] ... [if] there is a strong
possibility that the aircraft in question should correlate
with a flight plan received by the NORAD system, the
track in question may be declared ‘‘Friendly”’ if it is
transmitting a MODE 3/A code assigned by FAA/TC[;]
... Positional information obtained [via ATC agencies]
may be used to establish a reclassification of ‘‘Friendly.”

Id. 11 6.a.4, 6.a.6 to 6.a.8 (emphasis added). Not only are the
classification requirements permissive; they are also fluid.
Aircraft can be relabeled based on subsequent information
received at any time. Jd 1 5.c.1. Paragraph 6.b.2 allows
controllers to classify as “unknown’”’ “‘[a]Jny track, regardless
of its location, creating suspicion as to its intent by reason
of course, speed, altitude, radio/telephone procedures,
maneuvers, flight size, ECM activity, or other abnormality to
an extent that further investigation is deemed advisable.”
These regulations make clear that NORAD’s categorization of
aircraft and decisions as to the necessity of completing a visual
identification are discretionary in a way that would likely be
immunized, even under Tiffany’s proposed analysis.

Many of the tactics employed to conduct the intercept are
similarly discretionary in nature. An attachment to NORAD

A-20

Regulation 55-14 instructs that ““VFR and IFR interception
patterns will be in accordance with standard tactics prescribed
by the component command to whom the interceptor is
assigned.”” Attachment 2 { l.e. Thus tactics may vary from
command to command. In addition, the United States Air
Force Interceptor Weapons Instruction Manual 51-14
(May 15, 1978) informs pilots to “‘[kJeep in mind that there
should never be a ‘standard’ tactic and that the areas
mentioned here are more aimed at thought processes than
actual solutions.”” Ch. 6 (Visual Identification Intercepts) 6-1.
The district court observed that pilots also retain the authority
to “call a Judy,” or to take control of the intercept through use
of on-board radar. Finally, Regulation 55-14 1 9 explains that
““NORAD/ADCOM region commanders are authorized to
supplement this regulation, as required, to establish specific
responsibilities and operating procedures for their area.”

To hear Tiffany describe an intercept, the whole operation is
simply a rote mechanical exercise. Actually it is in significant
respects flexible and judgmental in nature. Tiffany’s assertions
that NORAD was negligent in not classifying the Baron as
“friendly” more quickly and in approaching it at a wrong
angle, for example, fall into the realm of discretion reserved by
the regulations themselves.

Therefore, the presence of NORAD regulations which speak
to intercept procedures does not change our analysis. We
continue to believe that the issues raised by Tiffany are not for
resolution by the courts, but are best left to those branches of
government whose expertise is greater and whose political
accountability is more direct.

BY.

It should be obvious that NORAD’s military strategy does
not project midair collisions as an element of the nation’s
defense. It should also be apparent that NORAD possesses a
keen interest in the safety of its own personnel and in that of
other pilots and passengers. Because manned intercept
procedures will always place NORAD’s own reputation,
equipment, and personnel at risk, the intercept system itself
has incentives to assure the safety of those who use the air. To

A-21

redesign the incentives through tort law, however, holds
hazards of its own. This tragedy occurred in midair; an
aircraft undetected by a risk-averse defense system might one
day visit a different sort of disaster, as lamentable in its own
way as this one is.

The judgment of the district court is reversed and the case is
remanded with directions to dismiss. The government’s
counterclaim is also dismissed.

REVERSED AND REMANDED

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

Patsy O. TirFany, Administratrix, CIVIL ACTION NOS. 84-0100-C
and Personal! Representative of 85-0004-C
the Estate of Henry H. Tiffany, 85-0040-C
Deceased, 85-0048-C

Plaintiff 85-0052-C
bis MEMORANDUM OPINION

TNITED STATES OF AMERICA,
Defendant and Third-Party
Plaintiff,
We
BRANDON LADD CORPORATION,
Third-Party Defendant

(In Re Air Crash Off Cherry Point,
North Carolina, January 9, 1983) Hon. JAMES H. MICHAEL, JR.

J

This matter arises out of a mid-air collision off the coast of
North Carolina at approximately 16:44:46 EST on January 9,
1983, between a civilian aircraft, a Beechcraft Baron BE 55,
and an F4-C phantom interceptor. The cause of action arises
under the Death on the High Seas Act (DOHSA), 46 U.S.C.
§ 761 et. seq. Plaintiff has brought the action on behalf of the
estate of the deceased, Henry Tiffany, pilot of the Baron, and is
seeking damages for pecuniary loss only, pursuant to 46
U.S.C. § 762. Offshoeres Logistics v. Tallentire, 477 U.S. 207
(1986). Defendant United States has counterclaimed for
- $209,895 against third-party defendant Brandon Ladd
Corporation, the lessee of the Baron Aircraft, for damage to
the F4-C. Brandon Ladd seeks $45,000 from the United
States for loss of the Baron.

After presentation of the evidence to this court, the
respective parties have moved for judgment in their favor.
Having carefully ccusidered the evidence, this court, sitting as
the sole trier of fact, finds that defendant United States bears

B-2

the liability for the collision and, as such, grants plaintiff's
motion for judgment and awards plaintiff damages in the
amount of $1,394,342.00. Since this court finds the actions of
the United States constitute the proximate cause of this
accident, the court denies the United States’ motion for
judgment against Brandon Ladd Corporation and finds that
Brandon Ladd is entitled to recover $45,000 as a consequence
of the loss of its Baron Aircraft.

I.

At the time of his death, decedent Henry Tiffany was an
experienced pilot with approximately 4,455 flying hours. He
was fully certificated and sufficiently experienced to make the
flight in question. Decedent possessed an instrument rating
which meant that he was qualified to fly in instrument
meteorological conditions. At approximately 13:00 EST,
January 9, 1983, decedent submitted a flight plan at the
Nassau, Bahamas, Airport which called for a flight to Norfolk,
Virginia, via Wilmington, North Carolina. Pilots are required
to enter flight plans when the intended flight would take the
craft through the Air Defense Identification Zone (ADIZ). 14
C.F.R. § 99. Decedent’s attention was directed by the flight
service station supervisor to a Notice to Airmen (NOTAM)
advising pilots entering the United States from the Caribbean
that they should clear customs at certain designated Florida
airports. Apparently because of the NOTAM, decedent refiled
a flight plan listing Fort Pierce, Florida, as his initial
touchdown point.

After leaving Nassau, decedent did not follow the accepted
practice of ‘‘activating”’ his flight plan by contacting the flight
service station. If not activated within an hour after takeoff,
filed flight plans are considered void and decedent’s revised
flight plan which had been filed with the Nassau flight service
station was then marked “DNA” [Did Not Activate].
Communications with the Bahamas being uncertain, it is
possible that decedent attempted to modify his flight plan after
takeoff. The court can only find that the plan was in fact not
activated, but the court also declines to read into this apparent
omission any intent on the part of decedent to deceive

B-3

NORAD (North American Aerospace Defense Command)
regarding the point of decedent’s penetration of the ADIZ.!

Rather than flying to Fort Pierce, Florida, decedent instead
headed north, as would have been called for by his initial flight
plan. At approximately 16:07:40, radar trackers at the
NORAD control headquarters at Fort Lee, Virginia,
(“FERTILE Control”) detected an unidentified aircraft flying
north toward the North Carolina coast. Since FERTILE
Control had no flight plan correlating to that radar track, the
aircraft was declared unknown. A responsibility of NORAD is
to track and identify aircraft penetrating the ADIZ. Ifa radar
target correlates with a filed flight plan, then the target is
declared friendly and it receives no additional NORAD
attention. If the target is classified as an unknown, it can be
declared as a friendly in one of two ways: either by obtaining
positional information from Air Traffic Control (ATC) centers
which will correlate with the unidentified target or by
identification pursuant to an interception.?

Pursuant to the designation of the Baron aircraft as an
unknown track, two F-4 phantoms were scrambled from
Seymour Johnson Air Force Base in Goldsboro, North
Carolina, to make an official identification of the Baron. After
the scramble, decedent attempted to contact the ATC facility
in Leesburg, Virginia (ARTCC) at 16:30:22. Apparently, he
received no immediate response but ARTCC did acknowledge
the call at 16:31:26, referring to decedent’s aircraft call sign
“7142N.” In this exchange, decedent told ARTCC that he
estimated his position to be approximately 50 miles south of
New Bern, North Carolina, an incorrect estimate, and his
altitude to be 9500 feet. Decedent requested radar assistance
to help him avoid some weather cells and informed ARTCC

1. Nor do the vagaries of decedent’s eventual flight plan or his initial,
incorrect estimate of his position off Wilmington, North Carolina,
discussed infra, suggest to this court any intent on decedent’s part to evade
detection. The claim of the United States to the contrary is effectively
rebutted by the decedent’s request to have the appropriate personnel ready
so that he might clear customs when landing in Norfolk.

2. Alternatively, an aircraft with a true air speed of less than 180 knots
can be classified as friendly. The record shows that decedent’s true air
speed at this time was in excess of 180 knots.

B-4

that he was “squawking 1200,” i., that the Baron’s
transponder was emitting a nonspecific squawk which denotes
visual flight rules.2 At 16:37:04, decedent communicated to
ARTCC that he had recalculated his position to be 56 miles
from the Wilmington VOR, a groundbased navigational
transmitter. In his communication, decedent also identified
for ARTCC the make and model of his aircraft.

By 16:37:42, ARTCC had passed to FERTILE Control
information about the Baron’s position, call sign, altitude, and
aircraft type. While this information was sufficient under
NORAD regulations to justify reclassifying the Baron as
friendly, the ATC officers sought to confirm this information.
The initial pass for a visual identification by the F-4s was
cancelled by FERTILE Control because they were “coming in
too hot,” that is, their angle of approach was too sharp for an
effective identification. The only information passed to the
F-4s was that their target was “at approximately 9000 feet.”
Since the F-4s communicated on military frequencies and the
Baron on civilian frequencies, the aircraft could not speak
directly to each other. Thus, data emanating from either the
F-4s or the Baron had to be relayed to ARTCC and FERTILE
Control and only after that thence to the other protagonist.
The court also finds that the F-4s were not given a local
altimeter setting when the aircraft descended below 18,000
feet so that their altimeters could be recalibrated for an
accurate altimeter reading. Thus, during the entire intercept
procedure, the altimeter of the F-4 involved in this collision,
JL-26, failed accurately to reflect its true altitude.

After repositioning, the F-4 which eventually collided with
the Baron obtained the Baron on its radar at 16:41:18 and at
16:41:54 “called a Judy” (indicating that this aircraft, JL-26,
was taking control of the intercept and was using its on-board
radar to complete the identification). At virtually the same
time, 16:41:55, ARTCC requested that the Baron perform an
“IDENT,” a procedure which causes the transponder to emit a
specific identification signal. Following this “IDENT,”

3. The transponder enhances the aircraft’s presence on a radar screen

» and transmits additional information which assists in identifying the
aircraft.

B-5

ARTCC advised FERTILE Control at 16:42:20 that “We just
had this ... Four Two November IDENT and that is him
down there at Juliet Lima’s [the F-4C] twelve o’clock and...
6, 7 miles.” The ARTCC transcript shows that FERTILE
Control responded with a “Roger,” although the FERTILE
Control transcript omits part of the message. However this
court discounts the contention of the government that parts of
the transmission were “stepped on” and that the entire
transmission was not intelligible to FERTILE Control, since
FERTILE responded with a “Roger,” indicating that a
message understood as complete was received and
comprehended.‘

This court finds that information sufficient to identify the
Baron was available by 16:37:42. However, even if the
package of data was believed in good faith to be incomplete at
that time, it is abundantly clear that data which would have
justified aborting the intercept was passed from ARTCC to
FERTILE Control at 16:42:20. However the confirmed
identification received at 16:42:20 was not passed to the
identification section at FERTILE Control until 16:43:57.
The FERTILE Control Officer in overall control, the senior
director, did not order the intercept terminated until 16:44:21
and this order was not passed to JL-26 until 16:44:42, only
2 seconds before the collision. In addition, the printout of the
Semi Active Ground Environment (SAGE) system of
FERTILE Control indicates that the status of the Baron was
changed to friendly at 16:43:42.

After the JL-26 obtained the Baron on radar and “‘called a
Judy,” it proceeded to close on the Baron. Ostensibly, the
mission of the F4-C was to identify the aircraft visually, but

4. While the court finds that the response of “Roger”’ is sufficient to
indicate that the entire message was received, it would have been
preferable for the trier of fact to have had access to the tapes or, at the least,
to a full and accurate transcript of the tapes which would be beyond
contention between the parties. A transcript of the ARTCC tapes was
available but, according to the government, it was not possible to furnish a
rerecording of the original FERTILE tapes because no machine is now
available for playback. Initially, the government was able to make a
transcript from the tapes for the accident report. However, the court is
concerned that the FERTILE tapes are now, allegedly, quite inaccessible.

B-6

JL-26 reported that it was flying “Popeye” (under conditions
of restricted visibility). This observation does not mandate a
finding that the decedent was either in error or deceitful when
he earlier reported good visibility by squawking 1200, for
decedent did request assistance at that time in avoiding
weather cells and, quite obviously, the meteorological
conditions are capable of rapid change. Both the pilot and the
weapons systems office (WSO) in charge of radar in JL-26,
believed that the Baron was above and to the right of their
F4-C. The pilot and WSO were under different impressions
about the amount of vertical separation between their craft
and the Baron. The pilot was operating under the assumption
that there was 500 feet of vertical separation, while the WSO
believed there was 1,000 feet of vertical separation. However,
because the F-4Cs had not been given the new altimeter
setting, JL-26 was actually 180 feet closer to the Baron
vertically than either the pilot or WSO believed.

JL-26 closed on the Baron with an overtake speed of 127
knots at the time of the collision. As JL-26 closed on the
Baron, the radar system of the F4-C displayed a “Break X”
configuration, the symbol that the F4-C had approached so
close to the target that the missiles of the F4-C could not be
utilized. After the Break X display, and the receipt from
FERTILE Control of the identification of the Baron, JL-26
applied full throttle without afterburners and initiated a left
turn. The collision immediately ensued, the left wing of the
F4-C slicing through the right side of the Baron Aircraft. The
National Transportation and Safety Board (NTSB) Collision
Reconstruction Report concluded that there was a 4 degree
difference between the bank angle of the Baron and that of the
F4-C. This conclusion is based on the NTSB assumption that
JL-26 was in a 30 degree left bank, an assumption based on
the recollection of the pilot of the F4-C. The government
contends that the Baron turned left into the path of JL-26,
crossing the intended path of JL-26 so that the right side of the
Baron was to the left of the JL-26, but the United States has
not been able to prove that the Baron had initiated such a turn
and, more importantly, the radar data does not positively
indicate any such turn. The collision resulted in the death of

B-7

the pilot and all passengers aboard the Baron. The F4-C,
although sustaining considerable damage to its wing, was able
to return to its base.

The proximate cause of the collision was negligence by the
crew of JL-26 and the FERTILE Control personnel. While
decedent’s decision to fly back to the United States from
Nassau and the particular flight path which he chose to pursue
obviously set into motion the series of events which resulted in
the collision, those actions were sufficiently remote and set the
stage for the superceding acts of negligence by defendant
United States.

The government has argued that decedent set in motion a
chain of events which should have been foreseeable to, and
anticipated by, the decedent, and claims that this foreseen
chain of events must include the collision itself. For example,
the United States argues, decedent should have foreseen that
penetrating the ADIZ while flying over 180 knots and without
having filed an activated flight plan would result in an
attempted intercept. This may well be true, but it does not
serve to protect the government from liability, for while
decedent should perhaps have anticipated that an intercept
would be attempted against an unidentified penetration of the
ADIZ, he should not have been expected to have foreseen the
inappropriate actions of FERTILE Control and of the F4-C
crew. The initial classification of the Baron as unidentified was
foreseeable, but not the eventual collision. Decedent himself
attempted to relay sufficient information to ARTCC (and,
presumably, thence to FERTILE Control and the intercepting
aircraft) to have the intercept aborted. Decedent’s actions,
some of which were concededly less than optimally prudent,
may be background conditions of the eventual collision, but
they do not constitute the proximate cause. United States v.
De Vane, 306 F.2d 182, 187 (Sth Cir. 1982).

FERTILE Control had sufficient information, within ample
time, to have terminated the intercept. Ground control failed
to give to the F4-C pilot the prompting and information
necessary for him to reset his altimeter. Finally, the F4-C

B-8

continued a mission designed for a visual identification in
weather effectively precluding such an_ identification,
misidentified the position of the Baron aircraft relative to its
position, turned left and ascended when the procedures called
for a descent and a right turn, and failed to maintain the
proper amount of vertical separation. Therefore, the
conditions which decedent created cannot be considered to be
the proximate cause of the collision because of superseding
negligence of FERTILE Control and the F4-C crew. That
superceding negligence severed any putative causal connection
between decedent’s actions and the collision. Moorehead y.
Mitsubishi Aircraft Internat’l Inc., 639 F. Supp. 385, 391 (E.D.
Tex. 1986).

In its efforts to discern the causal chain, this court found the
testimony of one of the government’s own witnesses,
Lt. Col. Smith, to be particularly relevant and helpful. This
witness, an Air Force officer with a great deal of interceptor
experience as a participant, supervisor, and instructor, testified
eloquently to the responsibility which the interceptor crew
bears for the conduct of the intercept. Col. Smith stated that
an intercept pilot must be prepared to meet any action an
intercepted aircraft might take. By all his testimony, it is clear
that it is part of the mission of the interceptor to anticipate any
possible sudden maneuvers by the overtaken aircraft. An
intercepting pilot cannot assume that the overtaken craft will
keep to the same course and heading or take any given
maneuver. This is why a safe vertical separation and a limited
overtake speed are benchmarks of the prudent intercept. The
very purpose of an intercept is to identify a target not meeting
the criteria necessary to classify an aircraft as friendly. Even if
one does not impute a necessarily hostile intent to the
unidentified target aircraft, one must assume its intent is
unknown. Therefore, both the FERTILE ground support
personnel and the crew of any intercepting aircraft must be
prepared to expect a range of possible action by the
unidentified aircraft.

The finding by this court that the collision was proximately
caused by negligence on the part of defendant United States
renders moot any question of the liability of defendant

B-9

Brandon Ladd Corporation for the damage done to the wing of
the F4-C.

iil.

The amount of loss to Brandon Ladd Corporation from the
destruction of the Baron aircraft has been stipulated by
Brandon Ladd and the United States as $45,000. Since the
court has found the United States to be liable for the collision,
Brandon Ladd is entitled to recover the damages ensuing from
the loss of the Baron.

Plaintiff is entitled under DOHSA to recover on her
pecuniary loss only. 46 U.S.C. § 762. Plaintiff offered
evidence relating to pecuniary loss stemming from the end of
decedent’s law practice and from the diminution of decedent’s
net worth. Decedent spent approximately half of his working
time on real estate development and plaintiff seeks damages
from the diminution of decedent’s net worth which flows from
real estate development.

This court declines to grant plaintiff damages on the loss of
net worth which is alleged to have resulted from decedent’s
death. The damages represented by plaintiff's claim about net
worth refer not just to an income stream, but to an
accumulation and the growth of that accumulation. This
growth is assuredly not dependent solely on the continued
existence of decedent, as would be the income stream from a
specialized occupation like the practice of law. Upon
decedent’s death, his net worth did not suddenly evaporate.
This court cannot award damages on the basis of what real
estate projects decedent might have developed and how
profitable those conjectural projects might or might not have
been. Furthermore, plaintiff cannot use as evidence of what
would have been an increase in decedent’s net worth (had he
lived), the fact that plaintiff disposed of a number of decedent’s
holdings for sums which were assertedly less than market
value. Plaintiff's claim for damages based on the dissipation or
even diminution of decedent’s net worth are rejected as too
speculative.

ee

B-10

Plaintiff offered evidence which established that decedent’s
income from his law practice had averaged $72,030 per year
for the three years immediately preceding his death. An expert
economist used the average growth rate of attorney’s income, a
discount rate based upon current rates of interest, and a
personal consumption factor’ to estimate that the loss of
income from decedent’s practice of law is $1,394,342, if
decedent practiced until he was 65 and $1,747,909 if he
practiced until age 70. Since the customary age for retirement
is 65 and since plaintiff has offered no evidence that decedent
was likely to have practiced law until age 70, the court finds
that the damages to plaintiff should be constituted by the loss
of income from decedent’s practice of law to age 65 only.

The United States offered no evidence by expert witnesses or
otherwise (except as noted below) to counter or qualify the
testimony of the expert economist, so that the expert’s
evaluation, gua expert, stands uncontradicted.

The United States offered evidence purporting to show that
even if Tiffany had continued to practice law, he would have
met with less success than he had in the past. A local
Charlottesville attorney testified that he believed decedent had
a bad reputation among the Charlottesville bar, that he was
not a trustworthy attorney, and that his professional
relationships were marked by an absence of fair dealing.
However, this testimony establishes considerably less than it
purports to. First, this testimony is not sufficiently concrete
even to be called anecdotal. Rather, it consisted of conclusory
statements and expressions of opinion of the sort more suitable
for determining inclusion in a club than evaluating
professional standing. Second, the lawyer testified that he
practiced very little in Augusta County and the City of
Waynesboro, concededly the center of decedent’s practice.
Finally, when it comes to an evaluation of the hypothetical
health of Mr. Tiffany’s legal practice, the crucial variable may

5. The court remains somewhat skeptical about the very low personal
consumption factor, fifteen percent of annual income, used by plaintiff in
calculating lost income from decedent’s practice of law. However,
defendant United States offered no evidence to rebut this figure and so the
court concludes that it should be accepted.

B-11

not be the regard with which at least some other attorneys held
Mr. Tiffany, but the regard in which his universe of clients,
past, present, and potential, held decedent. One attorney with
a long-standing practice of considerable size in the
Waynesboro area testified that Mr. Tiffany’s reputation ainong
his clients was quite good.°®

Defendant United States did, however, proffer evidence
which purports to show that decedent would have been
disbarred and, thus, plaintiff herein merits no award of
damages based on any loss of income from the practice of law.
The United States has attempted to place into evidence an
agreement between the decedent (and plaintiff, his wife) and
the United States to provide immunity in exchange for
information described within the agreement as “‘privileged.’”’
Initially, this court had doubts as to the admissibility of this
document out of a concern that the reasoning underlying what
are generally described as “Dead Man’s Statutes” would
render the document inadmissible. However, this action
proceeds entirely under a federal statute, and “‘With respect to
federal issues, no Dead Man’s Statute is effective.’ See, 2 S.
Saltzburg and K. Redden, Fed. R. of Evid. Manual, 268
(1977). Thus, as to this point, the court concludes that the
document may properly be admitted in evidence. However, as
to this document, additional serious concerns are presented, as
set out infra. While outside the linear reasoning determining
the lega! effect of this document, there are matters concerning
it which deserve comment.

First, this court is concerned about the way this agreement
appears to have been unearthed and utilized. Initially, there is
the question of the very propriety of such an agreement by
which an officer of the court, under the aegis of the United
States, seems to violate a basic ethical obligation and
disciplinary rule of the legal profession, relating to concealing

6. This lawyer’s testimony also showed that within his professional
strata, decedent’s reputation was also quite high among other attorneys in
the Waynesboro-Staunton-Augusta County area.

7. By the terms of the agreement, the government is promising not to
disclose any information gained by decedent’s statement to the Assistant
United States Attorney to the Virginia State Bar.

B-12

conduct by a licensed attorney-at-law which the United States
now contends is proof of strongly criminal activity on the part
of that lawyer.* Further, this court is concerned, though to a
lesser degree, by the way that the actions of the United States,
in divulging the contents of this document, fly in the face of
the legal maxim that “‘the word of the sovereign is its bond.”

Perhaps there is some rule or practice or procedure available
to the attorneys for the government to engage in this conduct;
if so, that fact is unknown to this court and no evidence to
show any such license to do so has been presented. If such a
rule or practice or procedure does in fact exist, then either that
license to act must be changed or the Canons of Professional
Responsibility must be changed to accommodate that practice
or rule or procedure.

It is true that where serious crime is involved, ““government
agents may lawfully use methods that are neither appealing
nor moral if judged by abstract norms of decency.” See
United States v. Bogart, 873 F.2d 1428, 1438 (9th Cir. 1986).
Even if true, this quotation gives concern, for it verges too
close for comfort on an “‘end justifies the means” argument.
Justice Brandeis, in dissent, dealt succinctly with that
argument when he stated, “to declare that in the
administration of the criminal law the end justifies the
means... would bring terrible retribution.”” See Olmstead y.
United States, 277 U.S. 438, 485 (1928) (Brandeis, J.,
dissenting).

Again, the court notes that these comments lie outside the
appropriate reasoning in determining the proper legal effect to
be given to this statement.

There has been considerable doubt raised about the
admissibility of this evidence, this court having reserved ruling
on its admissibility until the factual pattern had been fully

8. “A lawyer having information indicating that another lawyer has
committed a violation of the Disciplinary Rules that raises a substantial
question as to that lawyer’s fitness to practice law in other respects, shall
report such information to the appropriate professiona! authority...”
DR 1-103, Rules of Va. Sup. Ct. Pt. 6, § II.

B-13

developed.? The principal doubt related to the rationale of the
Dead Man’s Statutes, but, as noted supra, this has been
resolved in favor of admissibility. The sticking point of
admissibility is not alone ultimately dispositive because even if
this evidence is admissible, the court finds that it lacks
sufficient probative value to sustain the proposition for which
it is tendered by the United States. In assessing its probative
value, the court first looks at the facial assertion of the
evidence and then at the likelihood that this initial assertion
will not only turn out to be true but will set into motion all the
intermediate steps conveying the probity of the initial assertion
to its final thesis.

In this case, the court must examine the likelihood that the
statement would lead with some degree of certainty to the
disbarment of the decedent. Although the initial assertion,
that is, of criminal conduct of the decedent, is set out in the
statement, the United States has not shown that the required
sequence leading to disbarment would necessarily have
followed. Disclosure of the statement occurred before a
United States District Court other than this court in what
appears to have been an unrelated proceeding.!° However, in
order for this evidence to have sufficient probative value, the
court must be convinced that the necessary intermediate
inferences are all justified. The court would be called on to
accept the presumption stated by the United States that the
decedent engaged in criminal conduct, and from that
presumption as an underpinning would draw the inference
that the decedent would have been disbarred. Such an
inference based on a presumption cannot alone support the
conclusion the United States attempts to draw, particularly
where, according to the testimony of Mr. Wrenn,!! a number

9. Since this was a court trial, no problems of taking testimony out of
the presence of the jury, etc., were raised by reserving this ruling.

10. This court is careful to note that the judge acted promptly and with
perspicuous conscientiousness in immediately meeting his professional
obligations and passing the information to the State Bar.

11. The United States called upon an attorney, Mr. Wrenn, whose
private practice now involves representing lawyers in bar disciplinary
proceedings and who previously was first, Bar Counsel and then Special
Counsel to the Virginia State Bar. Mr. Wrenn testified to the inverted

B-14

of intermediate steps of investigation, hearings, and appeals
would have to occur before the conclusion advanced by the
United States would have occurred. There is no record
evidence that any of these steps had been taken or even
initiated. The record only discloses that the statement had
been referred by the judge to an appropriate member of the
disciplinary body in the decedent’s jurisdiction. That is, this
court would have to find that decedent would have lost his case
at every point in the State Bar disciplinary process and would
have received the ultimate sanction of disbarment. This court
refrains from reaching that conclusion, especially since this
information was, by virtue of the proper action taken by the
federal judge who became aware of the allegations or
admissions in the agreement, in the possession of that
disciplinary body for a period prior to the. death of the
decedent and, as stated, no action disclosed in the record had
been taken against the decedent. The court finds that the
evidence proffered by the United States which purports to
show that decedent would have been disbarred has insufficient
probative value to support that conclusion.

IV.

This court finds that the proximate cause of the collision
between decedent’s aircraft and the F4-C interceptor were the
superseding negligent acts of defendant United States. It
further finds that defendant United States is liable to plaintiff
in the sum of $1,393,342.00 due to lost income from his
practice of law, and to defendant Brandon Ladd Corporation
the sum of $45,000 for the loss of its aircraft.

“cursus honorum” which would have eventuated if a disciplinary action
against decedent had been pursued. While Mr. Wrenn certainly qualifies as
an expert in the machinations of state bar governance procedures, he does
not qualify as an expert in sibylline procedures or soothsaying. Indeed,
Mr. Wrenn testified that “My entire opinion is based on a hypothesis.”
Mr. Wrenn coui! not predict what would have happened with regard to
state bar proceedings had decedent lived and, in point of fact, Mr. Wrenn
took some care to avoid such speculation. The testimony of Mr. Wrenn is
not helpful to the government in its attempt to undercut plaintiff's plea for
damages due to lost income from decedent’s practice of law, because
Mr. Wrenn cannot testify to facts unique to decedent’s specific situation.

B-15

An appropriate Order shall this day issue.

ENTERED:

Judge

Date

C-1

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

April 30, 1991

To: John J. Tigert VI, Esq.
Kathryn Amelia Ledig, Esq.
Thomas Barton Almy, Esq.
E. Montgomery Tucker, Esq.
Michael John Pangia, Esq.
Frank Anthony Mika, Esq.

NOTICE OF JUDGMENT

Judgment was entered this date in Case Number(s): 90-3014
90-3022

Th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2772%3A1. Public record. Not legal advice.