# Petition for Writ of Certiorari — Proctor v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1804%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 476 U.S. 1183 ## Text In THE Supreme Court of the Gnited States Octoser Term, 1985 LESLIE WALPOLE PROCTOR, et al., Petitioners, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HUGH C. GRIFFIN* WILLIAM P. BUTLER WALLACE E. MALONEY PHILIP M. FOSS LORD, BISSELL & BROOK 115 South LaSalle Street Chicago, Illinois 60603 (312) 443-0700 Counsel for Petitioners * Counsel of Record Photex — 444 North Wabash Avenue — Chicago 60611 — 321-0223 i QUESTION PRESENTED FOR REVIEW Did this Court intend its discretionary function holding in the Varig Airlines case! to immunize any and all neglli- gent conduct by every federal regulatory agency employee engaged in carrying out a regulatory function, no matter how operational and violative of the agency’s own policies and directives the employee’s conduct may be? 1 United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984). il TABLE OF CONTENTS QUESTION PRESENTED FOR REVIEW ... TABLE OF AUTHORITIES ................. OPINIONS BRIO hccsscsscacuseaene eee SURES ENON oisvviens cu ngaeneeie ees APPLICABLE STATUTORY PROVISIONS ... STATEMENT OF THE CASE ............... REASONS RELIED ON FOR ALLOWANCE OF THE WRIT: I, THE COURTS OF APPEAL ARE IN PA- TENT CONFLICT AND DISAGREEMENT AS TO THE INTERPRETATION OF THIS COURT’S HOLDING IN THE VARIG AIR- LINGS CARE. .50sciuswenean eee A. Decision In Velie 4...lying with the said fire containment regulations when such compliance did not exist; 3) that these negligent inspection activities by FAA personne! caused petitioners’ subrogor, who relied on that FAA in- spection, to suffer the loss for which this action is brought. CR 1 para. 9, 10, 11 and 17. = C. Conflict In Decisions After Varig. In the two years since this Court’s decision in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984), there has literally been a morass of diver- gent Court of Appeal and District Court decisions as to its meaning. All Regulatory Activity Protected. Some courts, like the Ninth Circuit in the case at bar, have interpreted Varig to confer a blanket of immunity over any and all negli- gent conduct by every federal regulatory agency employee engaged in carrying out a regulatory function, no matter how nondiscretionary and violative of the agency’s own policies and directives the employee’s conduct might happen to be. E.g., Hylin v. United States, 755 F.2d 551 (7th Cir. 1985) and Russell v. United States, 763 F.2d 786 (10th Cir. 1985) (Varig discretionary function exception applies to negligent inspection activities by Mine Safety and Health Administration (MSHA) employees); General Pub- lic Utilities Corp. v. United States, 745 F.2d 239 US. cert. den. 105 S. Ct. 1227 (3d Cir. 1984) (Varig discre- tionary function exception applies to negligent inspection activities by Nuclear Regulatory Commission employee in- specting nuclear plant); Waymire v. United States of America, (D.Ct. Kan. 1/14/86) (Civ. No. 84-2428) (FAA pro- tected by discretionary function exception for negligent inspection activities of its employees, relying on Proctor.) All Regulatory Activity Not Protected. Other courts have interpreted Varig in the manner that Petitioners urge here and have held that it is the nature and quality of the regulatory employee’s conduct that should be examined, not his status, and therefore acts of negligence that are not discretionary and in fact violate the regulatory agen- —138— vo cy’s own policies are not protected. Collins v. United States, 783 F.2d 1225 (5th Cir. 1986) (Varig discretionary function exception did not apply to protect negligent mine inspection by employee of MSHA); Alabama Elec. Co-op, Inc. v. United States, 769 F.2d 1523 (11th Cir. 1985) (Varig discretionary function exception did not apply to protect negligent design decisions on the part of an engineer with Army Corps of Engineers); McMichael v. United States, 751 F.2d 303 (8th Cir. 1985) (Varig discretionary function exception did not apply to negligence of Defense Depart- ment inspectors who violated the Department’s inspection policies); Andrulonis v. United States, 593 F.Supp. 1336 (N.D.N.Y. 1984) (discretionary function exception did not apply to negligence by employee of Federal Center for Defense while carrying out his responsibilities under a federal wildlife immunization program); Berman v. United States of America, (N.D. Ga. 1/4/85) (Civ. Act. C80-1479A, C81-301A) (various acts of negligent conduct by FAA em- ployees with respect to the administration of a flight test was not protected by Varig discretionary function excep- tion); Marine Coal Transport Corp. v. United States, (S.D. N.Y. 5/31/85) (84 Civ. 5265) (Varig discretionary function exception did not apply to negligent vessel inspection con- ducted by Coast Guard employees). The conflict in decisions was best summed up by the Fifth Circuit in Collins v. United States, supra, rejecting the contrary holding of the Seventh Circuit in Hylin v. United States, supra, and stating (783 F.2d at 1229 n. 3): “To the extent that the holding in Hylin v. United States, 755 F.2d 551, 554 (7th Cir. 1985) (per curiam) supports the government’s position, we find it unper- suasive. .. . We disagree with Hylin. . . . that the presence of discretion in any aspect of the regulatory process means that at any stage of it negligent con- duct is within §2680(a).’’ (Emphasis added) =" The issue was also well-framed by the District Court in Marine Coal Transport Corp. v. United States, supra, (Shp Opinion, pp. 4-5): “Plaintiffs contend that the instant ease is distinguish- able from Varig. Plaintiffs purport not to ‘challenge any policy decision or discretionary act of the United States Coast Guard.’ Rather, plaintiffs ‘allege that the Coast Guard’s duly appointed inspectors negli- gently failed to act in conformity with delegated au- thority and with long established procedures imple- mented under the Coast Guard statutory mandate to inspect merchant vessels. Plaintiffs thus claim to pre- sent the factual scenario which Varig itself distin- guished: A government employee’s negligent execu- tion of a discretionary safety compliance program. Such a claim, plaintiffs argue, raises only the issue of individual negligence and does not challenge, as plaintiffs claim in Varig necessarily did, the social wisdom, political practicability or economic expediency of an agency’s regulatory scheme. Varig is distin- guishable on the ground plaintiffs articulate .. . Whether this distinction will ultimately be sustained will depend on the Supreme Court’s evaluation as to the extent to which it undercuts the reasoning in Varig.”’ (Emphasis added). This distinction of Varig is exactly the distinction urged by Petitioners and rejected by the Court of Appeals in this case. Petitioners here essentially alleged that duly appointed FAA inspectors negligently failed “to act in con- formity with their delegated authority and with estab- lished procedures” which in this case dictated a complete and thorough examination of the L-1011 cargo compart- ment design and thus presented the factual scenario of a government employee’s “negligent execution of a discre- tionary safety compliance program.” _ in sum, the instant case squarely presents the very issue on which the Circuit Courts of Appeals and the Dis- trict Courts cannot agree after Varig. As the Marine Coal Transport Corp. decision correctly notes, such a conflict over the meaning of a decision of this Court can only be resolved by this Court. Thus, to give needed guidance to the federal bench and bar on this recurring issue and to stop the burgeoning growth of conflicting decisions, we urge this Court to act now to resolve the conflict by granting the Writ of Certiorari sought herein. Il. THE GOVERNMENT’S ATTEMPT TO CONVERT THE DISCRETIONARY FUNCTION EXCEPTION TO A “REGD- LATORY”’ FUNCTION EXCEPTION SHOULD NOT BE ALLOWED WiTHOUT REVIEW AND APPROVAL BY THIS COURT. As the post-Varig cases makes clear, the government has attempted to use Varig to escape Federal Tort Claim Act liability in virtually every case where the negligent gov- ernment employee (no matter how ministerial, operational and non-discretionary his negligent conduct) was employed by a federal regulatory agency involved in carrying out a regulatory function. Thus, in the case at bar, the govern- ment’s Court of Appeals’ brief was candid to state that its position was not just that all negligence by FAA em- ployees engaged in the aircraft certification process was protected by the discretionary function exception, but rather that the government could not be held liable in tort in any case “for carrying out its regulatory duties” (Appellee Br. 26-27). Significantly, because of this all encompassing interpre- tation of Varig, the government did not even attempt to rebut Petitioners’ contention below that adoption of the sae: emcees ia meaaaS raat areas == government’s view in the instant case would mean that if during the course of an FAA certification test flight an FAA pilot’s negligence caused the aircraft to crash kill- ing 100 people, the government would be immune from suit simply hecause at the time of the accident the FAA was involved in the “certification process.” Similarly, the FAA would also be protected where an FAA employee, ordered to perform a specific inspection, instead kept one eye or both on the T.V. or even took the afternoon off and went to the Rams game.’ The government did not respond to these examples because this is precisely what it wants the law to be after Varig. This Court in Varig gave no indication of such an ominous holding. Such a broad proposition and interpre- tation of Varig would overrule literally scores of prior decisions upholding Federal Tort Claim Act liability for negligent, nondiscretionary misconduct by federal regula- tory agency employees. E.g., Lindgren v. United States, 666 F.2d 978 (9th Cir. 1982) (Bureau of Reclamation); McGarry v. United States, 549 F.2d 587 U.S. cert. den. 434 U.S. 922 (9th Cir. 1977) (Atomic Energy Commission); Griffin v. United States, 500 F.2d 1059 (8d Cir. 1974) and ‘Schindler v. United States, 661 F.2d 552 (6th Cir. 1981) (Department of Health, Education and Welfare); Gross v. United States, 676 F.2d 295 (8th Cir. 1982) (Agricultural Stabilization and Conservation Service Committee). Such an interpretation of Varig also overrules the here- tofore unanimous decisions (relied upon by Petitioners below) holding that no discretionary function decision should be made without a full hearing to determine the 7 We believe the evidence will show the negligence of the FAA inspectors in the instant case to be just as irresponsible and as violative of the FAA’s own policies as this example. =, = jurisdictional facts as was done in Varig. E.g., Canadian Transport Co. v. United States, 663 F.2d 1081, 1093 (D.C. Cir. 1980) (summary judgment reversed and case remanded for further proceedings to establish facts relating to govern- ment’s claim that Coast Guard was making ‘“‘policy judg- ments” protected by 2680(a)); Schindler v. United States, 661 F.2d 552, 557 (6th Cir. 1981) (whether or not agency decision complained of protected by §2680(a) requires further factual analysis and perhaps expert testimony); McBeath v. Inter-American Citizens for Decency Committee, 374 F.2d 359, 363 (5th Cir. 1967) (error for trial court to grant 12(bX1) motion without opportunity for full proof on merits when question of jurisdiction was so “inextricably con- nected with the merits of the case itself’’); Ducey v. United States Coast Guard, 713 F.2d 504, 515 (9th Cir. 1983) (case remanded for examination of whether duty to warn of or guard against hazards on facts of case fell within discretionary function exception). Before Varig, almost all courts rejected the govern- ment’s claim that the discretionary function exception in 28 U.S.C. §2680(a) acts to ‘‘exclude all claims arising from acts of a regulatory nature,” Griffin v. United States, supra, 500 F.2d at 1063. Since Varig, many courts have still rejected the government’s argument as violative of the very purposes of the Federal Tort Claims Act (See Point I supra). Indeed, acceptance of the government’s broad brush application of Varig to encompass all regula- tory function activity would change the discretionary func- tion exception from an exception for policy type decisions to an all encompassing rule whereby the government is insulated from “nearly all tort liability,” thereby emascu- lating the very purposes of the Federal Tort Claims Act. Collins v. United States, supra, 783 F.2d at 1234 (con- curring opinion). —18— At the very least, this Court, which decided Varig, should be the one to decide whether the government’s pervasive interpretation of Varig is correct. An interpretation of the discretionary function exception that would make it a means by which Federal Tort Claims Act liability is nulli- fied for any and all negligent conduct by government em- ployees of regulatory agencies—even where that conduct contravenes the very regulatory policies, standards and procedures under which the employee is acting—should not become the law of the land without review by this Court. CONCLUSION To resolve the patent conflict between the Circuit Courts of Appeal as to the meaning of this Court’s hold- ing in the Varig case as well as to decide the important issue of whether all federal regulatory agency negligence is protected by the discretionary function exception to the Federal Tort Claims Act, Petitioners respectfully request that a Writ of Certiorari issue to review the judgment and opinion of the Ninth Circuit Court of Appeals herein. Respectfully submitted, HUGH C. GRIFFIN * WILLIAM P. BUTLER WALLACE E. MALONEY PHILIP M. FOSS LORD, BISSELL & BROOK 115 South LaSalle Street Chicago, Illinois 60603 (312) 443-0700 Counsel for Petitioners * Counsel of Record APPENDIX INDEX TO APPENDIX Opinion of the Court of Appeals for the Ninth Circuit, rendered January 28, 1986 ..... App. 1 Memorandum Order of the U.S. District Court for Central District of California, rendered TE UES eS 5506000 cc cesccce App. 4 Relevant Federal Aviation Regulations ..... App. 10 App. 1 Opinion Of Court Of Appeals Rendered January 28, 1986 [Filed January 28, 1986] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 84-6339 D.C. No. CV 83-3415-AWT LESLIE WALPOLE PROCTOR, et al, ) Plaintiffs-Appellants, v. ) OPINION ) UNITED STATES OF AMERICA, ) Defendant-Appellee. ) Appeal from the United States District Court for the Central District of California Honorable A. Wallace Tashima, Presiding Submitted May 9, 1985, Before: WRIGHT, ALARCON, and Norris, Circuit Judges PER CURIAM: This is an action brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-80 (1982), for damages for loss of an L-1011 aircraft which was destroyed by a fire that originated in the cargo compartment. Plaintiffs base their claim that the government is liable on the allega- App. 2 tion that the Federal Aviation Administration (FAA) neg- ligently inspected the cargo compartment for fire safety in the process of certificating the aircraft. The district court dismissed the action pursuant to Fed. R. Civ. P. 12(bX1) for lack of subject matter jurisdiction, ruling that the action was barred by sovereign immunity because the FAA’s conduct in certificating the aircraft fell within the discretionary function exemption of the FTCA. 28 U.S.C. §2680(a) (1982). We affirm. In our view this case is controlled by United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Air- lines), 104 S.Ct. 2755 (1984), and Natural Gas Pipeline Company of America v. United States, 742 F.2d 502 (9th Cir. 1984). In Varig plaintiffs alleged that FAA inspec- tors negligently failed to inspect the lavatory trash recep- tacle during an inspection of plaintiffs’ aircraft, resulting in the spread of a fire in-flight and the destruction of the aircraft. The Supreme Court ruled that both the FAA decision to apply a ‘‘spot-check” system of compliance review, and the application of the “spot-check”’ system to the particular aircraft were protected by the discre- tionary function exemption. 104 S.Ct. at 2768. The Court reasoned that since the extent of a given inspection is entirely within the discretion of the FAA employee on- site there could be no governmental liability under sec- tion 2680(a). 104 S.Ct. at 2767-68. In Natural Gas Pipeline this court held that Varig was controlling precedent in a case involving alleged FAA neg- ligence in failing to discover defects in an aircraft modifica- tion process during periodic inspections of a modification plant. Our court, citing Varig, held that a “challenge to the FAA’s execution of its responsibility by failing to dis- cover the defects sooner and failing to adequately monitor App. 3 the [aircraft manufacturing] operation is barred by the dis- cretionary function exemption [to the FTCA.]” 742 F.2d at 504-05. Plaintiffs attempt to distinguish Varig and Natural Gas Pipeline on the ground that this case involves alleged FAA negligence in the actual inspection of a discrete part of the aircraft, namely, the cargo compartment. We dis- agree that this is a legally significant distinction. Although Varig involved an alleged negligent failure to inspect, the Supreme Court wrote broadly in concluding that ‘the discretionary function exemption precludes a tort action based on the conduct of the FAA in eertificating . . . air- craft for use in commercial aviation.” 104 S.Ct. at 2766. In Natural Gas Pipeline our court held that Varig con- trols a case of alleged negligence in conducting actual in- spections for certification of a modification plant. We now hold that Varig also controls alleged FAA negligence in the actual inspection of discrete parts of an aircraft. AFFIRMED. App. 4 Memorandum Order Of United States District Court For Central District Of California Rendered August 21, 1984 [Filed August 21, 1984] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA No. CV 83-3415 AWT LESLIE WALPOLE PROCTOR, etc., et al., MEMORANDUM ORDER OF DISMISSAL Plaintiffs, V. UNITED STATES OF AMERICA, Defendant. Nm ee ee ee ee ee” This is an action for property damage and indemnity arising out of a tragic airplane accident. Plaintiffs are in- surers who entered into a contract with Saudi Arabian Airlines Corp. (“SAA”) to insure a certain Lockheed Tri- Star L-1011 aircraft, registration number HZ-AHK (the “aircraft”, or “plane’’), for damage to the aircraft and for liability arising out of its ownership and use. Plaintiffs allege that on August 19, 1980, the aircraft was on a regu- larly scheduled flight between Riyadh and Jeddah, Saudi Arabia, when a fire broke out in the aft part of the plane. The plane returned to Riyadh airport, but was consumed by flames. All 301 persons on board the flight were killed. App. 5 Plaintiff insurers allege that they have paid to their in- sured, SAA, $45 million in fuil settlement of loss of the aircraft and over $7 million in good faith settlements of wrongful death claims. Plaintiffs bring this action as sub- rogees of SAA for its claims for property damage and indemnification for payments in settlement of the wrongful death claims. Jurisdiction is invoked under the Federal Torts Claim Act, 28 U.S.C. §§ 2671, et seg. (“FTCA”’). Plaintiffs claim liability on the part of the United States for the alleged “failure” of employees of the Federal Avia- tion Administration (“FAA”) “to properly inspect” the air- craft for compliance with FAA regulations, resulting in the negligent issuance of a type certification for the air- craft. In its answer, the United States denied plaintiff's allegations of negligence and asserted, inter alia, as an affirmative defense, lack of subject matter jurisdiction, pursuant to 28 U.S.C. §2680(a), which bars claims against the United States for discretionary acts of its employees, whether or not the discretion involved is abused. Recently, in two actions against the FAA “for its al- leged negligence in certificating aircraft for use in com- mercial aviation” the Supreme Court held that the actions were “barred by the discretionary function exception.” United States v. S.A. Empressa de Viacao Aerea Rio Grandense (Varig Airlines), 104 S. Ct. 2755, 2769 (1984) (“Varig’’). Before the Court is the government’s motion to dismiss; the sole issue raised by the motion is whether Varig is controlling. The Court stated broadly that it granted certiorari in the two cases “to determine whether the United States may be held liable under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seqg., for the negligence of the Fed- eral Aviation Administration in certificating . . . aircraft App. 6 for use in commercial aviation.” Jd. at 2758. In one case, a fire in the lavatory of a commercial jet resulted in the death of most of its passengers. Plaintiff alleged that the Civil Aeronautics Agency, the FAA’s predecessor, had been negligent when it conducted an inspection and issued a type certificate for an aircraft which did not comply with applicable fire standards. The second case concerned an airplane crash which resulted from an improperly installed heater and the government’s alleged negligence in cer- tificating the heater. In holding that both actions were barred by the discretionary function exception, the Court stated that the exception “plainly was intended to encom- pass discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals.” Id. at 2765. The Court then summarized the FAA’s regulatory activ- ities: In the exercise of this discretion, the FAA, as the Secretary’s designee, has devised a system of com- pliance review that involves certification of aircraft design and manufacture at several stages of produc- tion... . The FAA certification process is founded upon a relatively simple notion: the duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and operator, while the FAA retains the responsibility of policing compliance. Thus, the manufacturer is required to develop the plans and specifications and perform the inspections and tests necessary to establish that an aircraft design comports with the applicable regulations; the FAA then reviews the data for conformity purposes by conducting a “spot check” of the manufacturer’s work. Id. at 2766-67. The Court concluded that the ultimate responsibility for aircraft safety, and the commensurate App. 7 liability for aircraft accidents resulting from a breach of that duty, rested with the aircraft manufacturer rather than with the government: “The FAA has a statutary duty to promote safety in air transportation, not to in- sure it.’’ Id. at 2769 (emphasis in original). Plaintiffs contend that Varig is distinguishable because Varig addressed only the propriety of the FAA’s “spot check” system. Here, plaintiffs do not challenge the pro- priety of that system, but contend that an inspection, which is alleged actually to have been performed, was per- formed negligently. Plaintiffs first note that the Court stated: From the records in these cases there is no indica- tion that either the Boeing 707 trash receptacle or the DeHavilland Dove cabin heater was actually in- spected or reviewed by an FAA inspector or repre- sentative. . . . Respondents thus urge in effect that the negligent failure of the FAA to inspect certain aspects of aircraft type design in the process of cer- tification gives rise to a cause of action against the United States under the [FTCA]. Id. at 2766. Plaintiffs then argue that since they do not allege failure to inspect as did respondents in Varig, but allege a negligently performed inspection, the holding in Varig does not preclude this action. I must disagree. Although plaintiffs may well accurately characterize the position of respondents in Varig, it is clear that the Court adopted the much broader position urged by the govern- ment; that is, that the entire FAA certification process is immune from potential tort liability. Thus, the Court agreed with the government that “the discretionary func- tion exception precludes a tort action based upon the con- duct of the FAA in certificating these aircraft for use in commercial aviation.” Jd. (emphasis added). App. 8 Plaintiffs contention that Varig addressed only the pro- priety of FAA policy directives, rather than employee con- duct in effectuating such directives, is contrary to the opinion. It follows that the acts of FAA employees in ex- ecuting the “spot check” program in accordance with agency directives are protected by the discretionary function exception as well. See Dalehite v. United States, 346 U.S. at 36. The FAA employees who con- ducted compliance reviews of the aircraft involved in this case were specifically empowered to make policy judgments regarding the degree of confidence that might reasonably be placed in a given manufacturer, the need to maximize compliance with FAA regula- tions, and the efficient allocation of agency resources. Id. at 2768. Plaintiffs’ claim of negligent inspection is, in essence, a claim that the FAA should have conducted a more care- ful sr thorough inspection of the aircraft system alleged to have caused the fire. However, Varig insulates from liability the discretionary judgment of FAA employees as to the degree of manufacturer oversight deemed necessary in a given certification. This discretionary judgment en- compasses decisions to thoroughly check, cursorily check, or not to check at all a particular aircraft or system in order to police compliance with the applicable FAA regu- lations. Liability simply may not be placed on the FAA in the certification process, as its role merely is to pro- vide incentive, in addition to that provided by prospec- tive tort liability, for manufacturers to manufacture safe airplanes. A contrary holding would lead to the anomalous situa- tion where the FAA would be immune from liability under Varig if it certificated an aircraft without inspection, but App. 9 would be subject to liability for any certificated aircraft it did inspect. This would tend to encourage the FAA to inspect as few aircraft as possible, and would run counter to the FAA’s statutory responsibility to promote safety in air transportation and to the public interest. It is the kind of judicial second guessing Varig counsels courts to avoid: Judicial intervention in such decisionmaking through private tort suits would require the courts to “‘second- guess”’ the political, social, and economic judgments of an agency exercising its regulatory function. It was precisely this sort of judicial intervention in policy- making that the discretionary function exception was designed to prevent. Id. For the foregoing reasons, I conclude that Varig is con- trolling; the discretionary function exception to FTCA jurisdiction precludes this action. Defendant’s motion is granted and the action is DISMISSED. Dated: August 21, 1984 /s/ A. Wallace Tashima United States District Judge App. 10 Relevant Federal Aviation Regulations § 25.857 Cargo compartment classification. * * * * (d) Class D. A Class D cargo or baggage compartment is cne in which— (1) A fire occurring in it will be completely confined without endangering the safety of the airplane or the occupants; (2) There are means to exclude hazardous quantities of smoke, flames, or other noxious gases, from any compart- ment occupied by the crew or passengers; (3) Ventilation and drafts are controlled within each compartment so that any fire likely to occur in the com- partment will not progress beyond safe limits; and (4) [Reserved] (5) Consideration is given to the effect of heat within the compartmert on adjacent critical parts of the airplane. bor compartments of 500 cu. ft. or less, an airflow of 1500 cu. ft. per hour is acceptable. —s ach De Sains ia ane reall A 1 ® —— i a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1804%3A1. Public record. Not legal advice.