Petition for Writ of Certiorari — Colorado Flying Academy, Inc. v. United States

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supreme Court, U.S, |

ea kk ED

85-1453 ; FES 5 i936

No, i ;

‘ vOSSPH FSP WNIOL, JR

CLERK

IN THE § tages. enews 4

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

COLORADO FLYING ACADEMY, INC.,

a Colorado Corporation; FEDERAL

INSURANCE COMPANY; and ASSOCIATED

AVIATION UNDERWRITERS,

Petitioners,

vs,

THE UNITED STATES OF AMERICA,

Respondent,

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

-FOR THE TENTH CIRCUIT

Law Offices of L. B. ULLSTROM

L. B. ULLSTROM, ESQ.

| LLOYD L. BOYER, ESQ.

601 Broadway, Suite 400

' Denver, Colorado 80203

(303) 292-3880

Attorneys for Petitioner

Colorado Flying Academy, Inc.

No.

I’: THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

COLORADO FLYING ACADEMY, INC.,

a Colorado Corporation; FEDERAL

INSURANCE COMPANY; and ASSOCIATED

AVIATION UNDERWRITERS,

Petitioners,

vs.

THE UNITED STATES OF AMERICA,

Respondent,

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Law Offices of L. B. ULLSTROM

L. B. ULLSTROM, ESQ.

LLOYD L. BOYER, ESQ.

601 Broadway, Suite 400

Denver, Colorado 80203

(303) 292-3880

Attorneys for Petitioner

Colorado Flying Academy, Inc.

QUESTIONS PRESENTED

I. WHETHER ALL ACTS OF AN FAA EMPLOYEE,

NO MATTER HOW NEGLIGENT, ARE IMMUNIZED BY

THE DISCRETIONARY FUNCTION EXCEPTION TO

THE FEDERAL TORT CLAIMS ACT, IF SOME OF

THE EMPLOYEE'S ACTS ARE DISCRETIONARY, NO

MATTER HOW TENUOUS THE RELATIONSHIP BETWEEN

THE ACTS.

II. WHETHER AN FAA EMPLOYEE'S DECISION

TO EXCLUDE FROM THE PROTECTION OF A TERMI-

NAL CONTROL AREA (TCA) A PORTION OF AN

INSTRUMENT APPROACH RETAINS THE DISCRETION-

ARY NATURE AND IMMUNITY UNDER THE FEDERAL

TORT CLAIMS ACT, WHEN THAT DECISION IS IN

CLEAR VIOLATION OF TUE DECISIONS AND STAN-

DARDS MADE AND SET BY HIGHER GOVERNMENT

AUTHORITY IN THE EXERCISE OF THEIR DIS-

CRETION.

III. WHETHER THE FAA MAY PROMULGATE A

REGULATION AGAINST MID-AIR COLLISION AND

THEN ASSERT ITS VIOLATION AS NEGLIGENCE

PER SE TO REL:EVE IT OF ITS OWN CULPABILITY

FOR CAUSING THE COLLISION.

LIST OF PARTIES

1. Colorado Flying Academy, Inc., a

Colorado Corporation, is the petitioner

herein and was the plaintiff in the United

States District Court for the District of

Colorado and was the appellant in the

United States Court of Appeals for the

Tenth Circuit. Colorado Flying Academy,

Denver, Colorado, was the parent company

and had no subsidiaries not wholly owned.

Colorado Flying Academy was dissolved on

January 1, 1985.

2. Associated Aviation Underwriters

was the insurance underwriter for Colorado

Flying Academy, Inc., and was made an

involuntary plaintiff by the trial court.

Associated Aviation Underwriters' parent

companies are Continental Insurance Com-

pany and Chub Insurance Group. It has no

subsidiaries or affiliates.

3. Federal Insurance Company provided

the insurance coverage for Colorado Flying

Academy, Inc., and was made an involuntary

Plaintiff by the trial court.

4. The United States of America is

the respondent herein and was the defen-

dant in the United States District Court

for the District of Coiorado and was the

appellee in the United States Court of

Appeals for the Tenth Circuit.

iii

TABLE OF CONTENTS

Questions Presented . . .... +e. i

List of Parties 7. e o * . ao . . * 7 o ii

Pehle of Contents . .<«+s2s 0 « « SES

Tzble of Authorities .....-e«.-. Vv

Opinions Below .... + + © «© « «© « 2

Jur isdiction . ae . . se 7 . + . . 2 2

Statutes and Regulations Involved. . 3

Statement of the Case ......e.e. d2

Reasons for Granting the Writ. ... 2l

ZT. Imero@mction . ..«s«ssss2ee

II. Confusion in the Wake of Varig . 23

A. The Process Analysis .... 22

B. Analysis of the Employee Acts 32

C. Circuits Who Remain In

Confusion and Apply No

Analytical Method ...... 37

III. Rejection of the Process

Analysis Method of Implementing the

Discretionary Function Exception is

a Question of Great National Import . 43

PAGE

IV. May the Government Promulgate

a Regulation, Which by Its

Own Aircraft Near-Collision

Studies, Requires the Accom-

plishment of an Impossible

Task and then Assert the

Violation of that Regulation

as Negligence Per Se, Holding

Contributory Negligence Per

Se Sufficient to Bar Recovery? . . 54

COR@IMGEOR «2 tc sce stsene etn ese OF

Appendices

A. Opinion of the United States

Court of Appeals for the Tenth

Circuit in Colorado Flying

Academy v. United States, 724

B. Opinion of the United States

District Court for the

District of Colorado in

Colorado Flying Academy v.

United States, 506 F.Supp.

1221 (D.Colo. 1981). ..... Bel

C. Order of the United States

Court of Appeals for the Tenth

Circuit, Denying Petition For

Rehearing, November 8, 1985,

MMpUMEEEROG. «s+ ss wet w e] | 6

Certificate of Service ...... Cert-l

Affidavit of Mailing ....... =Aff-l

TABLE OF AUTHORITIES

Baxley v. United States, 767

F.2d 1095 (4th Cir. 1985) .... .

ae . United States, 768

1059 (St h Gabe 1985) ° . oe e .

Cisco v. United States through

EPA, 768 F.2d 788 (7th Cir. 1985) .

Colorado Flying Academ Inc,

v. United States, 506 F.Supp.

Taek Cease GORD « « 6 6 6 eM 8

Colorado Flying Academ Inc,

ve United States, F.2d

B71 (10th Cie. 1984) . ..- 20, 50,

Dalehite v. United States, 346

U. Se 15 (1953) e 7 . . ~ o e ° - © °

Drake Towing Co., Inc. v. Meisner

Marine Const. Co., 765 F.2d 10€0—

(llth CEri 1985) . * o . 7 . e 7 >

Feyers v. United States,

749 F.2d 1222 (6th Cir. 1984). .26,

Flammia v. United States,

739 F.2d 202 (5th Cir. 1984). . 25,

50,

53,

4l,

26,

36,

30,

TABLE OF AUTHORITIES continued

PAGE

General Public Utilities

Corp. v. United States,

745 F.2d 239 (3rd Cir.

pees 6 4 6 6 6 4% 6 SS ee OK Oe Be

Griffin v. United States,

500 F.2d 1059 (3rd Cir.

1974) 7 ” + 7 . ° + . 7 . « . . 38, 39,

Hylin v. United States,

755 F.2d 751 (?th Cir.

1985) . . . e . . > - 21, 25, 27, 28,

Madison v. United States,

679 F.2d 736 (8th Cir. 1982) .....,

McMichael v. United States,

751 F.2d 303 (8th Cir. 1985). . 21, 26,

National Carriers, Inc. v.

United States, 755 F.2d 675

(8th ot TM 1985) . o o 7 o . . . 21, 26,

Natural Gas Pipeline Co. of

America v. United States, 742

F.20 502 (9th Cir. 1984)... 25, 30,

Ostera v. United States,

769 F.2d 716 veanaleiada Gals

1965) 8 6 & 6 s «© 0 « 6s 46, 34, 35,

Reeside v. Walker,

52 U.S. 272 (1850)... . ee eee.

vii

TABLE OF AUTHORITIES continued

PAGE

Russell v. United States,

F.2d 78 h Cir.

1985) ° . . . . . . . 7 21, 25, 29, 52, 53

Shuman v. United States,

.2q 263 (ist Cir.

1986S) ~. see cee eee eo co « 4, Gl, 42

United Scottish Ins. v.

United States, 692 F.2d

1209 (9th Ci . 1982) . . . - . . . . .

United States v. Eckford,

73 U.S. FT (1867) .

United States v. S.A. Empresa

de Viacao Aerea Rio Grandense

{Varig Airlines), U.S.

, 104 S.Ct. 2755

ee «sk Sk eS ee ee ee oe oe

27, 29, 39, 41,

45, 47,

Viacao Aerea Rio Grandense

(Varig Airlines) v. United

States, 692 F.2d 1205 (9th

Cir. 1982) ‘*e* 6 & 6 6 8

25,

viii

RULES AND STATUTES

26 U.8.C. © 184G. 2 ee we eee sece A

26 U.8.C. © 2680(a) . . 2 we we we eo eo oe 2

49 C.P.R. § 91.67 . «. «© 2 © 0 © © 20, 84

H. R. Rep. No. 717, 79th Cong.,

24 Session 10049 (1946)

(Committee of its whole) ....... 44

Other Authorities

Trial Bxhibit S$ ..... «+ 19, $3, 56

Trial Exhibit 5a ..... . . .19, 55, 56

Trial Exhibit 25 ..... 17, 46, 47, 49

Trial Bxhibit 26 . . . « «© «© «© «© «© «e « §2

Trial Behibit 27 ...«se-eseevnee 47

Tr ial Exhibit 36 . . > . . o . o . . . 47

OTHER AUTHORITIES continued

Excerpts from Trial

Transcript, Vol.

p.140,

p.148,

p.149,

p.16l,

p.200,

1.14-17

1.20-24

1,.13-17

1.3-6

1. 20-25

1.4-7

PAGE

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

COLORADO FLYING ACADEMY, INC.,

a Colorado Corporation; FEDERAL

INSURANCE COMPANY; and ASSOCIATED

AVIATION UNDERWRITERS,

Petitioners,

Vs.

THE UNITED STATES OF AMERICA,

Respondent.

PETLTION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

To the Honorable, The Chief Justice

and Associated Justices of the Supreme

Court of the United States:

Colorado Flying Academy, Inc.,

Federal Insurance Companies, and

Associated Aviation Underwriters,

petitioners herein, pray that a

writ of certiorari issue to review

the judgment of the United States

Court of Appeals for the Tenth

Circuit entered in this case on

January 4, 1984.

OPINIONS BELOW

The opinion of the United States

Court of Apeals for the Tenth Circuit,

affirming the trial court, was filed Janu-

ary 4, 1984, and is reported as Colorado

Flying Academy, Inc. v. United States, 724

Food 37 th Cir. 1984) (Appendix A).

Plaintiff, petitioner's petition for re-

hearing and rehearing en banc was denied

November 8, 1985, and is unreported, The

judgment of the United States District

Court for the District of Colorado, enter-

ing judgment in favor of the defendant and

against the plaintiff, was filed on Janu-

ary 20, 1981, and is reported as Colorado

Flying Academy v. United States, 506

F.Supp. L221 tp Solo: 1581). ;

JURISDICTION

The opinion of the United States

Court of Appeals for the Tenth Circuit was

filed January 4, 1984. A timely petition

for rehearing was denied November 8, 1985.

(Appendix C.) (Supreme Court Rule 20.4.)

The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. 8 1254(1) and 28

U.S.C. § 2101(c).

STATUTES AND REGULATIONS INVOLVED

The following statutes are

involved:

28 U.S.C. § 2680(a)

The provisions of this chapter

and section 1346(b) of this

title £28 USCS 8 1346(b)} shall

not apply to --

(a) Any claim based on 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 regu-

lation be valid, or based

upon the exercise or per-

formance or the failure to

exercise or perform a dis-

cretionary function or duty

on the part of a federal

agency or an employee of

the Government, whether or

not the discretion involved

be abused.

STATUTES AND REGULATIONS INVOLVED

49 U.S.C. § 1348

§ 1438. Airspace control and

facilities.

(a) Use of airspace. The Ad-

ministrator {Secretary of Trans-

portation] is authorized and

directed to develop plans for

and formulate policy with res-

pect to the use of the navig-

able airspace; and assign by

rule, regulation, or order the

use of the navigable airspace

under such terms, conditions,

and limitations as he may deem

necessary in order to insure

the safety of aircraft and the

efficient utilization of such

airspace. He may modify or

revoke such assignment when

required in the public interest.

(b) Air navigation facilities.

The Administrator {Secretary cf

Transportation] is authorized,

within the limits of available

appropriations made by the

Congress, (1) to acquire,

establish, and improve air-

navigation facilities wherever

necessary; (2) to operate and

maintain such air-navigation

STATUTES AND REGULATIONS INVOLVED

facilities; (3) to arrange for

publication of aeronautical

maps and charts necessary for

the safe and efficient movement

of aircraft in air navigation

utilizing the facilities and

assistance of existing agencies

of the Government so far as

practicable; and (4) to provide

necessary facilities and per-

sonnel for the regulation and

protection of air traffic.

ministrator [Secretary of Trans-

portation) is further authorized

and directed to prescribe air

traffic rules and regulations

governing the flight of aircraft,

for the navigation, protection,

and identification of aircraft,

for the protection of persons

and property on the ground, and

for the efficient utilization

of the navigable airspace, in-

Cluding rules as to safe alti-

tudes of flight and rules for

the prevention of collision

between aircraft, between air-

Craft and land or water

vehicles, and between aircraft

and airborne objects.

STATUTES AND REGULATIONS INVOLVED

(d) Applicability of Admini-

strative Procedure Act. In the

exercise of the rulemaking

authority under subsections (a)

and (c) of this section, the

Administrator {Secretary of

Transportation] shall be sub-

ject to the provisions of the

Administrative Procedure Act,

notwithstanding any exception

relating to military or naval

functions in section 4 thereof.

49 U.S.C. § 1421

$8 1421. Powers and duties of

Secretary of Transportation.

(a) Minimum standards; rules

and regulations. The Admini-

strator [Secretary of Transpor-

tation] is empowered and it

shall be his duty to promote

safety of flight of civil air-

craft in air commerce by

prescribing and revising from

time to time:

STATUTES AND REGULATIONS INVOLVED

(1) Such minimum standards

governing the design, mater-

ials, workmanship, construc-

tion, and performance of air-

craft, aircraft engines, and

propellers as may be required

in the interest of safety;

(2) Such minimum standards

governing appliances as may be

required in the interest of

safety;

(3) Reasonable rules and

regulations and minimum stan-

dards governing, in the inter-

est of safety, (A) the inspec-

tion, servicing, and overhaul

of aircraft, aircraft engines,

propellers, and appliances; (B)

the equipment and facilities

for such inspection, servicing,

and overhaul; and (C) in the

discretion of the Administrator

{Secretary of Transportation],

the periods for, and the manner

in, which such inspection, ser-

vicing, and overhaul shall be

made, including provision for

examinations and reports the

Administrator {Secretary of

Transportation] may accept in

lieu of those made by its offi-

cers and employees;

STATUTES AND REGULATIONS INVOLVED

(4) Reasonable rules and

regulations governing the

reserve supply of aircraft,

aircraft engines, propellers,

appliances, and aircraft fuel

and oil, required in the

interest of safety, including

the reserve supply of aircraft

fuel and oil which shall be

carried in flight;

(5) Reasonable rules and

regulations governing, in the

interest of safety, the maxi-

mum, hours or periods of ser-

vice of airmen, and other

employees, of air carriers; and

(6) Such reasonable rules

and regulations, or minimum

standards, governing other

practices, methods, and proce-

dure, as the Administrator

{Secretary of Transportation]

may find necessary to provide

adequately for national secur-

ity and safety in air commerce,

STATUTES AND REGULATIONS INVOLVED

The following regulations are

involved:

49 C.F.R. 8 61.45(d)

Simulated Instrument Flight

Equipment.

An applicant for any flight

test involving flight maneuvers

by reference to instruments

must furnish equipment satis-

factory to the examiner that

excludes the visual reference

of the applicant outside of the

aircraft.

49 C.F.R. § 91.21 (b)

Flight Instruction; Simulated

Instrument Flight And Certain

Flight Tests.

(b) No person may operate a

civil aircraft in simulated

instrument flight unless --

(1) An appropriately rated

pilot occupies the other

control seat as safety pilot;

STATUTES AND REGULATIONS INVOLVED

(2) The safety pilot has

adequate vision forward and to

each side of the aircraft, or a

competent observer in the air-

craft adequately supplements

the vision of the safety pilot;

and

(3) Except in the case of

lighter-than-air aircraft, that

aircraft is equipped with fully

functioning dual controls.

However, simulated instrument

flight may be conducted in a

single-engine airplane,

equipped with a single, func-

tioning, throwover control

wheel, in place of fixed, dual

controls of the elevator and

ailerons, when --

(i) The safety pilot has

determined that the flight can

be conducted safely; and

(ii) The person manipula-

ting the control has at least a

private pilot certificate with

appropriate category and class

ratings.

= 16 «

STATUTES AND REGULATIONS INVOLVED

49 C.F.R. 8 91.67 (a)

Right-of-way Rules; Except

Water Operations

(a) General. When weather

conditions permit, regardless

of whether an operation is con-

ducted under Instrument Flight

Rules or Visual Flight Rules,

vigilance shall be maintained

by each person operating an

aircraft so as to see and avoid

other aircraft in compliance

with this section,

= i} «

STATEMENT OF THE CASE

This case arose out of a midair

collision which occurred on June 21, 1974,

between two aircraft in the vicinity of

Stapleton International Airport, Denver,

Colorado. Jurisdiction in the trial court

was based on 28 U.S.C. § 1346, the Federal

Tort Claims Act.

Plaintiff claimed the local

designer was negligent in failing to com-

ply with directives and orders issued by

higher authority within the Federal

Aviation Administration, Washington, D.C.,

when designing a protective system of

airspace utilization.

Defendant, United States, claimed

the entire process was discretionary, and

therefore, not within the ambit of the

Federal Tort Claims Act.

= 29 «

At approximately 9:37 a.m. on

June 21, 1974, a single engine Beech

Bonanza and a twin engine Piper Seneca

collided approximately 10 nautical miles

west of Stapleton International Airport.

The Bonanza crashed in Crown Hill Cemetary,

killing all four occupants. The Seneca

was able to make a crash landing in Sloan

Lake, resulting in minor injuries to the

two pilot occupants, but totally destroy-

ing the aircraft,

Plaintiff Colorado Flying Academy

owned and operated the twin engine Piper

Seneca. The single engine Beech Bonanza

was being operated by its owner.

At the time of the collision, the

Piper Seneca was under the control of the

FAA radar air traffic controller, and was

in the process of executing an instrument

landing approach at Stapleton Internation-

» i3 @

al Airport. The aircraft was using the

instrument landing approach procedure

designated 8R ILS Backcourse, This

instrument approach procedure was designed

and published by the Federal Aviation Ad-

ministration prior to the FAA's decision

to establish a Terminal Control Area (TCA)

at Denver Stapletcn.

After the adoption of the 8R ILS

Backcourse procedure by the FAA, the FAA

decided that for certain airports, Staple-

ton International Airport being one, air

traffic congestion and conflicts required

additional safety procedures. Thus the

FAA decided to promulgate for these air-

ports, including Stapleton, the safety

procedure known as the Terminal Control

Area (TCA). Pursuant to the -egulations

that would be adopted, implementing the

TCAs, all aircraft flying within the TCAs

would have to be under the positive con-

trol of approach controllers for that air-

port. All aircraft operating within a TCA

were to be required to have a special

radio device known as a transponder, by

which positive radar contact could be

established. Those aircraft would also be

required to be in continuous two-way radio

contact with the approach controllers.

Aircraft not so equipped and not in two-

way radio contact with the approach

controllers, would not be allowed to oper-

ate within the TCA,

At the time of the collision, the

Piper Seneca was eediouting the 8R ILS

Backcourse approved approach, as part of

recurrent instrument training. This

required the trainee pilot to wear a

vision limiting device (hood) restricting

vision to the instrument panel. The

pilots were in radar contact and radio

communication with the Denver Approach

o $8 6

Control as required. The Beech Bonanza

was operating under visual flight rules or

a flight from Arizona, via Pueblo, Colo-

rado, to Boulder, Colorado. It was not ir

contact with Denver Approach Control, and

was flying barely outside and below the

shelf of the Denver TCA. The Seneca was

initially inside the TCA, but the colli-

sion occurred at the point where the

Seneca, still on the 8R ILS Backcourse

approach, temporarily passed outside of

the Denver TCA, and into uncontrolled

airspace where aircraft like the Beech

Bonanza were legally allowed to operate.

If the accident had not occurred, there-

after, the Seneca, continuing on the 8R

ILS Backcourse approach, would have passec

back into the TCA. The collision occurrec

barely 100 feet under the 8000 foot shelf

and outside the TCA, but while the Piper

Seneca was under positive radar control

BESTA

and in radio contact with Denver Approach

Control.

DEPICTION OF DENVER TCA

Hus from Stapleton in miles

15 9 0

4 J |

11,000°MSL

- v _

8R ILS Approach

site of emma

8 000 * MSL

Stapleton Airport

5,330'MSL (Ground)

FAA guidelines issued from Wash-

ington, D.C. to FAA field offices prior to

the construction of the Denver TCA direc-

ted that the TCA be of a size "sufficient

to contain existing terminal IFR proce-

dures". Trial Exhibit 25,

This was a

Girection that all instrument approaches

be contained within the airspace to be set

aside and designated as the TCAs. At the

time the TCA was designed and promulgated,

——

the 8R ILS Backcourse approach, which the

Seneca was using, was an existing terminal]

instrument approach procedure. As the TCA

was actually designed, a small portion of

the 8R ILS Backcourse approach was not

contained within the Denver TCA in viola-

tion of the directive. Subsequent to the

accident, the design was modified to con-

form with the guidelines and specifica-

tions which had been previously issued by

FAA headquarters. Only then was all of

the 8R ILS Backcourse approach entirely

contained within the TCA.

The United States District Court

in fact found that the United States was

negligent in designing, establishing, and

maintaining the Denver TCA. The Court

also found that the United States was neg-

ligent in failing to provide a 500 foot

buffer zone, horizontally and vertically,

within the Denver TCA to assure separatior

— =

between controlled and uncontrolled air-

craft at or near the boundary of the TCA.

However, the Court found that the United

States was not subject to liability be-

cause these actions fell within the pro-

tection of the discretionary function

exception to the Federal Tort Claims Act.

While it was an issue at triai,

the District Court failed to make any fin-

dings with regard to the approach control-

ler's Failure to warn the Seneca of con-

flicting traffic which he was capable of

seeing on his radar scope. In this regard

it was found that the approach controller,

Mr. Richard Igel, was not currently cer-

tified in accordance with FAA requirements

and directives for his position at Denver

Approach Control, at the time of the acci-

dent. However, ignoring Trial Exhibits 5

and 5a, an FAA study showing that such

aircraft as the Bonanza would not normally

—! oe

be seen by the Seneca pilots in time to

avoid a collision, the Court found that

the pilots of the two aircraft which

collided were negligent for colliding.

The court found, as a matter of law, that

the pilots were negligent per se for

failing to see and avoid each other, and

that this negligence barred per se any

recevet? by the Plaintiffs. The court

relied on 49 C.F.R. § 91.67, which it

effectively found outlawed having colli-

sions. Therefore, the occurrence of a

collision automatically proved a violation

of the anti-collison regulation. Because

of the application of the “see and avoid"

rule, the Court of Appeals found the trial

court's failure to make these findings was

harmless error, and necessary findings

could be inferred from the opinion as a

whole. Colorado Flying Academy, Inc., v.

United States, 724 F.2d 871, 877-80, (10th

Cir. 1984).

—

REASONS FOR GRANTING THE WRIT

I. Introduction

The most recent decision of the

Supreme Court dealing with the discretion-

ary function exception of the Federal Tort

Claims Act, 28 U.S.C. 8 2680(a), left un-

answered numerous questions as to the

scope of the exception, and the methodol-

ogy of applying the exception. United

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

Grandense (Varig Airlines), U.S.

, 104 S.Ct. 2755 (1984).

Already the various circuits have

begun to approach these problems in dispar-

ate fashions. Compare Russell v. United

States, 763 F.2d 786 (10th Cir. 1965) and

Hylin v. United States, 755 F.2d 751 (7th

Cir. 1985) with McMichael v. United States,

751 F.2d 303 (8th Cir. 1985) and National

Carriers, Inc. v. United States, 755 F.2d

675 (8th Cir. 1985).

One specific line of decisions,

following the Seventh Circuit, threatens

to expand the Varig decision and the

discretionary function exception so much

so that it would emasculate the Federal

Tort Claims Act and return victims of neg-

ligent federal action to seek redress

through special private bills in Congress,

These decisions would look at the "total

program and process", where invariably

there is discretion, and immunize any acts

associated with "the process”. Thus,

resolution of the issue is of significant

national import.

Finally, the trial court found

that the FAA had promulgated a rule, effec-

tively prohibiting collisions, It then

held the mere happening of a collision was

proof of violation of the regulation and,

therefore, was negligence per se, barring

recovery for the negligence of the air

- 22 =-

traffic controller. The court allowed the

FAA, by regulation, to create yet another

exception to the Federal Tort Claims Act,

and which negligence or lack of qualifi-

cation would completely immunize its air

traffic controllers, regardless of their

own acts,

It. Confusion in the Wake of Varig

Several courts of appeal are

taking an extremely expansive view of Varig

and are seizing on the Court's language

which they believe immunized "the complete

certification process" of the FAA. Some

courts, and especially the United States,

have confused what the plaintiffs claimed

in Viacao Aerea Rio Grandense (Varig Air-

lines) v. United States, 692 F.2d 1205

(9th Cir. 1982), and its companion case,

United Scottish Ins. v. United States, 692

F.2d 1209 (9th Cir. 1982), with what they

were able to prove. Varig at 2765-66.

=» 23 =

Admittedly, the plaintiffs in those two

cases Claimed the United States was negli-

gent in its inspection. Just as clearly,

and as this Court noted, all the plain-

tiffs proved was that the items at fault

were never inspected as part of the "spot-

inspection” program. Varig at 2766. This

Court spent over 4 pages of its opinion in

addressing the FAA's right and discretion

to adopt ach a "spot-inspection" program.

Id. at 2760-62, 66-69. It was this dis-

cretion not to inspect which was the basis

of this Court's decision.

What remained unanswered and what

is causing confusion among the circuits is

what happens if a government employee acts

but makes a negligent inspection, i.e.,

looks but does not see or ignores that

which he does see, Does the discretionary

function exception still protect the gov-

ernment and the FAA from liability for the

e 24 «

negligence or disobedience of an employee,

for a malfeasance or non-feasance of a

duty which the employee is clearly required

to do?

There are now two basic ways in

which discretionary function exception

cases are now being analyzed and decided

by the United States Courts of Appeal. On

one hand, some circuit courts look at the

overall program to determine if any dis-

cretion is involved. These courts empha-

size that in Varig, this Court immunized

the “certification program" or "process",

See Russell v. United States, 763 F.2d 786

(10th Cir. 1985); Hylin v. United States,

755 F.2d 551 (7th Cir. 1985); Cisco v.

United States through EPA, 768 F.2d 788

(7th Cir. 1985); Natural Gas Pipeline Co.

of America v. United States, 742 F.2d 502

(9th Cir, 1984); and Flammia v. United

States, 739 F.2d 202 (8th Cir. 1984).

= 2% «

The other line is led by the

Eighth Circuit, which in McMichael v.

United States, 751 F.2d 303 (8th Cir.

1985) and National Carriers, Inc. v.

United States, 755 F.2d 675 (8th Cir.

1985), scrutinized the acts of the

employee to determine whether their acts

were immunized, as opposed to whether the

whole program or process was immunized.

This line also includes Ostera v. United

States, 769 F.2d 716 (llth Cir. 1985);

Drake Towing Co., Inc. v. Meisner Marine

Constr. Co., 765 F.2d 1060 {llth Cir.

1985); and Feyers v. United States, 749

F.2d 1222 (6th Cir. 1984).

—

A. The Process Analysis

The process analysis method of

inquiring into the discretionary function

exception looks at the overall program or

process, and if it finds discretion in the

program or process, the court immunizes

all associated acts. This analytical

method is now followed by the Fifth,

Seventh, Ninth, and Tenth Circuits,

In Hylin v. United States, the

Seventh Circuit, after this Court had

vacated and remanded an earlier judgment for

reconsideration in light of Varig, first

focused on this Court's statement in Varig

that the exception was meant to embrace the

government's "role as a regulator of the

conduct of private individuals." Varig at

2765. Hvlin then went on to state:

"Varig Airlines teaches that we

must examine the nature of the

challenged governmental activity.

Id. at 2765. The appropriate

inquiry is ‘whether the dis-

a 2? =

acai

Cretionary function exception

immunizes from tort liability

the FAA certification process

involved in this case.

Hylin at 553 (emphasis in Hylin,

quoting Varig).

While Hylin goes on to observe

the employees were empowered to exercise

discretion with respect to their decisic

and which were challenged, the emphasis

process in the analysis marks the beginr

of the subordination of the inquiry intc

nature and quality of the actors' conduc

opposed to an inquiry into overall ¢Ciscr

which may exist in a program or process,

Note the Seventh Circuit stated that it

looking at the "challenged governmental

activity" and not some employees' acts.

The Seventh Circuit, again in C

v. United States through EPA, 768 F.2d 7

(7th Cir. 1985), limited its analysis tc

regulatory authority of the EPA and made

—

was

inquiry into any employees’ duties which may

have been established within the agency.

Here, plaintiff complaining the EPA had

failed to warn them that landfill under

their homes was contaminated by dioxin, The

court looked only at the process to deter-

mine if discretion attached to the agency;

naturally, it did.

Russell v. United States, 763 F.2d

786 (10th Cir, 1985) relied heavily on Hylin

but merely observed that Hylin had deter-

mined that the mine safety program was immu-

nized, Unlike the Seventh Circuit in Hylin,

the Tenth Circuit did not even discuss what,

if any, discretion reposed in the inspectors

under the facts of the case. It merely held

the process was immunized. The only lesson

the Tenth Circuit drew from Varig was that

the aircraft certification process was a

discretionary function. Here, the Tenth

Circuit clearly did not burden itself with

ao 2 =

review of the character or quality of the

actors' conduct, but only with the nature

the overall program,

The Ninth Circuit, ignoring the

merits of the case and the trial court's

specific finding of no negligence by the

FAA, joined the Seventh and Tenth Circuit

in Natural Gas Pipeline Co. of America v.

United States, 742 F.2d 502 (9th Cir. 198

and held that any claim which involved

inspections or certification were barred

per se. This method clearly looks at the

overall process and not the acts of an

individual. It does not even attempt to

determine whether the inspectors ignored

obvious defects, or acted counter to

explicit instructions from their superior

The Fifth Circuit, in Flammia v.

United States, 739 F.2d 202 (5th Cir.

1984), appears to have joined the Seventh

—

Ninth and Tenth Circuits. While it is not

at all clear, the Flammia decision repeat-

edly refers to the decisions of the Immi-

gration and Naturalization Service (INS),

and INS's regulatory authority to make

decisions with reference to the admission

of aliens, the parole of aliens, and the

release of aliens. The court stated:

"We view the language of Varig

Airlines to dictate that the

exemption under the Federal

Tort Claims Act derived from

this discretion extends in spe-

cific individual applications

as weil as to broad policies,"

Flammia at 204,

Nowhere in the decision does the

court address the actions of an individual

INS employee, nor determine whether there

were any internal instructions or memor-

anda to set standards governing actions.

The Fifth Circuit merely stopped after the

determination that the INS was clothed

with discretion in its decisions with

=: oe

regard to aliens, and found that derivati

vely all subordinate decisions received

the same benefit of this discretion. Con

sequently, the Fifth Circuit's decision

would effectively immunize all actions of

the federal government without any furthe

analysis.

B. Analysis of the Employee Acts

By comparison, the Eighth Circui

followed by the Sixth and Eleventh Circui

concentrates on the acts of the jovernmen

employees, when deciding whether the dis-

cretionary function applies. These court

look to see whether the employee had dis-

cretion to make the decision or to act th

way he did.

Thus, in National Carriers, Inc.

v. United States, 755 F.2d 675 (8th Cir.

1985), the court did not become embroiled

in whether the Food and Drug Administra-

a Se

tion {FDA} in its overall responsibility

was required to exercise discretion in

determining whether food was fit for human

consumption or contaminated. Rather, the

court observed that the individual

employee at the scene of an overturned

meat truck

"was required to suggest sepa-

ration of the exposed beef to

permit the Agency to follow

federal regulations to condemn

or tag the contaminated beef,

Id. at 678 (emphasis supplied).

The Eighth Circuit focused on the acts of

the employee and whether he had discretion.

Surely if the court acted as the Fifth,

Seventh, Ninth, and Tenth Circuits, and

focused on the FDA acting as a regulator of

the conduct of private individuals, the

agency process could have been found to be

discretionary. However, the National

Carriers court correctly discerned that this

» 32 =

employee, when faced with contaminated be

had no discretion. He had to suggest seg

gation of the contaminated meat from the

wholesome meat. The acts of the employee

were not of the nature and quality Congre

sought to immunize.

Earlier, the Eighth Circuit also

spoke to the discretionary function excep

tion in McMichaels v. United States, 751

F.2d 303 (8th Cir. 1985). Again, the cou

focused on the nature of the inspectors'

duties. It specifically found that safet

inspectors, who were constantly on site a

a munitions plant, had a number of precis

mandatory inspections to perform. The

inspections were mandatory; the inspector

had no discretion whether to make them;

therefore, the exception was inapplicable

The Eleventh Circuit, in Ostera

United States, 769 F.2d 716 (llth Cir.

- 34 -

1985), joined the Eighth Circuit. While the

Ostera court observed that the use of infor-

mants in criminal investigation was discre-

tionary, as conceded by plaintiffs, it did

not stop with that simple analysis of the

process or program, but proceeded to inquire

into the guidelines governing the actions of

and the discretion reposing in the employee

who made the decision to release a convicted

criminal and use him as an informant. The

court went beyond the process and examined

the complained of act. While the court

found discretion in the individual actor's

decision, the analysis differed from and

delved into considerably more detail than a

Seventh Circuit "prcecess analysis" would

have.

Similarly, in Drake Towing Co.,

Inc. v. Meisner Marine Const. Co., 765 F.2d

1060 (llth Cir. 1985), the court analyzed

the actual decision to replace buoys on a

- 35 =-

portion of the Gulf Intracoastal Waterway.

The court did not stop its analysis with th

decision of whether the Coast Guard had dis

cretion to replace buoys, because the Coast

Guard had decided to do so. Had the Eleven

Circuit decided to join the Fifth, Seventh,

Ninth, and Tenth Circuits, it would have

applied the discretionary function exceptio

at this point, Instead, the Eleventh Cir-

cuit continued and inquired into dnienc

having decided to act, did the Coast Guard

employees have the necessary discretion, of

the type Congress sought to immunize, to

Place the buoys negligently. The court

determined that the Coast Guard employees

did not have such discretion. Yet clearly,

there were decisions made when each buoy wz

placed.

While the Sixth Circuit was not

required to take sides in Feyers v. United

States, 749 F.2d 1222 (6th Cir. 1984), it

- 36 -

does in a footnote give indication it will

align itself with the Eighth Circuit. Id.

at 1227 n.7. The Sixth Circuit indicates

that actual knowledge or inspection of

safety violations where there is a measur-

able standard are not immunized by the dis-

cretionary x*ture of a spot check program

which led to the discovery of the viola-

tions. Id. citing to Madison v. United

States, 679 F.2d 736 (8th Cir. 1982).

c. Circuits Who Remain In Confusion

and Apply No Analytical Method

The confusion among the circuits is

further exemplified by the Third Circuit

decision in General Public Utilities Corp.

v. United States, 745 F.2d 239 (3rd Cir.

1984). There the circuit overturned the

challenge to the Nuclear Regulatory Commis-

sion's actions in conjunction with the Three

Mile Island incident. The Third Circuit

indicated the plaintiffs complained that the

government failed to disclose information

about a similar incident, avolving another:

nuclear reactor designed by the same compar

that designed Three Mile Island. In the

process of rendering its decision, the Thir

Circuit reviewed one of its prior decision:

Griffin v. United States, 500 F.2d 1059 (3:

Cir. 1974), om which the plaintiffs unsuc-

cessfully sought to rely. Plaintiffs had

Claimed Griffin carved out an exception

based on scientific professional judgments.

With regard to the Three Mile Island inci-

dent, the court found the Nuclear Regulato:

Commission had the discretion to decide wh:

were the significant events sufficient to

trigger the reporting requirement.

In the previous case on which the

Plaintiffs had sought to rely, Griffin, the

Third Circuit had found that the scientific

determination to approve a batch of polio

vaccine was not discretionary, because the:

= 8 «

were specific standards by which the deci-

sion could be measured, notwithstanding

calling for technical and professional

judgment, and because the inspector had

relied on a factor not in the regulations.

The Griffin panel stated:

"The violation of a discretion-

ary command takes what other-

wise might be characterized as

a ‘discretionary function' out-

side the scope of a statutory

exception."

Griffin at 1068-69; General Utilities

Corporation at 246 n.8.

The Third Circuit's confusion is

indicated by the comments about Griffin,

and in questioning whether Griffin would

continue to have vitality in the face of

Varig. The court indicated its confusion

over Varig when it said:

«» 39 «

"Griffin, however, must be read

cautiously because in Varig the

discretionary exception covered

an agency decision that rested

on highly technical information."

General Public Utilites Corporation at 246,

In this manner, the Third Circuit

has evinced confusion over whether it

should review the process or program in

its entirety, or the individual acts of

the employee, as it did in Griffin.

There is a third set of cases

where the circuits have yet adopted a

method of analysis, because the plaintiffs

Claims did not force such a selection.

These cases have been decided by reference

to pre-Varig authority. See Baxley v.

United States, 767 F.2d 1095 (4th Cir.

1985) (claim against FAA for failure to

promulgate regulation); Shuman v. United

States, 765 F.2d 283 (lst Cir. 1985)

(claim for failure of government to assume

- 40 -

duty to warn of asbestos danger in WWII

shipyards); and Begay v. United States,

768 F.2d 1059 (Sth Cir. 1985) (failure to

warn of dangers of radiation to uranium

miners; plaintiffs were unable to point to

the specific agency which was responsi-

ble). This reliance on pre-Varig author-

ity also may evince confusion on the

proper application of Varig, and a hesi-

tancy to adopt either of the two leading

approaches,

In Shuman v. United States, 765

F.2d 283 (lst Cir. 1985), the First Cir-

cuit may have pointed out the distinguish-

ing characteristics of all the cases. In

its discussion of Dalehite v. United

States, 346 U.S. 15 (1953), the court

observed that:

» 4) «

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED,

"No single government employee

was charged with negligence, but

the government itself was alleged

to have committed numerous acts

of negligence, ..."

Shuman, 765 F.2d at 289.

Yet when a specific actor

is alleged to be at fault, neither

Dalehite nor Varig can support an

analysis of only the program or

process, and not the nature or

quality of conduct of the actor.

Unfortunately, the various circuits

have reached different conclusions

on how to apply the discretionary

function exception. The Fifth,

Seventh, Ninth, and Tenth Circuits

would apply the discretionary func-

tion exception to the whole program,

any time a program is found to be

discretionary. Conversely, the

Sixth, Eight, and Eleventh Circuits

look at the actor to determine

— \

whether he possessed the discretion

to act in the way he did.

III. Rejection of the Process Analysis

Method of Implementing the Discretionary

Function Exception is a Question of Great

National Import.

It has been observed that almost

all human actions involve some decision-

making, unless it is an involuntary blink of

an eye or the beating of the heart. Thus,

when there are decisions to be made, there

is discretion. Obviously, Congress' act of

creating agencies and assigning them duties

is discretionary. Equally so, agencies make

discretionary decisions on how best to meet

their congressional mandate. Without the

need to explore delegation as it proceeds

down to the individual employee, it is suf-

ficient to note that if courts persist in

beginning their analysis with an agency's

program and not the acts of the employee,

invariably discretion will be found and the

exception applied.

The Federal Tort Claims Act was

itself a form of delegation. Prior to its

enactment, the sole method for recovery in

these types of cases was to seek a special

bill in Congress. United States v. Eckfor<

73 U.S. 484 (1867); Reeside v. Walker, 52

U.S. 272 (1850). The impetus behind the

adoption of the Federal Tort Claims Act,

which with some limits waived governmental

immunity on tort claims brought against th:

United States, was to relieve Congress of

the overburden created by these private

bills. By 1946, when the Federal Tort

Claims Act was passed, an average of 2500

private claims were introduced in every

session, nearly one half of all the biils

the House. But of these only 250 to 300

would receive any kind of action. H. R.

Rep. No. 717, 79th Cong., 2d Session 10049

(1946) (committee of its whole). If the

Fifth, Seventh, Ninth, and Tenth Circuits'

—' =

methodology and reasoning, as discussed in

Section II A, persists and remains the rule

of law, the exception will swallow the rule,

and once again, Congress will be the sole

remedy.

If this Court's intent in Varig was

to direct focus on the nature and quality of

the acts of the individual employee and the

scope of discretion reposed in that employee,

that intent is being dangerously eroded by

the Courts of Appeal decisions in the Fifth,

Seventh, Ninth and Tenth Circuits. These

decisions are resulting in an implied repeal

of the Federal Tort Claims Act,

This case, Colorado Flying Acad-

emy, Inc. v. United States, clearly pre-

sents these issues for final resolution.

Plaintiff does not dispute that the United

States had the discretion to decide to

adopt Terminal Control Areas, to decide at

« 23 =

what cities TCAs would be established, and

to decide the basic criterion for TCAs.

Plaintiff does claim, however, th:

once the criterion for the TCA was estab-

lished by higher authorities within the FA

the scope of the designers' discretion was

correspondingly limited and the designer hi

no discretion to deviate from the criterio:

given to him, even if he was cloaked with

discretion with respect to some issues.

Here, the FAA told the designer

that all instrument approaches were to be

contained completely within the TCA. Tria

Exhibit 25, But one instrument approach w

not, and the accident occurred at the exac

._Place where an aircraft on that one instru

ment approach passed temporarily outside t

TCA.

This case will also provide the

Court the opportunity to give guidance to

« £6 =

determine when "the challenged acts of a

Government employee - whatever his or her

rank - are of the nature and quality that

Congress intended to shield from tort lia-

bility." Varig at 2765. Here, the

employee testified he was aware that he

was supposed to include all the turbine

approaches within the TCA, but did not.

Trial Transcript Vol. X, p.140, 1.14-17,

and 20-24; p.148, 1.13-17; p.161, 1.20-25.

Plaintiff introduced both the

basic directions provided by the PAA to

the designer and a subsequent clarification

issued by the FAA, indicating the instrument

approach should be completely contained

within the TCA. Trial Exhibits 25, 27, and

36.

Yet, both the District Court and

the Court of Appeals, seizing on a single

word and taking it out of context, found

- 27 =

that complete discretion continued to

repose in the designer,

This ignored the distinction be-

tween generalized discretion and discre-

tion exercised within parameters. Both

lower courts ignored the strictures

imposed on the designer by higher FAA

authorities, and conferred on the govern-

ment a generalized immunity.

We note in the interest of candor

and for the Court's benefit, that the

lower courts interpreted the following

language of the directive from FAA head-

quarters in Washington, D.C. to subor-

dinate air traffic division chiefs, as

giving the designer discretion:

"All. Group II TCAs should be

implemented in accordance with

the following guidelines:

Simplification of the TCA

airspace configuration is a

prime prerecuisite. Vertical

and laterai limits should be

— oe

standardized where possible and

the number of subareas kept to

a minimum.

TCA airspace should initially

consist of three concentric

circles centered on the primary

airport, preferably at the

VORTAC site if located on the

primary airport. The radius of

the outer circle should nor-

mally be 20 miles with suf-

ficient airspace to contain

existing terminal IFR proce-

dures.

This recommended airspace con-

figuration should be developed

for TCA candidate locations

prior to considering potential

alteration resulting from user

participation. However, analy-

sis of the terminal area opera-

tions may necessitate tailoring

the airspace in a different

manner depending upon the oper-

ational needs at the primary

airport and the underlying

satellite airports. Wherever

possible, VOR radials and DME

arcs shall be used to define

the boundaries of a TCA and its

Subareas, It is important,

nowever, that prominent visual

landmarks also be considered as

aids to the VFR traffic

desiring to remain clear of the

area,"

Trial Exhibit 25 (emphasis supplied).

» 26 =

Clearly, this is a question of

law and not fact, for which no deference

is owed the lower courts. First, it

should be noted that the trial court

relied on the ability of the designer to

adjust the design of the TCA, taking into

account certain criteria relating to the

Surrounding community, and the specific

discretion to exclude certain instrument

approaches, Colorado Flying Academy, Inc.

v. United States, 506 F.Supp. 1221, 29

(D.Colo. 1981). The Court of Appeals

emphasized the word "normally" but found

that it modified more than the size, cir-

cumference, or radius of the TCA. Colo-

rado Flying Academy, Inc. v. United

States, 724 F.2d 871, 76 (10th Cir. 1984).

Straining normal English construction, the

Court of Appeals apparently found the word

“normally” also modified the requirement

to contain all instrument approaches

« =

within the TCA. In this regard, both

courts ignored the testimony of the

designer which showed he understood that

all turbine approaches were to be con-

tained within the TCA. Trial Transcript,

Vol. X, p.140, 1.14-17 and 20-24; p.148,

1.13-17. 8R ILS Backcourse was used by

turbine aircraft, Trial Transcript, Vol.

X, p.149, 1.3-6; p.200, 1.4-7. Both

courts also ignored the fact that the

designer could not point to a single FAA

directive which authorized him to exclude

any portion of 8R ILS Backcourse from the

TCA. Trial Transcript, Vol. X, p.199-200.

The courts further ignored an FAA

memorandum, dated February 8, 1973, from

the Acting Chief, Denver Tower, acknowl-

edging the implementation of Group II TCAs

and proposing a design for the Denver TCA.

In this memorandum the Acting Chief of the

Denver Tower, an FAA employee, asserted

« S29 «

that all of the instrument approach pro-

cedures were included within the TCA,

Trial Exhibit 26. A clearly erroneous

statement as subsequent, tragic events

demonstrated,

An apt analogy would be that of

an architect. He has discretion in creati

a design, in fact he is expected to be

creative and different. Yet whatever the

design, the architect has no discretion tc

violate the building code. Here, the

language seized upon by the courts clearly

shows the designer of the TCA had some

discretion in deciding on the shape of the

TCA. But in focusing on this language

alone, both courts ignored the fact that

whatever the shape chosen, the designer haz

no discretion to exclude some or all of ar

instrument approach.

Thus, the Tenth Circuit, even

before Varig or Russell v. United States,

» $2 «

763 F.2d 786 (10th Cir. 1985) looked at

the whole process - designing TCAs in

general - rather than at the complained of

act, failing to include all instrument

approaches within the adopted TCA.

The position impliedly taken by

the Tenth Circuit in Colorado Flying

Academy v. United States, 724 F.2d 871

(lOth Cir. 1384), and expressly taken in

Russell v. United States, 763 F.2d 786

(10th Cir. 1985), joining with the Seventh

Circuit position, would clearly emasculate

the Federal Tort Claims Act. Every govern-

ment action would necessarily be found to

be discretionary. Then Congress would

again be entertaining private bills.

Conversely, the Eighth Circuit approach

would not always result in liability. See

Ostera v. United States, 769 F.2d 716

(llth Cir. 1985), only the just applica-

tion of the Federal Tort Claims Act.

« $3 «

IV. May the Government Promulgate a Reg-

ulation, Which by Its Own Aircraft Near-

Collision Studies, Requires the Accomplist

ment of an Impossible Task and then Assert

the Violation of that Regulation as Neg1Li-

gence Per Se, Holding Contributory Negli-

gence Per Se Sufficient to Bar Recovery?

The FAA has promulgated a regula-

tion, 49 C.F.R. § 91.67, which states in

part:

"When weather conditions per-

mit, regardless of whether an

operation is conducted under

Instrument Flight Rules or

Visual Flight Rules, vigilance

shall be maintained by each

person operating an aircraft so

as to see and avoid other air-

craft in compliance with this

section. . .." (emphasis

supplied).

This is known as the "see and

avoid rule",

The District Court held the mere

happening of the collision was sufficient

proof of the violation of the rule. Colo-

rado Flying Academy, Inc. v. United State:

506 F.Supp. 1221 (D.Colo, 1981). The Cou:

» $8 «

of Appeals affirmed. Colorado Flying

Academy, Inc. v. United States, 724 F.2d 871

(10th Cir. 1984).

Both courts ignored an FAA study

placed into evidence (Exhibits 5 and 5a) by

the Plaintiff which clearly showed that

pilots, even when warned of the potential of

conflicting aircraft, were unable to see

that other aircraft in time to avoid a

collision. The rule is impossible to comply

with if it is interpreted to impose an abso-

lute duty not to have a collision and if a

collision is then considered absolute proof

of the violation.

This very icea offends basic con-

cepts of due process and fair play. The FAA

has, if this interpretation is allowed to

stand, promulgated a rule which in essence

will always relieve the FAA of liability, if

the negligence of its controllers has caused

a midair collision. This is because the

pilots, by having the collision, have prov

they violated the “see and avoid" regula-

tion. Yet the FAA, from its own tests

(Exhibits 5 and 5a), Knows compliance with

the rule is virtually impossible. A bette

rule would make the collision no more than

prima facie proof; or sufficient only to

raise a rebuttable presumption of lack of

vigilance, subject to the plaintiffs

rebutting the presumption. In fact, the

only just application is to require the

party seeking to invoke the regulation to

have the burden of showing that the offen-

ding pilot had the ability to see the con-

flicting traffic in time to take effective

evasive action and failed to do so.

It was only because the courts

found this negligence per se that the tria

court's failure to make any findings with

respect to the negligence of the air traff

» 6 «

controller or his iack of proper certifica-

tion could be found to be harmless by the

Tenth Circuit, This readily allowed the

Tenth Circuit also to infer certain findings

of fact where they did not exist.

The Supreme Court must act to cor-

rect this gross abuse of the rulemaking pro-

cess. The purpose of rules is to govern

people's behavior, not insulate the govern-

ment against liability for its own negli-

gence.

V. Conclusion

this Court's decision in Varig

answered many questions about the applica-

tion of discretionary function exception to

the Federal Tort Claims Act, yet it also

left unanswered many other questions. Thus

the circuits, in the short time since the

Varig decision was rendered, have already

begun to take divergent paths in applying

» S73 «

the discretionary function exception. The

practical result has been that an injured

person's rights, may be totally dependent

upon where he is hurt and where he can bri

suit, when harmed by government action.

Further, the Seventh Circuit line

of decisions when followed, has the abso-

lute effect of immunizing the vast majorit

of government actions and employees. This

result is at a clear variance with the

intent and purpose of the Federal Tort

Claims Act, when it was enacted. If the

wave of decisions which is engulfing a

group of circuits continues unchecked, the

exception will swallow the rule. fThus, in

the wake of the confusion of the circuits,

this is a question of pressing national

concern and great national import, which

must be decided by this Court.

This case presents that set of ci

cumstances which were missing in Varig.

» $8 =

Here the agency had the discretion to act

differently or not at all. The FAA chose

to act and gave the designer of the TCA

several fixed parameters from which he had

no authority or discretion to deviate. The

designer's unauthorized deviation was negli-

gent and was a proximate cause of the injur-

ies and damages suffered by petitioners.

In the process of resolving these

issues, this Court can clearly tell the agen-

cies that Congress controls the scope and

extent of governmental immunity from tort

liability, and that the violation of agency

regulations cannot be used to relieve the

agency of responsibility for the actions of

its employees. The reprehensibility of this

practice is evident when the agency passes a

regulation with which it is virtually impos-

sible to comply. The FAA is the regulator

of safety in flight. It is charged with the

safety of all the flying publics. Its regu-

« 56

lations should inure to the benefit of the

public, not itself.

DATED this 4th day of February, 1986.

LAW OFFICES OF L. B. ULLSTRO

KE thle beor-

PY, B. Ulistrom, #666

Lloyd L. Boyer, #10862

601 Broadway, Suite 400

Denver, Colorado 802063

Telephone: 303/292-3880

Attorneys for Petitioners

o» £8 =

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

COLORADO FLYING ACADEMY,

INC., a Colorado corpora-

tion; FEDERAL INSURANCE

COMPANY, and

ASSOCIATED AVIATION

UNDERWRITERS, No. 81-1485

Plaintiff-Appellants,

Vv.

THE UNITED STATES OF

AMERICA,

me ee ee ee ee ee ee ee ee ee ee”

Defendant-Appellee.

os —_— — =

APPEAL FROM THE UNITED STATES

DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 76-K-351)

eee ee eae ee ae

L. B. Ullstrom, Denver, Colorado (Edward

J. Rau, Denver, Colorado, was also on the

brief), for Plaintiffs-Appellants.

Gary W. Allen, Assistant Director, Torts

Branch, Civil Division, Department of

Justice, Washington, D.C. (Stuart E.

Schiffer, Acting Assistant Attorney

General, and Joseph F, Dolan, United

States Attorney, were also on the brief)

for Defendant-Appellee.

Before HOLLOWAY, DOYLE and LOGAN, Circuit

Judges

— — =

HOLLOWAY, Circuit Judge.

This timely appeal is from a judgment

entered for defendant United States of

America in an action for damages and

indemnification brought under the Federal

Tort Claims Act. Colorado Flying Academy

Inc. v. United States of America, 506

?.8upp. 1221 ().Ce0le.id6i) t.7.A.). Th

case arose out of a mid-air collision of

two aircraft near Stapleton Airport,

Denver, Colorado,

The factual background

At about 9:30 a.m. on June 21, 1974 --- :

clear day with visibility of 60 miles -—-:

Piper Seneca aircraft (Seneca) owned by

plaintiff Colorado Flying Academy

(Academy), collided with a Beechcraft

Bonanza (Bonanza) occupied by four per-

sons. The trainee and instructor inside

the Seneca ditched in a nearby lake and

received only minor injuries. The Bonanza

_ erash-landed in the Crown Hill Cemetery

and the four adult occupants died.

The Academy operates a flying school and

used the Seneca in teaching instrument

flight procedures. On the morning of the

collision, trainee James Allen was seeking

advance instrument training.1 He sat in

the left seat and wore a hood, designed to

limit his vision to the aircraft's instru-

ment panel. The instructor, Brian

Gardner,’ sat in the right hand seat. Mr.

Allen was practicing Instrument Landing

System (ILS) 3 approaches on runway 8R. 4

This particular approach is a published

Instrument Approach Procedure, designed by

A-3

the Federal Aviation Administration (FAA),

Known as the 8R ILS Back Course Approach,

Id, at 1226. The Seneca had requested the

air controller, Richard Igel, to position

the aircraft on the final approach course,

and just prior to the collision the Seneca

had been cleared for an 8 R ILS back

course approach, Id. The instructor, Mr,

Gardner, was the pilot in command. Id. at

1223.

The Bonanza was flown by its owner,

George Carter.2 His wife and her parents,

the Hoffmans, were passengers. The

Carters and Hoffmans were flying from

Williams, Arizona, to Boulder, Colorado,

under visual flight rules (VFR).© Their

altitude was approximately 7,900 feet

above mean sea level (MSL). / They were

not receiving any assistance from air

traffic controllers,8 and their plane was

not equipped with a transponder. The

A-4

Bonanza could be seen by radar, although

"for a very brief time, it may have been

off the screen as a result of tangential

loss." C.F.A., 506 F.Supp. at 1227,

The Federal Aviation Act of 1958, 49

U.S.C. § 1348, empowers the FAA to regu-

late navigable airspace. [In carrying out

this responsibility, the FAA created ter-

minal control areas (TCAs) in various

locations throughout the country. The TCA

Surrounding Denver's primary airport,

Stapleton International Airport, was

established as of March 28, 1974 by a

Federal Aviation Regulation (FAR). C.F.A.

supra, 506 F.Supp. at 1226. The TCA is

intended to reduce the danger of midair

collisions, in part by separating

controlled and uncontrolled air traffic.

With minor exceptions, only controlled air

traffic is allowed within a TCA,

According to an FAA information release of

A-5

March 26, 1968 (Plaintiffs' Exhibit 39),

the TCA program would "minimize pilot

reliance on the ‘see and avoid' concept o}

separation and ... eliminate the unknowns

»». SO that aircraft landing at the major

hub airports not only are segregated from

all other aircraft but also are provided

with separation by the air traffic contro)

system." Id. at 2.

Although general guidelines regarding

TCA design were given by the FAA from

Washington, D.C., the task of tailoring

the Denver TCA configuration fell to

Gerald Wilson, an FAA Airspace Specialist

for the Rocky Mountain Region. After pro-

posals, public comment and revisions, the

TCA design in effect at the time of this

accident was determined, Generally, the

Denver TCA can be visualized as a group of

three cylinders, each having its center at

Stapleton airport. At the time of the

A-6

collision, the first cylinder reached from

the ground to 8,000 feet MSL and extended

radially from Stapleton for a distance of

nine miles. The second cylinder was from

8,000 feet to 10,000 feet MSL with a

radial distance of fifteen miles. The

third cylinder reached from 10,000 feet to

11,000 feet MSL and extended radially for

twenty miles. The interiors of these

cylinders form the TCA. See Appendix.

Just prior to the collision, the Seneca

was cleared for final approach on the 8R

ILS Back Course Approach. The glide slope

for this approach caused the Seneca to

descend below the floor of the TCA's

second cylinder (8,000 MSL) briefly before

re-entering the TCA boundary at a distance

of nine miles from Stapleton Airport. See

Appendix. Meanwhile the Bonanza was

passing through Denver without entering

the TCA. It was flying just under the

A-7

floor of the second cylinder (about 7,900

feet MSL) and outside the nine mile radiu:

of the TCA's first cylinder. As the

district court noted, traffic avoiding ths

TCA is compressed by the 8,000 foot MSL

shelf of the TCA and the 6,900 foot MSL

minimum altitude for flight over Denver.

During the brief period as the Seneca

dropped out of the TCA on the 8R ILS Back

Course Approach, the Bonanza flew toward

the Seneca’s starboard side. The Bonanza

struck the Seneca “at a horizontal angle

of approximately 40% to 60% to the right,

as measured from straight ahead." Id. at

1227. Mr. Allen and Mr. Gardner, who

thought they had struck a bird, see id. at

1224-25 n. 1, received only minor injurie:

in ditching the Seneca in a nearby lake.

All occupants of the Bonanza died in a

crash-landing.

Plaintiff Academy and the insurance

company plaintiffs brought this action

under the Federal Tort Claims Act, 28

U.S.C. 88 1346(b), 2671 et seg. They

seek $471,000, representing $81,000 for

the loss of the Seneca and $390,000 in

settlement payments made to heirs of the

occupants of the Bonanza, the Carters and

the Hoffmans., 9

The United States defended primarily on

the grounds of the discretionary function

and misrepresentation exceptions to the

Federal Tort Claims Act, 28 U.S.C.

S§ 2680(a) and (h). The Government also

argued that the pilots' negligence barred

recovery. I R. 22-29.

The district court denied any relief to

plaintiffs concluding, primarily, that

negligence on the part of pilots Carter

and Gardner as well as the discretionary

A-9

function exception of 28 U.S.C. 8 2680(a)

required judgment for the Government. Th:

court found that there was Government

negligence in designing, establishing and

maintaining the Denver TCA and failing to

provide a horizontal and vertical buffer

zone for the TCA. C.F.A., 506 F.Supp. at

1227. Such design negligence was “a

proximate cause” although not "a primary

cause" of the mid-air collision. Id.

This negligence was not actionable,

however, because it came within the

discretionary function exception, Id. at

1229 The policy decision as to which

instrument approach procedure should or

should not be contained within the TCA is

a decision which is incident, or directly

related to, the attainment of the objec-

tives sought by the creation of the TCA.

Id.

Whether the trial court made findings

A-10

regarding the negligence of the air traf-

fic controller is disputed by plaintiffs

on appeal. As we will explain, we believe

that the trial court held that there was

no air traffic controller negligence, and

made sufficient findings on this issue

which are not clearly erroneous.

Furthermore, we conclude that the trial

court correctly applied the discretionary

function exception. Accordingly, we

affirm.

The design of the Denver

Control Area

We consider the discretionary function

exception first because overcoming this

hurdle is "a jurisdictional prerequisite

to suit." Baird v. United States, 653

F.2d 437, 440 (10th Cir.), cert. denied,

454 U.S. 1144 (1981). This exception

insulates the Jnited States from liability

for the performance, or failure to per-

A-1)

form, a discretionary function even if tt

discretion is abused. 28 U.S.C. 8 2680(2

Plaintiffs contend that the Government'

negligence in designing, establishing, an

maintaining the Denver TCA is not within

the scope of the discretionary function

exception because the 8 R ILS Back Course

Approach was not fully contained inside

the TCA in contravention of specific

guidelines set forth in FAA directives.

Brief of Appellants at 7. This, plain-

tiffs argue, created a mandatory duty to

contain the instrument approach within th

TCA, and the negligent failure to carry

out that duty is not within the exception

See Jackson v. Kelly, 557 F.2d 735, 737-3

(10th Cir. 1977) (en banc). If such man-

datory guidelines existed and they were

violated, then the discretionary function

exception would not bar recovery. See

Barton v. United States, 609 F.2d 977, 97:

A-12

(10th Cir. 1979); First National Bank in

Albuquergue v. United States, 552 F.2d

370, 375-76 (10th Cir.), cert. denied, 434

U.S. 835, (1977); Griffin v. United

States, 500 F.2d 1059, 1066-69 (3rd Cir.

1974). Thus, our inquiry must begin with

the various regulations and directives to

determine if they created a mandatory duty

to design a TCA in a particular manner,

There is substantial evidence demon-

strating that no such mandatory duty

existed. Plaintiffs' own evidence sup-

ports this conclusion, For example,

plaintiffs refer to a communication from

the FAA to subordinate Air Traffic

Division Chiefs which states in part:

All Group II TCAs should be implemented

in accordance with the following

guidelines:

Simplification of the TCA airspace con-

figuration is a prime prerequisite.

Vertical and lateral limits should be

standardized where possible and the

number of subareas kept to a minimum.

A-13

TCA airspace should initially consist

of three concentric circles centered on

the primary airport, preferably at the

VORTAC site if located on the primary

airport. The radius of the outer circl:

should normally be 20 miles with suf-

ficient airspace to contain existing

terminal IFR procedures.

This recommended airspace configuratio:

should be developed for TCA candidate

Locations prior to considering potentia’

alteration resulting from user partici-

pation. However, analysis of the ter-

minal area Operations may necessitate

tailoring the airspace in a different

Manner depending upon the operational

needs at the primary airport and the

underlying satellite airports. Whereve:

possible, VOR radials and DME arcs shal!

be used to define the boundaries of a

TCA and its subareas. It is important,

however, that prominent visual landmark:

also be considered as aids to the VFR

traffic desiring to remain clear of the

area,

Plaintiffs’ Exhibit 25 at 1 (emphasis adde™

Use of the word “normally” in the empha-

sized portion of the communication indica-

tes that there was some latitude in the

design of the TCAs. See XIV R. 148. The

communication as a whole contemplates that

the TCAs can be tailored, depending on the

needs of a particular location. The

A-14

emphasized language illustrates the

discretionary quality of TCA design.

Hence we feel that this FAA communication

did not create a fixed or readily ascer-

tainable standard from which a deviation

would be actionable. Rather, by its own

terms, it called for interest-balancing

and tailoring to meet local conditions.

See Miller v. United States, 710 F.2d

656, 662-66 (10th Cir. 1983) (petition for

cert. filed).19

Furthermore, the record reveals that the

design of the Denver TCA was determined

after analysis of competing aviation

needs. Those who sought to maximize

safety wanted a larger TCA, and those who

objected to the inconvenience the TCA

would cause wanted either a smaller TCA or

none at all. See Public Hearing on Notice

of Proposed Rule Making 69-41 (January 7,

1970) at 3-6, 54-55, Defendant's Exhibit

A-15

16. The impact on all users had to be

balanced in designing and maintaining the

Denver TCA. See Id., XIV R. 135 (testi-

mony of Gerald Wilson, Denver TCA

designer) .11

We are convinced that these administra-

tive decisions fall within the discretion-

ary function exception. Competing inter-

ests were weighed and then policy deci-

sions were made which the exception was

intended to cover. Miller v. United

States Department of Transportation,

supra, 710 F.2d at 665-66; First National

Bank in Albuguergue v. United States,

supra, 552 F.2d at 375-76. Therefore we

find no error in the ruling of the distric

court that the claim of Government negli-

gence in designing the Denver TCA must be

rejected because the Government decisions

in question are within the discretionary

function exception of 82680(a).

A-16

III

'The conduct of the air traffic controller

We now turn to plaintiffs' argument that.

the trial court failed to make findings

' regarding the negligence of the air traf-

fic controller. Plaintiffs reason that

the trial court indicated it would make

findings in the same sequence as the

isSues were entered in the pretrial order.

C.F.A. supra, 506 F.Supp. at 1226. In the

pretrial order, the eleventh contested

issue of fact and law contained a number

of issues including whether there was air

controller negligence, I R, 41.12 there

were not, however, specific findings

discussing the particulars of the claim of

negligence by the air traffic controller,

although there were some findings about

the radar surveillance.13 Because of the

lack of detailed findings on their speci-

fications of negligence by the air traffic

A-17

controller, the plaintiffs argue that the

court failed to make findings as required

under Rule 52(a), Fed.R.Civ.P. 52(a).

Rule 52(a) provides that in actions

tried without a jury "the court shall find

the facts specially and state separately

its conclusions of law thereon ...." Id.

The Rule is designed to provide the

appellate court with a clear understanding.

of the basis of the trial court's decision

and to aid the trial court in considering

and adjudicating the facts. Ramey

Construction Co. v. Apache Tribe, 616

F.2d 464, 466-67 (10th Cir. 1980);

Featherstone v. Barash, 345 F.2d 246, 249

(10th Cir. 1965); 9 C. Wright & A. Miller,

Federal Practice And Procedure 8 2571 at

679-80 (1971).14

To meet the burden that Rule 52(a)

imposes, there must be findings either in

the opinion or stated elsewhere that are

A-18

sufficient to indicate the factual basis

for the ultimate conclusion, See Kelley

v. Everglades Drainage District, 319 U.S.

415, 422, (1943); Snyder v. United States,

674 F.2d 1359, 1363 (10th Cir. 1982).

This does not require inordinately

detailed findings. See Nulf v.

International Paper Co., 656 F.2d 553, 561

(10th Cir, 1981). Featherstone v. Barash,

345 F.2d 246, 250 (10th Cir. 1965), Woods

Construction Co. v. Pool Construction Co.,

314 F.2d 405, 406 (10th Cir. 1963). The

Supreme Court articulated the general

standard for the findings in Kelley v.

Everglades Drainage District, supra, 319

u.8. at 615s

It may be that adequate evidence as to

these matters is in the present record.

On that we do not pass, for it is not

the function of this Court to search the

record and analyze the evidence in order

to supply findings which the trial court

failed to make. Nor do we intimate chat

findings must be made on all of the enu-

A-19

merated matters or need be made on no

others; the nature of the evidentiary

findings sufficient and appropriate to

Support the court's decision as to fair-

ness Or unfairness is for the trial

court to determine in the First instance

In the light of the circumstances of the

particular case. We hold only that

there must be findings, stated either in

the court's opinion or separately, which

are sufficient to indicate the factual

basis for the ultimate conclusion.

Id. at 421-22. (emphasis added).

We believe that the findings were suf-

ficient to discern the basis for the trial

court's decision on the claim of negli-

gence by the air traffic controller. In

the section of the opinion entitled |

"Conclusions of Law" the court stated that

"an air traffic controller has the right |

to rely upon the assumption that a piloc

knows and will abide bw the applicable

Federal Aviation Regulations." C.F.A.,

506 F.Supp. at 1228. This must be con-

Sidered with the conclusion that the

Seneca and Bonanza pilots “each failed to

A-20

maintain the level of viyilance required

of pilots by the Federal Aviation regula-

tions and by good operating practice."

C.F.A., 506 F.Supp. at 1228.15 the

judge's reasoning is apparent that the

controller was therefore not at fault.

Moreover the trial judge's opinion stated

the general nature of the claims of the

parties and these included allegations of

failure to maintain the radio equipment

properly, FAA failure to direct the

plaintiffs' aircraft out of danger, and

failure to advise plaintiffs that other

aircraft was in dangerous proximity. Id.

at 1223. Then the trial judge's findings

tracked the outline of the pretrial order

where questions of negligence were set out

in paragraph ll, I R. 41, and the judge

made the findings of the detailed negli-

gence which he did find, as quoted in note

15. supra. It is clear, we feel, that the

A-21

: Rn

findings thus rejected the other claims of

negligence alleged.

We are satisfied that the findings of

fact were sufficient on the claims of

negligence by the air traffic controller.

They rejected the claims of negligence by

the controller and the findings are amply

Supported by the record. There is

conflicting evidence between the testimony

of plaintiffs" expert McDermott, X R. 32

et seg., and the testimony of the air

traffic controller, Mr. Igel, XIV R.

44-125, explaining and defending his

actions, and the testimony of the

Government expert Rowan who testified that

the performance of the air traffic

controller in no way contributed to the

accident. XV R. 216 et seg. We feel that

the findings are not clearly erroneous,

We have considered Deweese v. United

States, 576 F.2d 802 (10th Cir. 1978), and

A-22

United States, 497 F.2d 878 (10th

Yates v

Cir. 1974), relied on by plaintiffs, and

these opinions did uphold awards against

the Government based on air traffic

controller negligence. We feel these

cases are specific fact situations which

are distinguishable and that the prin-

ciples applied in them are not incon-

sistent with our conclusions here,

In sum, we conclude that there was no

error here in the findings against the

plaintiffs on the claim of negligence by

the air traffic controlier.

The claims for indemnity and for direct

recovery for negligence against the

United States

The plaintiffs argue that the trial

court seriously erred in finding that

recovery was barred by reason of the

pais Canvey negligence of the pilots,

Gardner and Carter; that the plaintiffs

A-23

are not seeking recovery under any assign-.

ment of claims from the Carter and Hoffman |

heirs, which might cause the pilots' neg-

ligence to be charged to plaintiffs; and

that their claims for recovery on prin-

ciples of indemnity should prevail due to

the primary negligence by the Government

throuah the acts of the air traffic

controller and the FAA design of the

Denver TCA contrary to specific guideli-

nes.

Before analyzing these additional claims

of error it is important to make clear

that recovery is sought by plaintiffs for

two distinct types of damages. First,

plaintiffs seek compensation for the loss

of the Academy's Seneca airplane. Second,

they seek to recover sums reasonably paid

in settlements with the heirs of the occu-

pants of the Bonanza. Theoretically,

plaintiffs could recover directly from the

A-24

United States on a negligence claim for

the loss of the Seneca. The other damages

are different and plaintiffs seek to

recover the amounts paid as reasonable

settlements with the Carter and Hoffman

heirs under indemnity principles on the

theory that the Government is primarily

liable due to its primary negligence,

A. Contributory negligence

In effect, plaintiffs argue that the

trial court erroneously barred recovery

because of plaintiffs* contributory

negligence, Plaintiffs reason that the.

trial court relied on a decision that pre-

dated Colorado's adoption of a comparative

negligence statute,1® and that this sta-

tute applies to the instant action. We

agree that the Colorado comparative negli-

gence statute applies, but we need not

decide whether the trial court's decision

is consistent with the statute,

A-25

We reach this conclusion because we can

affirm on any grounds that find support ir.

the record. E.g., Mountain States Natural

Gas Corp. v. Petroleum Corp. of Texas, 693

F.2d 1015, 1020 (10th Cir.1982); Cayce v.

Carter Oil Co., 618 F.2d 669, 677 (10th

Cir. 1980); Keyes v. School District No.

1, Denver, Colorado, 521 F.2d 465, 472-73

(10th Cir. 1975), cert. denied; 423 U.S.

1066, (1976). As we have already

discussed, we agree with the trial judge

that any negligence in designing,

establishing and maintaining the Denver

TCA is within the discretionary function

exception and that the trial court made

adequate findings, which we sustain, that

there was no air traffic controller negli-

gence. Thus, regardless of whether the

court misapplied Colorado's comparative

negligence rules, there is no actionable

Government negligencel? and plaintiffs

A-26

cannot recover, 18 Hence any error in the

findings on the basis of a bar due to

contributory negligence is of no con-

sequence,

B. Indemnity

As we have already explained, we

conclude that we should uphold the trial

court's rulings that there was no

actionable Government negligence. Thus

again, we should affirm the judgment even

if there were an infirmity in the trial

court's reasoning on the indemnity issue,

Nevertheless, we have considered the trial

court's ruling that the plaintiffs do not

have a right to indemnity under Colorado

law and find no error in that

conclusion, 19

Although plaintiffs argue that they

should be indemnified because the

Government is primarily liable, their

position is not well taken. The trial

A-27

judge's analysis and conclusions dispose

of this claim. He found that the negli-

gence in design of the TCA was "not a pri-

mary cause" of the collision, although the

design negligence was found to be "a

proximate cause" of the collision.

C.F.A., 506 F.Supp. at 1227. Moreover,

we feel that the trial judge's opinion

aaequately found that there was no air

traffic controller negligence. On the

other hand the negligence of Gardner, the

Academy's flight instructor, was found to

be "a primary cause" of the mid-air colli-

sion, as was the negligence of Carter,

Id. Under Colorado law a tortfeasor is

entitled to indemnity only where he is

secondarily liable and he seeks recovery

from one who is primarily liable. See

Ringsby Truck Lines, Inc. v. Bradfield,

563 P.2d 939, 942-43 (Colo. 1977);

Millenson v. Department of Highways, 590

A-28

P.2d 979, 982 (Colo.Ct.App. 1978);

Bradford v. Bendix-Westinghouse Automotive

Air Brake Co., 517 P.2d 406, 414-15

(Colo.Ct.App. 1973). Thus the findings of

the trial judge, which we sustain, support

the judge's conclusion that the plaintiffs

are not entitled to indemnity.

Conclusion

For the reasons stated, we are convinced

that the plaintiffs have not demonstrated

any reversible error in the findings and

conclusions of the trial court. Accord-

ingly the judgement is AFFIRMED.

diagram depicts Denver TCA

Footnotes

1. The district court found that Mr,

Allen “held an airplane transport pilot

certificate for single engine land flight

instructor, single and multi-engine land

A-29

airplane ratings, instrument flight

instructor, and a helicopter instructor

rating. He had accrued approximately

2,500 hours of flight time." C.F.A., 506

F.Supp. at 1225.

2. Mr. Gardner, CFA's Chief Flight

Instructor, held an "FAA commercial cer-

tificate, with flight instructor, instru-

ment, Single and multi-engine land

airplane ratings. He had accrued approxi-

mately 4,500 hours of flight time."

C.F.A., 506 F.Supp. at 1225.

3. The ILS is a navigation aid which pro-

vides the pilot with course and elevation

information in relation to the runway by a

cockpit instrument displaying a vertical

needle showing deviation from course and a

horizontal needle showing deviation from

the planned glide path, or elevation.

4, Runway 8R refers to runway eight right

which has a magnetic course of 080 degrees

A-30

east from magnetic north.

5. "Mr. Carter held an FAA private cer-

tificate with airplane single engine land

ratings and had accrued approximately 650

hours of flight time." C.F.A., 506

F.Supp. at 1225.

6. The Bonanza was uncontrolled traffic

in that it was operating VFR, was outside

the terminal control area of Stapleton

Airport, anc was not in radio contact

with, or controlled by, air traffic faci-

lities. VFR pilots are essentially

operating independently, absent com-

munication with traffic control. Thus,

their intentions are not known,

7. 7,900 feet above MSL would be approxi-

mately 2,620 feet above the ground in the

Denver area.

8. Pursuant to stipulations of facts, the

district court noted that the Bonanza's

last known contact with any FAA facility

A-31

was in New Mexico and that “there is no

record of radio contact by [the Bonanza]

with FAA in Colorado or with Denver

Approach Control or Denver Tower."

C.F.A., 506 F.Supp. at 1226.

9. Plaintiffs also sought damages for

money paid to Crown Hill Cemetery, for

aircraft salvage, for the Bonanza‘s

destruction and certain other miscella-

neous costs. Plaintiffs did not make

administrative claims for these damages,

Under Section 2675(a), 28 U.S.C., denial

of an administrative claim is a jurisdic-

tional prerequisite before a claimant can

bring suit in district court. Lurch v.

United States, 719 F.2d 333, 335 n. 3

(10th Cir.1983); Tnree2-M Enterprises v.

United States, 548 F.2d 293 (10th

Cir.1977). Therefore, an action for these

damages cannot be maintained.

The complaint alleged that the United

A-32

States, through the FAA, was negligent by:

(1) establishing the Denver TCA without

fully containing the 8R ILS Back Course

Approach within the TCA's boundaries; (2)

failing to provide a “buffer zone"

Surrounding the TCA to enhance separation

between controlled anda uncontrolled

traffic; (3) failing to establish a corri-

dor over the De.ver TCA to avoid

compression of traffic around its edges;

(4) having insufficient numbers of

controllers on duty; (5) failing to main-

tain properly the radar equipment; (6)

failing to observe the Bonanza visually

and warn the Seneca, and; (7) placing the

Seneca “where it was at hazard with

conflicting traffic. I R. 8-9.

Plaintiffs also contended that the

radar controller was negligent by: (a)

failing to devote full attention to the

radar scope; (b) failing to monitor the

A- 33

Bonanza; (c) maladjusting the radar equip-

ment resulting in improper range and

reanniien of the scope; (d) vectoring the

Seneca outside the TCA, and; (e) failing

to warn the Seneca. Id. at 10.

Plaintiffs prayed for a determination of

the degree or percentage of negligence of

each of the parties involved, including

the FAA, under the Colorado comparative

negligence statute. See Colo, Rev.Stat.

§13-21-111(1973).

10. Plaintiffs also refer to a memorandum

dated February 8, 1973, from the Acting

Chief of the Denver Tower describing the

proposed Denver TCA. This memorandum sta-

tes in part: “Proposed floors of the TCA

provide for containment of IFR arrivals in

TCA airspace to touchdown in all approach

configurations." Plaintiffs' Exhibit 26 at

1. We note that this memorandum was

issued more than 16 months before actual

A-34

implementation of the TCA. Actual imple-

mentation required public comment and an

evaluation of general aviation interests,

commercial air carrier interests, the

traffic needs of small aircraft as well as

large turbine-powered aircraft, and con-

sideration of the demands of aviation

lobbying organizations. See, e.g., XIV

Tr. 149, 169, 172.

ll. The following findings of the trial

court indicate the policy-making involved:

The functions performed by airspace

specialists, like Mr. Wilson, in

Planning and designing the TCA con-

figuration for a specific location

involve judgment, planning and policy-

making discretionary activities, They

are therefore protected from tort

Claims. The policy decision as to which

instrument approach procedure should or

should not be contained within the TCA

is a decision which is incident, or

directly related to, the attainment of

the objectives sought by the creation of

the TCA. The decision by the FAA not to

provide for “buffer zones" or VFR corri-

dors in TCA design is a policy judgment

of the agency falling within the protec-

tion of the discretionary function

exception.

C.F.A., 506 F.Supp. at 1229.

12. The portion of the pretrial order at

issue provided:

ll. Was the Defendant United States

negligent in any of the following

respects:

* * *

d. In that the FAA failed to pro-

perly maintain and operate the radar

equipment utilized?

e. Was the radar approach controller

negligent in failing to provide adequate

separation between the aircraft?

f. Was the radar approach controller

negligent for failing to direct the

Seneca out of danger?

g. Was the radar approach controller

negligent for failing to perceive a

radar target for the Bonanza and to warn

the Seneca of the conflicting traffic of

the Bonanza?

h. Was the radar approach controller

negligent in vectoring the Seneca at an

altitude unprotected by the Denver TCA?

i. Was the radar approach controller

negligent in placing the Seneca at an

altitude which did not provide five

hundred (500) feet vertical separation

from conflicting uncontrolled traffic

A-36

permitted to travel outside the Denver

TCA?

j. In permitting the certification

of the Seneca with such a large door

post "blind spot?"

zt RR. 41.

13. The district court did make the

following findings on the radar sur-

veillance along with its findings on

Government negligence with respect to the

TCA:

7. The Denver terminal radar was

operating properly immediately prior to

and at the time of the mid-air colli-

sion,

8. The FAA was not negligent in main-

taining the Denver terminal radar

system.

* * *

10. The radar surveillance provided

by the Defendant United States in the

Denver TCA was adequate,

ll. The Defendant United States was

negligent in the following respects:

a. In designing and establishing and

maintaining the Denver TCA.

b. In failing to provide a "buffer

zone" horizontally and vertically in the

A-37

Denver TCA to provide separation between

controlled and uncontrolled traffic as

they conflict near the boundary.

12. The defendant was negligent in

establishing procedures that did not

provide a minimum of 500 feet vertical

separation for TCA traffic from non-TCA

traffic.

C.F.A., 506 F.Supp. at 1227.

14. Both Featherstone and Wright & Miller

point out that an additional purpose

behind Rule 52(a) is to make definite what

has been decided so the doctrines of

collateral estoppel and res judicata can

be applied.

15. As the parties' briefs make clear,

there are three FARs of importance to the

issues On appeal. The "see and avoid"

concept is set forth at FAR 91.67(a), 14

C.F.R. 891.67(a) (1975):

When weather conditions permit,

regardless of whether an operation is

conducted under Instrument Flight Rules

Or Visual Flight Rules, vigilance shall

be maintained by each person operating

an aircraft so as to see and avoid other

aircraft in compliance with this sec-

A-38

tion. When a rule of this section gives

another aircraft the right of way, he

shall give way to that aircraft and may

not pass over, under, or ahead of it,

unless well clear.

General provisions of pilot authority

are found at FAR 91.3(a)(b), 14 C.F.R.

88 91.3(a)(b) (1975):

The pilot in command of an aircraft is

directly responsible for, and is the

final authority as to, the operation of

that aircraft.

In an emergency requiring immediate

action, the pilot in command may deviate

from any rule of this subpart or of

Subpart B to the extent required to meet

that emergency.

Finally, the right-of-way rules per-

tinent to aircraft on landing approaches

are set forth in FAR 91.67(f), 14 C.F.R.

$91.67(f£) (1975):

Aircraft, while on final approach to

land, or while landing, have the right

of way over other aircraft in flight or

operating on the surface. When two or

more aircraft are approaching an airport

for the purpose of landing, the aircraft

at the lower altitude has the right of

way, but it shall not take advantage of

this rule to cut in front of another

which is on final approach to land, or

to overtake that aircraft.

A-39

16. The district court stated that under

Colorado law, a violation of a statute or

ordinance is negligence as a matter of

law, and that if such negligence proxima-

tely causes the injury, the offender can-

not recover. We recognize, as plaintiffs

point out, that in reaching this conclu-

sion the district court cited Reed v.

Barlow, 153 Colo. 451, 386 P.2d 979, 981

(1963) which antedated Colorado's adoption

of a comparative negligence rule.

Although we are puzzled by this, we need

not decide whether the court failed to

make the proper comparative negligence

analysis under Colorado law.

In passing, we note that it might be

possible to construe the district court's

opinion so that it is consistent with

Colorado's comparative negligence statute.

Colorado's comparative negligence statute’

permits recovery only if the plaintiff's

A-40

negligence "was not as great as the negli-

gence of the person against whom recovery

is sought.” Colo. Rev. Stat. 8 13-21-111

(1973). As explained in Part III, we view

the district court's opinion as finding no

negligence by the air traffic controller.

The court found that the design negligence

of the United States was "a proximate

cause" of the collision, though not "a

primary one." C.F.A., supra, 506 F.Supp.

at 1227. Further the court found that the

negligence of Gardner and of Carter was "a

primary cause" of the mid-air collision,

Id. This could be read to mean that the

neglience of plaintiffs is greater than

any negligence on the part of the defen-

dant, barring recovery under the Colorado

statute. See Graf v. Tracy, 568 P.2d 467

(Colo, 1977).

The district judge did not express the

degree of each person's negligence as a

A-41

percentage. The pretrial order states

that one contested issue of fact and law

was whether the Seneca pilots were negli-

gent, and if so, the percentage of their

negligence compared to that of the

Government. I R. 42. Moreover, Colorado's

comparative negligence statute also speci-

fies that the court determine the degree

of negligence expressed as a percentage.

Colo. Rev. Stat. 8 13-21-111(2)(b) (1973).

We need not decide whether there was any

error on this score. As explained in the

text, we can affirm on a ground not

involving any comparison of the negligence

of different persons.

17. We also note the district court found

that the Denver Terminal radar was

operating properly before and at the time

of the collision, and that the FAA was not

negligent in maintaining this radar,

C.F.A., Supra, 506 F.Supp. at 1227.

A-42

18. Plaintiffs also complain that the

negligence of the Bonanza pilot should not

have been imputed to them. We do not

believe it necessary for us to express a

view on this point. As we have explained,

we are upholding the trial court's rulings

that there was no actionable Government

negligence.

19. "The Federal Tort Claims Act permits

an indemnity action against the United

States ‘in the same manner and to the same

extent' that the action would lie against

‘a private individual in like circum-

Stances' ... ." Lockheed Aircraft Corp.

v. United States, 51 U.S.L.W., 4206, 4208,

U.S. ' _, (U.S. February 23,

1983) (citations omitted).

Indemnity actions are permitted under

Colorado law. See Ringsby Truck Lines,

Inc. v. Bradfield, 563 P.2d 939, 942-43

(Colo. 1977).

A-43

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 76-K-35l

COLORADO FLYING

ACADEMY, INC., a

Colorado corporation;

FEDERAL INSURANCE COM-

PANY, and ASSOCIATED

AVIATION UNDERWRITERS, MEMORANDUM

OPINION,

FINDINGS OF FACT

AND CONCLUSIONS

OF LAW

Plaintiffs,

vs.

THE UNITED STATES OF

AMERICA,

me ee ee ee ee ee ee ee ee ee ee ee

Defendant.

INTRODUCTORY STATEMENT

This action arises out of a mid-air

collision between two aircraft over

Denver, Colorado. Plaintiffs' aircraft, a

twin-engine Piper Seneca, N-774, was

struck by a single engine Beech Bonanza,

N-27R. All four occupants of the Bonanza

died when it crashed into the Crown Hill

Cemetery. The pilot and student-pilot

aboard the Seneca received only minor

injuries after ditching their disabled

aircraft in Sloans Lake.

The collision occurred in clear

weather, at approximately 9:36 A.M. on

June 21, 1974. The Seneca, owned and

operated by Colorado Flying Academy, was

being flown on an instrument procedures

training flight, utilizing the radar and

instrument approach facilities operated by

defendant at Stapleton International

Airport, Denver. At the time of the

collision, the Seneca was under the

control of a radar approach controller,

employed by the Federal Aviation

Administration in the air traffic control

facility at the Stapleton control tower,

The Bonanza, being flown by the owner, a

resident of Arizona, was operating under

visual flight rules, and had nearly

B-2

reached its destination airport at

Boulder, Colorado, after departing

Williams, Arizona, earlier in the day.

Plaintiffs' initial complaint

alleging negligence on the part of defen-

dant sought $81,000 money damages for the

loss of the Piper Seneca aircraft. Later,

the survivors of the deceased occupants of

the Bonanza made demand on the plaintiff,

Colorado Flying Academy, to pay wrongful

death damages totaling $1.3 million.

Plaintiff, Colorado Flying Academy, and

the insurance company plaintiffs, while

denying negligence and claiming that the

Federal Aviation Administration was

responsible, settled these demands for

$390,000. Following this settlement

Plaintiffs amended their complaint to pray

for judgment in the total sum of $471,000,

representing the $81,000 aircraft loss and

the $390,000 paid to the Bonanza sur-

B-3

vivors. During the trial, after the

testimony of Shields B. Craft, plaintiffs'

claims adjuster, the prayer was amended to

include $4,621.25 for damages paid to

Crown Hill Cemetery, $325.00 for aircraft .-

Salvage paid to J. W. Duff, $2,000 medical

payments to the heirs of the deceased

occupants of the Bonanza, $14,000 for the

Bonanza's destruction and $8,751.04 for

related attorney fees. No administrative

Claims were ever filed for these latter

amounts.

JURISDICTION

The Court has jurisdiction pursuant

to the Federal Tort Claims Act. The

amount in controversy exceeds, exclusive

of interest and costs, the sum of TEN

THOUSAND DOLLARS ($10,000.00).

GENERAL NATURE OF THE

CLAIMS OF THE PARTIES

1. Plaintiffs claim:

(a) The FAA designed and maintains the

Denver Terminal Control Area (TCA) for the

sole purpose of separating aircraft and

preventing collisions. The FAA designed

the Denver TCA in a faulty manner in that

the TCA did not cover an area and altitude

that would include the Instrument Landing

System (ILS) approach, or, conversely,

designed and failed to modify the ILS 8R

procedure to match the TCA and thus give

adequate protection to aircraft under

radar control, from conflicting unknown

traffic “compressed" under the TCA

"shelf."

(b) Plaintiffs' aircraft, on an instrument

practice flight under positive radar

control, was being vectored by radar by

the Denver Tower Approach controller and

had been cleared for final approach to

landing, thus had the right-of-way over

all other aircraft, under Federal Aviation

Regulations, 14 CFR 891.67(f).

the radar equipment employed to provide

separation for aircraft.

(d) The FAA failed to direct the

plaintiffs' aircraft out of danger and

failed to advise the plaintiffs of the

fact that the other aircraft was in

dangerous proximity although the FAA gave

warnings to other aircraft of conflicting

non-transponder traffic.

(e) The FAA failed to maintain adequate

separation (500 feet vertically) between

plaintiffs' aircraft and other conflicting

traffic, which traffic was "compressed" in

the narrow corridor under the "shelf" of

the TCA.

2. The defendant generally denies the

allegations of plaintiffs and asserts that

plaintiffs fail to state a claim upon

wnicn relief can be granted and that as to

at least part of piaintiffs' claims the

court is without jurisdiction pursuant to

the discretionary function and misrepre-

sentation exceptions of the Federal Tort

Claims Act, 28 U.S.C. 82680(a) and (h),

particularly with regard to the allega-

tions concerning the establishment and

design of the Denver TCA, the establish-

ment of the ILS BC 8R approach to

Stapleton Airport, and the issuance of

Type Certificates. Defendant further

asserts that plaintiffs are not the real

parties in interest; that plaintiffs were

negligent per se or contributorily negli-

gent in failing to see and avoid the

aircraft with which its pilot and student

collided; and that plaintiffs voluntarily

B-7

assumed the known risk of harm in

operating the aircraft. Defendant further

asserts that the plaintiffs are estopped

to deny negligence because they entered

into a voluntary settlement with the sur-

vivors of the deceased occupants of the

other aircraft involved in this mid-air

collision and further that there is no

rule of contribution or indemnity appli-

cable that will permit recovery from

defendant of that settlement amount.

STIPULATIONS

Following conferences between counsel

for the parties, held pursuant to the

request of the court, the following stipu-

lations were agreed upon and are con-

Sidered to be facts:

1. That the subject aircraft Seneca 774

was in the control and possession of

Colorado Flying Academy, Inc. (hereinafter

referred to as CFA); that Brian Gardner

B-8

was the pilot in command of said aircraft

at the time of the accident and that Brian

Gardner was acting within the scope and

authority of his employment for CFA at the

time of the accident. Further, that the

aircraft was owned by CFA with a security

interest held by Piper Finance Company at

the time of the accident.

2. That the weather at the time and

place of the accident was as stated in the

NTSB accident report, to wit: daylight,

clear, and visibility 60 miles. Further,

that weather was not a contributing cause

of the accident.

3. That the FAA was the agency respon-

sible for the design, construction, imple-

mentation and establishment of procedures

for the Denver Terminal Control Area and

for the Instrument Approach Procedures for

Stapleton International Airport.

4, That the transcript by Frank

McDermott of Denver Tracon Terminal Radar

South, June 21, 1974, 1502-1555 GMT, is a

substantially accurate representation of

the radio communications between Denver

Terminal Radar South and aircraft with

which it was communicating.

5. That the transcript of Susan M.

Hytinen, dated January 6, 1978, is a

substantially accurate representation of

the radio communications between Denver

Terminal Radar South position and various

aircraft with which it was communicating

between the hours of 1531:40 GMT and

1538:30 GMT on June 21, 19741,

6. That the collision occurred just

below the 8,000-foot shelf (approximately

7,900 MSL) and at a point just west

{within one mile) of the nine-mile boun-

dary of the Denver TCA.

7. (That plaintiff CFA is a Colorado

corporation, is a citizen of the State of

Colorado engaged in the business of flight

instruction, and is located at Arapahoe

County Airport.

8. That the Federal Aviation

Administration (hereinafter referred to as

FAA) is an instrumentality or agency of

the United States government as defined by

28 USC 82671.

9. That the plaintiff CFA conducts a

flying school for pilot-trainees seeking

instrument or multi-engine ratings in

aircraft, from the Arapahoe County

Airport,

10. That the Federal Aviation Act of

1958 authorizes the Federal Aviation

Administrator to regulate the use of navi-

gable airspace by assignments thereof (49

U.S.C. §1348(a)); to prescribe air traffic

rules (49 USC 81348(c)); and to pro-

B-11

mulgate other substantive rules in addi-

tion to operating the air traffic control

system.

ll. That plaintiff CFA's employee and

Chief Flight Instructor, Brian Gardner,

held an FAA commercial certificate, with

flight instructor, instrument, sirgle and

multi-engine land airplane ratings. He

had accrued approximately 4,500 hours of

flight time. His trainee, pilot James

Allen, held an airplane transport pilot

certificate for single engine land flight

instructor, single and multi-engine land

airplane ratings, instrument flight

instructor, and a helicopter instructor

rating. He had accrued approximately

2,500 hours of flight time,

12. That FAR 61.45 requires an appli-

cant, for any flight test involving flight

maneuvers solely by reference to instru-

ments, to furnish equipment that excludes

B-12

the visual reference of the applicant out-

side of the aircraft and that, inasmuch as

trainee-pilot Allen on the instant flight

was practicing for such a flight test, the

wearing of a "hood" or view-limiting

device by Allen at the time of the colli-

sion was in keeping with normal and

accepted practice and procedure, Further,

that when an aircraft is being flown in

simulated instrument flight, FAR 91.21 (b)

requires that an appropriately-rated

safety pilot have adequate vision forward

and to each side of the aircraft or have a

competent observer in the aircraft to

supplement adequately the vision of the

safety pilot.

13. That the other aircraft involved, a

white, yellow and brown Beechcraft

Bonanza, M-35, N-9727R, from Williams,

Arizona, was flown by George Carter,

accompanied by his wife, Elizabeth, and

B-13

her parents, George and Hortense Hoffman.

Mr. Carter held an FAA private certificate

with airplane single engine land ratings

and had accrued approximately 650 hours of

flight time.

14, That the Bonanza N-9727R had

departed Williams, Arizona, at approxima-

tely 06:20 MDT (12:20 GMT) on a VFR flight

plan via Farmington, Alamosa, Walsenberg,

Pueblo, direct to Boulder Municipal

Airport, which is three miles north of the

City of Boulder. That the last known con-

tact of N-9727R with any FAA facility was

at Farmington, New Mexico, and that there

is no record of radio contact by N-9727R

with FAA in Colorado or with Denver

Approach Control or Denver Tower.

Further, Carter's VFR flight plan indi-

cated that his planned true airspeed was

160 knots, his planned cruising altitude

was 8,500 feet MSL and the aircraft was

B-14

not equipped with a transponder,

15. That the FAA designed the

Instrument Approach Procedures for the 8

Right ILS approach to Stapleton

International Airport and that said

procedures were published and distributed

under auspices of the U.S. Government.

16. That the deceased Bonanza pilot,

George Carter, and his wife, Elizabeth,

were survived by heirs, consisting of five

dependent children, one cf whom was a

minor, all of whom were living in

Williams, Arizona.

17. That the deceased aircraft

passengers, George and Hortense Hoffman,

were also survived by five adult children.

18. That the claim of the Carter heirs

was settled with all the Carter heirs by

Associated Aviation Underwriters/Federal

Insurance Co. on behalf of Colorado Flying

Academy for the total amount of $345,000.

B=-15

Further, that the claim of the Hoffman

heirs was settled by Associated Aviation

Underwriters/Federal Insurance Co. on

behalf of Colorado Flying Academy for a

total of $45,000. That the total settle-

ment was $390,000.

19. That Seneca 774 was in radar and

radio contact with Denver Approach Control

of the FAA at the time of the collision;

that Richard S. Igel was the FAA employee

providing radar services to the aircraft;

and that Richard S, Igel was operating

within the scope and authority of his

employment for FAA at the time of the

accident.

20. That prior to each of the practice

back course ILS approaches to Runway 8

Right, Seneca 774 requested the controller

to position the aircraft on the final

approach course west of the Edgewater

Intersection.

21. That just prior to the collision,

Seneca 774 had been cleared for an 8R ILS

back course approach,

22. That the FAA conducted a radar

flight check of Denver Terminal Radar as a

result of this accident on June 25, 1974.

FINDINGS OF FACT

Pursuant to Rule 16, F.R.Civ.P., a pre-

trial order was entered which limited the

issues for trial. In compliance with that

Order and in the same sequence, the court

makes the following findings on the con-

tested issues,

1. The increasing density of aircraft

makes additional air traffic controls

necessary to avoid mid-air collisions at

certain U.S. high-density airports. By

means of a Federal Aviation Regulation

(FAR) set out in FAR Part 71, (14 Code of

Federal Regulations 871.401), the FAA

established, as of March 28, 1974, a

Denver Terminal Control Area (TCA) (Group

II) around the primary airport of Denver,

Stapleton International Airport, extending

FAA Terminal Traffic Control for a radius

of twenty miles from the center of the

airport, extending from the earth's surface

approximately 5,280 feet above Mean Sea

Level up to an altitude of i1,000 feet

above MSL, 5,700 feet above the terrain,

with variations in altitude, depending

upon the direction from the center,

2. Denver Approach Control was vec-

toring and assigning altitudes to Seneca

774 which was under the Air Traffic

Control of Denver Approach Control at the

time of the collision,

3. The instrument approach procedure

which authorized a descent below 8,000

feet, west of Edgewater, permitted the

Seneca to drop below the 8,000-foot MSL

B-18

protected shelf of the “CA and made it

vulnerable to conflicting aircraft traffic

passing underneath the TCA, which traffic

was “compressed" or “squeezed" beneath the

8,000-foot shelf and above the 6,900-foot

minimum altitude for flight over the City

of Denver.

4. The Bonanza aircraft approaching

from the south was capable of being seen

on the radar scope, even though the

Bonanza was not equipped with a

transponder and, for a very brief time, it

nay have been off the screen as a result

of tangential loss.

5. Carter's Bonanza, 27R, came from the

right hand side of the Seneca, toward the

Seneca, at a horizontal angic of approxi-

mately 40% to 60% to the right, as

measured from straight ahead,

6. The doorpost “blind spot" in the

Seneca did not preclude the Seneca

B-19

instructor pilot from seeing the Bonanza.

7. The Denver terminal radar was

operating properly immediately prior to

and at the time of the mid-air collision.

8. The FAA was not negligent in main-

taining the Denver terminal radar system,

9, The plaintiffs proved damages as se:

forth in the Introductory Statement of

this memorandum,

10. The radar surveillance provided by

the Defendant United States in the Denver

TCA was adequate,

ll. The Defendant United States was

negligent in the following respects:

a. In designing and establishing and

maintaining the Denver TCA,

b. In failing to provide a "buffer

zone" horizontally and vertically

in the Denver TCA to provide

separation between controlled and

uncontrolled traffic as they

conflict near the boundary.

12. The defendant was negligent in

establishing procecdures that did not pro-

vide a minimum of 500 feet vertical

separation for TCA traffic from non-TCA

traffic.

13. The Seneca pilot-instructor, Brian

Gardner, was negligent in failing to see

and avoid the Bonanza,

14, The design negligence of the defen-

dant was a proximate cause of the mid-air

collision.

15. The design negligence of the defen-

dant was not a primary cause of the mid-

air collision.

16. The negligence of Brian Gardner was

a primary cause of the mid-air collision

as was the negligence of George Carter,

17. The plaintiffs are not entitled to

indemnity for the settlement of the wrong-

ful death claims of $1,300,000 in the

amount of $390,000.

18. The plaintiffs' decision to make a

settlement of the claims of the Carter and

Hoffman heirs on behalf of CFA was a

reasonable decision in view of the facts

and circumstances surrounding the colli-

sion.

19. The total settlement payment to the

heirs of the deceased Carters and Hoffmans

was reasonable in light of the apparent

total provable damages.

20. The amount paid in legal fees by

the plaintiffs in negotiating the settle-

ment with the Carter and Hoffman heirs was

reasonable.

21. The trainee-pilot James Allen, in

the Piper Seneca, was not negligent in the

operation of the Piper Seneca,

22. The pilot of the Beechcraft Bonanza

B-22

was negligent in failing to maintain a

proper lookout for other aircraft, in

failing to see and avoid the Piper Seneca,

and in the operation of the Beechcraft

Bonanza as pilot-in-command,

23. Once the radar approach controller

issued the clearance for final approach to

the Seneca, it had the right-of-way over

all other aircraft, pursuant to FAR 91.67.

CONCLUSIONS OF LAW

The substantive law of the State of

Colorado governs this action. Richards v.

United States, 369 U.S. 1, (1962).

Colorado law provides that the violation

of a statute or ordinance by one whom the

statute or ordinance was designed to pro-

tect constitutes negligence as a matter of

law. If such negligence proximately

causes an injury, the offender cannot

recover damages. Reed v. Barlow, 386 P.2d

B-23

979, 981 (Colo. 1963). Under visual

flight conditions, regardless of whether

an aircraft is proceeding according to an

ATC clearance or receiving radar services,

the primary and ultimate responsibility

for the avoidance of mid-air collisions

rests with the pilots of aircraft. Bibier

v. Young, 492 F.2d 1351 (6th Cir.), cert.

denied, 419 U.S. 996, (1974). The plain-

tiffs make exceedingly forceful arguments

that this burden is unreasonable and

impossible to bear under the circumstances

presented. I have given these arguments

long, serious and frequent consideration,

Inevitably, however, I return to the fun-

damental precept that I must apply the law

as I see it and not as I wish it to be,

The negligence of the pilots of Colorado

Flying Academy's Seneca 774 is imputable

to CFA and its insurers, plaintiffs

Federal Insurance Company and Associated

B-24

Aviation Underwriters. The negligence of

George Carter, pilot of the Bonanza is

imputable to his heirs who seek to recover

for his wrongful death, and likewise that

negligence is imputable to an assignee who

pursues the heirs' cause of action. The

negligence on the part of pilot Carter is

imputable by operation of law to plain-

tiffs CFA, Federal Insurance Company, and

AAU.

Pilots Brian Gardner and George Carter

each failed to maintain the level of vigi-

lance recuired of pilots of the Federal

Aviation Regulations and by good operating

practice. When pilots operate within an

airport traffic area, the duty to keep a

proper lookout is sharpened because the

sky is more congested. Thibodeaux v.

United States, 14 Avi.Cas. 17,653

(E.D.Tex.1976), at 17,659. The language

of the Federal Aviation Regulations

B-25

requires the pilot to operate on the

assumption that there is other traffic.

United States v. Miller, 303 F.2d 703 (9th

Cir. 1962), cert. denied, 371 U.S. 955,

(1963). The pilot has a continuing duty

to be aware of danger with his own eyes

and instruments. Spaulding v. United

States, 455 F.2d 222, 226 (9th Cir. 1972).

The violations of the Federal Aviation

Regulations and good operating practice by

the pilots were the proximate causes of

the collisions herein. Pilot Carter's

operation of his Bonanza without regard

for the airspace restrictions surrounding

the Air Force Academy is indicative of

further negligence when flying nearer the

Denver TCA.

Air controllers are required to abide by

the provisions of their manuals and must

warn of dangers reasonably apparent to

them. The guidelines issued by the FAA to

B-26

its regions prior to the accident con-

cerning containment of terminal instrument

procedures create no duty on the govern-

ment toward the owners and occupants of

small general aviation aircraft, since it

is an internal memo and generates no

justifiable reliance on the part of

pilots. Zabala Clemente v. United States,

567 F.2d 1140 (lst Cir.), cert. denied,

435 U.S. 1006, (1978). An air traffic

controller has the right to rely upon the

assumption that a pilot knows and will

abide by all applicable Federal Aviation

Regulations. Baker v. United States, 417

F.Supp. 471, 486 (W.D.Wash.1975).

Likewise, he is not required to foresee or

anticipate the unlawful, negligent or

grossly negligent acts of pilots. Id.

The foregoing conclusions of law do not

resolve all of the issues between the par-

ties. Given the findings of negligence in

B-27

design, I must consider additional

questions of law concerning the discre-

tionary function. It is axiomatic that

the United States is immune from suit save

as Congress specifically consents to waive

that immunity. United States v.

Sherwood, 312 U.S. 584, (1941). When

sovereign immunity is waived, Congress is

permitted to specify the terms and con-

ditions under which suits may be brought.

Honda v. Clark, 386 U.S. 484, (1967). The

Federal Tort Claims Act is a limited

waiver of that immunity, and the United

States may be found liable only in the

Manner and tc the degree to which it has

consented. Wright v. United States, 568

F.2d 153, 158 (10th Cir. 1977), cert.

denied, 439 U.S. 824, (1978). Certain

categories of torts are excluded from the

Federal Tort Claims Act's coverage by 28

U.S.C. 82680. A court lacks jurisdiction

B-28

to entertain a claim so excluded. First

National Bank v. United States, 552 F.2d

370, 374 (10th Cir.), cert. denied, 434

U.S. 835, (1977).

The provisions of the Federal Tort

Claims Act, 28 U.S.C. 82671, et seg., and

28 U.S.C. 81346(b) do not appu.iy to:

(a) Any claim based upon the 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 regula-

tion be valid, or based upon the exer-

cise 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 discre-

tion involved be abused.

28 U.S.C. 82680(a).

{T]he "discretionary function or duty”

that cannot form a basis for suit under

the Tort Claims Act includes more than

the initiation of programs and activi-

ties. It also includes determinations

made by executives or administrators in

establishing plans, specifications Or

Schedules or operations. Where there is

room for policy judgment and decision

there 1s discretion. It necessarily

follows that acts of subordinates in

Carrying out the operations of govern-

ment in accordance with official direc-

tions cannot be actionable.

Dalehite v. United States, 346 U.S. 15,

35-36, (1953); First National Bank in

Albuquerque v. United States, 552 F.2d 370

(10th Cir.), cert. denied, 434 U.S. 835,

(1977).

The United States may not be subjected

to liability arising from the absence of

stricter air safety regulations. Marr v.

United States, 307 F.Supp. 930, 931 (E.,D.

Okla.1969). The Federal Aviation Act of

1958 authorizes the Federal Aviation

Administrator to regulate the use of navi-

gable airspace by assignments thereof, to

prescribe air traffic rules, and to pro-

mulgate other substantive rules in addi-

tion to operating the air traffic control

system. The process employed by the FAA to

propose, design, and develop the various

TCAs throughout the country was the admi-

nistrative rule making process.

Whether the discretionary function

exception applies, turns to some extent

on:

whether agency policy, as expressed in

rules and regulations adopted by higher-

ranking officials, is for lower-level

personnel to make policy decisions on a

case-by-case basis, guided only by

general statements of agency philosophy,

or whether such lower officials are

required by rules and regulations to

undertake limited specific functions

upon being presented with a situation

requiring some official action on their

Part.

In Re Air Crash Disaster Near Silver

Plume, Colo., 445 F.Supp. 384, 402 (D.Kan.

1977). The functions performed by

airspace specialists, like Mr. Wilson, in

Planning and designing the TCA con-

figuration for a specific location involve

judgment, planning and policy-making

discretionary activities. They are there-

fore protected from tort claims, The

policy decision as to which instrument

approach procedure should or should not be

contained within the TCA is a decision

which is incident, or directly related to,

the attainment of the objectives sought by

the creation of the TCA. The decision by

the FAA not to provide for "buffer" zones

Or VFR corridors in TCA design is a policy

judgment of the agency falling within the

protection of the discretionary function

exception,

A few issues remain, but the findings of

fact and conclusions of law I have made

concerning the negligence of plaintiffs

and the discretionary function exception

to the Tort Claims Act make detailed

discussion unnecessary. The certification

of the design of aircraft as airworthy is

likewise a discretionary function. Even

so, Plaintiffs have not established by a

preponderance of the evidence that the

B-32

certification of the Piper Seneca was

negligent, erroneous or, for that matter,

even incorrect.

A detailed analysis of the law of indem-

nity is not necessary, but I do note that

indemnity is not precluded by voluntary

settlement without giving notice to the

indemnitor where the settling indemnitee

can show that the indemnitor was in fact

liable to the person receiving the settle-

ment. Here, the defendant was not liable

for the Carter-Hoffman claims. Hence,

indemnity does not apply. Likewise, it is

unnecessary to consider fully the

defendant's contention that recovery of

the claims added at trial were barred. I

think defendant is clearly wrong since

these were claims made by the plaintiff

insurance companies who were brought into

the case at the defendant's insistence

after the oriqginal claims had been filed

B-33

by the original plaintiff, Colorado Flyinc

Academy. Thus, were I to find defendant

liable I would permit recovery of the

amounts proven at trial.

IT IS ORDERED that judgment is hereby

awarded to the defendant and against the

plaintiffs. Each party shall bear its owr

costs herein expended,

DATED THIS 2lst day of January, 1981,

f/sf John L. Kane, Jr.

John L. Kane, Jr.

United States District Judge

Footnotes

1. The transcript is as follows:

1531:40 90X: OK, how's that look.

1531:45 Radar: Um, I'll get it here

shortly I think, you

have traffic at

twelve o'clock,

three miles

southeast bound.

90X: Roger, got him,

1532:05 Radar: Seneca seven seven

four roger, start

the base in about

four miles.

1532:20 Radar: Nine zero xray, I

don't know what's

wrong with your

transponder, but it

shows, still showing

zero six forty-six.

90X: Ok, I'll cycle it

again and go back to

zero six six seven,

Radar: That's correct sir.

1532:35 310: Denver Radar Cessna

five one three one

Quebec is with you,

1532355

1533:05

1533345

Radar:

3190:

Radar:

90X:

Radar:

90X:

24R:

Cessna three one

Quebec roger, Denver

altimeter is three

zero zero three.

Three one Quebec,

Nine zero xray turn

northbound now for a

right base entry,

runway eight left.

Roger, how's the

transponder reading

now, and are you

reading me on the

altimeter?

I have negative

transponder reply at

all now.

OK, thank you,

Denver Radar, Cessna

three three two four

Romeo,

1533:50 Radar:

1533355 774:

1534:00 Unk:

945:

1534:05 Radar:

1534:10 24R:

Radar:

Seneca seven seven

four turn right

heading zero one

zero.

zero one zero,

Two west of Cherry

is twin Cessna

(unintelligible).

Denver Radar Air

Midwest nine forty-

five is over Kiowa

with Uniform.

Twin Cessna nine

zero xray contact

Denver Tower now one

eighteen three.

(Unintelligible) Two

four Romeo, over.

Roger, two four

Romeo go ahead.

1534:15

1534:20

1534:25

1534: 30

24R:

Radar:

24R:

Radar:

945:

Radar:

B- 38

Two four Romeo is at

seven thousand and

request a three five

ILS at Stapleton

over.

Two four romeo turn

left heading two

niner zero maintain

seven thousand,

vectors ILS runway

three-five approach.

Two four romeo,

Aircraft over Kiowa,

say again the number,

Air Midwest nine

forty-five eight

thousand five

hundred with Uniform.

Air Midwest nine

forty-five Denver,

squawk code zero six

1535:00 Radar:

945:

1535:10 945:

1535:15 Radar:

945:

Radar:

zero one,

Air Midwest nine

forty-five radar con-

tact two west of

Kiowa, traffic eleven

o'clock and two

miles, westbound.

Negative-contact,

nine forty-five.

OK, we got him now,

nine forty-five.

Roger nine forty-

five, descend and

maintain eight

thousand at your

discretion and

report level.

OK, we'll call you

at eight thousand,

nine forty-five.

How's it look for a

B- 39

1535:25 Tower:

1535: 35

1535: 40

Tower:

Radar:

66Q

Radar:

660:

three-five ILS.

Five IL8, Wh. « s

I've got a United

heavy to going and I

won't have any

departures after

that.

It's OK for a three-

five ILS

(unintelligible).

We'll start him now.

Denver Radar, twin

Cessna six one six

six Quebec.

Twin Cessna six six

Quebec Denver, go

ahead.

Six Quebec, I'm

thirty DME south,

southeast for

landing Denver.

1535: 50

1535:55

1536:00

1536:05

1536:10

Radar:

66Q:

Radar:

Twin Cessna six six

Quebec, Denver,

squawk zero six zero

three, what is your

altitude.

Six Quebec, eighty-

five hundred feet,

was that zero six

zero three.

zero six zero three

for six six Quebec,

Six Quebec.

Seven seven four's

On course,

Seven seven four I'in

sorry about that,

uh, cleared ILS back

course runway eight

right approach

you're seven miles

from Broadway Tower

One eighteen three

at Broadway.

1536:20 774: Seven seven four.

Radar: Cessna two four

Romeo is two and a

half miles south of

Cherry, turn right

heading three three

zero, cleared ILS

runway three-five

approach, Tower one

eighteen three at

Cherry.

24R: Two four Romeo,

1536:30 Radar: November six six

Quebec, radar contact

twenty-three miles

south of Stapleton

and, uh, proceed up

to the airport for a

right base entry,

1536: 40

1536:45

1536:55

1537:00

1537:05

Radar:

774:

Radar:

774:

B-43

runway eight left

and descend and

Maintain eight

thousand.

Six Quebec,

Air Midwest nine

forty-five eight

thousand.

Air Midwest nine

forty-five thank you

sir.

(Unintelligible)

Mayday, mayday,

seven seven four

just hit a bird.

Seven seven four,

uh, what's wrong?

Just hit a goose,

The left wing is in

bad shape, we just

hit a bird, we're

1537315

1537:20

1537225

Radar:

774:

Radar:

774:

B-44

heading straight in

and we got full

power ° os

(unintelligible).

OK, seven four seven

four maintain full

power and uh con-

tinue straight in,

standby this fre-

guency.

We're never gonna be

able to make the

runway.

You got a helicopter

possibly, we got a

bad damage here,

You say you can't

make the runway.

We got a bad crushed

in the left wing tip.

1537:30

1537:35

1537: 50

774: You got a heli-

copter, we're going

to try to make it on

a road here.

Radar: OK, try to make it

on the road, OK,

we'll get a heli-

copter in that posi-

tion right now.

774: We're going to ditch

in the lake, we're

going to ditch in

the lake, is every-

body alright.

Radar: OK, understand,

ditch in the lake,

we'll get a heli-

copter right out

there,

774: We're squawking

seven seven

B-45

(unintelligible).

1538:00 Radar: We'll get a heli-

copter right out

seven seven four,

just do the best you

can, wind now at

Stapleton one five

zero degrees at

seven,

1538:10 24R: Denver Radar, Cessna

three three two four

Romec is Cherry inboun

Radar: Two four Romeo,

Tower one eighteen

three,

1538:30 774: OK, we've got a full

right rudder and

we're heading in

toward the lake on

final here,

SEPTEMBER TERM - November 8, 1985

Before Honorable William J. Holloway, Jr.,

Honorable Oliver Seth, Honorable Robert H.

McWilliams, Honorable James E,. Barrett,

Honorable William E, Doyle, Honorable

Monroe G. McKay, Honorable James K. Logan

and Honorable Stephanie K. Seymour,

Circuit Judges.

COLORADO FLYING ACADEMY,

INC., a Colorado corpora-

tion; FEDERAL INSURANCE

COMPANY, and ASSOCIATED

AVIATION UNDERWRITERS,

Plaintiffs-Appellants,

No. 81-1485

Vv.

THE UNITED STATES OF

AMERICA,

dj Defendant-Appellant.

This matter comes on for consideration

of appellants' petition for rehearing and

suggestion for rehearing in banc in the

captioned appeal.

Upon consideration whereof, the peti-

tion for rehearing is denied by the panel

to whom the case was argued and submitted,

The petition for rehearing having been

denied by the panel to whom the case was

argued and submitted, and no member of the

panel nor judge in regular active service

on the Court having requested that the

Court be polled on rehearing in banc, Rule

35, Federal Rules of Appellate Procedure,

the suggestion for rehearing in banc is

denied.

s/Howard K. Phillips

HOWARD K. PHILLIPS, Clerk

~CORTIFICATE OF SERVICE

I, Lb. Be. Vllstrom, one of the

attorneys for the petitioners herein, and

a member of the Bar of the Supreme Court

of the United States, hereby certify that

on the fifth day of February, 1986, I

served copies of this Petition for Writ of

Certiorari to the United States Court of

Appeals for the Tenth Circuit, by mailing

copies in a duly addressed envelope, with

first class postage prepaid, to the fol-

lowing attorneys of record:

Gary W. Allen, Esq.

Stuart E. Schiffer, Esq.

U. S. Department of Justice

Torts Branch, Civil Division

P. O. Box 14271

Washington, D.C. 20044

Robert N. Miller, Esq.

U. S. Attorney

1200 Federal Office Building

Drawer 3615

Denver, Colorado 80294

- oe @: C OAL 2 bs Jo~

L. B. Ullstrom

Law Offices of L. B. Ullstrom

601 Broadway, Suite 400

Denver, Colorado 80203

Telephone: 303/292-3880

Attorneys for Petitioners

CERT-1

AFFIDAVIT OF MAILING

I, Le. B. Ullstrom, one of the

attorneys for the petitioners herein, and

a member of the Bar of the Supreme Court

of the United States, hereby certify that

on the fifth day of February, 1986, I

deposited in the United States Post Office

located at 1823 Stout Street, Denver, Colo-

rado, with first class postage prepaid,

and properly addressed to the Clerk of the

Supreme Court of the United States, within

the time allowed for filing, this Petition

for Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit.

O-y

OS hee £4

Le fo CLOE Zar

L. B. Ullstrom

Law Offices of L. B. Ullstrom

601 Broadway, Suite 400

Denver, Colorado 80203

Telephone: 303/292-3880

Attorneys for Petitioners

STATE OF COLORADO )

) ss.

CITY AND COUNTY OF DENVER )

SUBSCRIBED AND SWORN to before me

at Denver, Colorado this S™ day of Febru-

ary, 19986.

eg Oe

eee i .

NOTARY PUBLIC

State of Colorado

My commisgion expires:

AFF-1

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.