Petition for Writ of Certiorari — Mitchell v. United States

upreme Court, U.S,

4) EILED

8? 3 01 | JUL 29 wer

JOSEPH F. SPANIOL, JR,

No. CLERK

IN THE

OF THE

UNITED STATES

OCTOBER TERM, 1986

Opa V. MITCHELL, AND WASHINGTON

DEPARTMENT OF LABOR AND INDUSTRIES,

Petitioners,

V.

UnitTep STATES OF AMERICA, AND

BONNEVILLE POWER ADMINISTRATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

KENNETH QO. EIKENBERRY

Atterney General

G. Bruce CLEMENT

Assistant Attorney General

Office of the Attorney General

1200 Dexter Horton Building

Seattle, WA 98104

Telephone: (206) 464-7740

HARRISON K. DANO

P.O. Box 1198

Moses Lake, WA 98337

(S09) 765-9285

Attorneys for Petitioners

STAT

QUESTIONS PRESENTED

1. When an agency of the United States otherwise

would be subject to a common law duty to warn of hazards

it created on lands occupied by it, does the discretionary

function exception of the Federal Tort Claims Act (FTCA)

negate that duty, on the basis that the agency has decided

to comply with less stringent, merely minimum regulatory

standards, established by a separate federal agency?

2. Is a proper test of “discretionary function” under

the FTCA to determine whether a governmental act or

decision was made at the “operational” or the “planning”

level?

PARTIES TO THE PROCEEDING

Petitioner Opal V. Mitchell is the widow of Vernon

Mitchell, who died when his single engine airplane struck

an unmarked “ground wire” stretched between the tops of

two power transmission towers erected by the Bonneville

Power Administration, intersecting a busy aerial flight

path along a canyon located in eastern Washington State.

Petitioner Washington State Department of Labor

and Industries administers the State’s industrial insurance

laws. Following her husband’s death, Opal V. Mitchell ap-

plied for, and received, a widow’s pension because of her

husband’s death while in the course of his employment.

She subsequently assigned her interest in her cause of

action against the Bonneville Power Administration to the

Washington State Department of Labor and Industries.

This petition is filed in the name of Mrs. Mitchell pursu-

ant to Wash. Rev. Code § 51.24.050.

Respondent Bonneville Power Administration is a

federal agency authorized to distribute electrical power in

several states, including Washington State.

ll

TABLE OF CONTENTS

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PARTIES TO THE PROCEEDING .................

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REASONS FOR GRANTING THE PETITION.......

I. The Circuits Are In Conflict Concerning The Impact

Of Compliance With Federally Established Mini-

mum Standards On The Application Of The Discre-

tionary Function Exception To The FTCA......

II. The Circuits Are In Conflict Concerning The Con-

tinued Viability Of The Distinction Between Opera-

tional And Planning Decisions As A Test For

Applying The Discretionary Function Exception .

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B. The Eleventh Circuit ...................

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APPENDICES

Appendix A: Opinion of the United States Court of Ap-

peals for the Ninth Circuit, Cause No. 85-

ee eta wee eden a neme eee 8

Appendix B: Oral Opinion As Amended of the United

States District Court for the Eastern Dis-

trict of Washington, Cause No. C-82-880-

ING De as eel a ys gas acaba 6 rhs

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B-1

TABLE OF AUTHORITIES

FEDERAL CASES _

Alabama Electric Cooperative, Inc. v. United States, 769

ah mB 8) Eo SS | rere Terry 10

Aslakson v. United States, 790 F.2d 688 (8th Cir. 1986) .7, 8, 9

Dalehite v. United States, 346 U.S. 15 (1953) ........ 9,10

Drake Towing Co., Inc. v. Meisner Marine Construction

Co., 765 F.2d 1060 (11th Cir. 1985)................ 10

Jackson v. Kelly, 557 F.2d 735 (10th Cir. 1977) ...... 11

Pooler v. United States, 787 F.2d 868 (3rd Cir. 1986). 11

Smith v. United States, 546 F.2d 872 (10th Cir. 1976) 8,9

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

Grandense (Varig Airlines), 467 U.S. 797 (1984) .... 9, 10

United States Fire Insurance Co. v. United States, 806

ee ee ee OD 61 os & dwn es v6 0b06 o sds hao 10

Weiss v. United States, 787 F.2d 518 (10th Cir. 1986) 10

FEDERAL CODES

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STATE STATUTES

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Wash. Rev. Code § SL24000(4) .... 1... ccc cccccccces

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OTHER AUTHORITIES

Restatement of Torts (2d) § 288(c).................. 7

iv

No.

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1986

OpaL V. MITCHELL, AND WASHINGTON

DEPARTMENT OF LABOR AND INDUSTRIES,

Petitioners,

V.

UNITED STATES OF AMERICA, AND

BONNEVILLE POWER ADMINISTRATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

PETITION

Petitioners Opal V. Mitchell and the Washington

State Department of Labor and Industries respectfully

pray that a Writ of Certiorari issue to review the judgment

and opinion of the United States Court of Appeals for the

Ninth Circuit entered in the above entitled proceeding on

April 15, 1986.

OPINIONS BELOW

The opinion for the Court of Appeals for the Ninth

Circuit is reported at 787 F.2d 466 and is reprinted in the

appendix hereto, page Al infra.

The Findings of Fact, Conclusions of Law and Order

of the United States District Court for the Eastern District

2

of Washington (Justin L. Quackenbush, District Judge)

are not reported. The court adopted its oral findings of

fact, which are reprinted in the appendix hereto, page B1

infra.

JURISDICTION

Petitioners filed a claim for damages with the Bon-

neville Power Administration based on Mr. Mitchell’s

death. When the claim was denied, petitioners timely filed

an action under the Federal Tort Claims Act, 28 U.S.C. §

1346(b) (“FTCA”). After a trial on the merits, the District

Court entered judgment on February 1, 1985, finding the

Bonneville Power Administration to have been at fault for

failure to mark aerial obstructions, and awarded damages.

Respondent filed a notice of appeal on March 29, 1985 to

the United States Court of Appeals for the Ninth Circuit.

On April 15, 1986, the Court of Appeals reversed the judg-

ment below, concluding that the Bonneville Power Admin-

istration has “discretionary immunity”, and remanded to

the District Court with instructions to dismiss for lack of

subject matter jurisdiction. On April 29, 1986 petitioners

filed a petition for rehearing en banc with the Court of

Appeals. On April 24, 1987 the Court of Appeals denied

the petition for rehearing.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

STATUTES INVOLVED

28 U.S.C. 3} 1346. United States as

Defendant

(b) * * * [T]he district courts * * * shall have exclu-

sive jurisdiction of civil actions on claims against the

United States, for money damages * * * for injury or

loss of property, or personal injury or death caused by

the negligent or wrongful act or omission of any em-

ployee of the Government while acting within the

scope of his office or employment, under circum-

stances where the United States, if a private person,

would be liable to the claimant in accordance with the

law of place where the act or omission occurred.

28 U.S.C. § 2674. Liability of United States

The United States shall be liable respecting the provi-

3

sions of this title relating to tort claims, in the same

manner and to the same extent as a private individual

under like circumstances * * * *

28 U.S.C. § 2680(a). Exceptions

The provisions of * * * section 1346(b) of this title

shall not apply to—

(a) any claim * * * based upon the exercise or per-

formance or the failure to exercise or perform a

discretionary function or duty on the part of a fed-

eral agency or an employee of the government,

whether or not the discretion involved be abused.

STATEMENT OF THE CASE

Introduction

The District Court concluded on the basis of the facts

presented at trial that the Bonneville Power Administra-

tion (BPA), a federal agency, had a duty to warn of haz-

ards to aerial navigation created by its construction of

power lines spanning a canyon. Having failed to meet that

duty, damages were awarded. The following facts are the

established facts of the case and were accepted by the Cir-

cuit Court.

Factual Background

On the morning of May 18, 1980, at about 8:30 a.m.,

Vernon C. Mitchell, the owner and operator of a small

business in Ellensburg, Washington providing aerial spray

services for agricultural purposes, flew a single engine air-

plane to a place along the Yakima River between Cle Elum

and Ellensburg known as Bristol Flats. Mr. Mitchell was a

careful and experienced pilot with over 18,000 hours of

flying time. He was a former Air Force pilot, an instructor

in aerial safety classes, a flight instructor, an FAA exam-

iner, and had a flawless safety record.

Mr. Mitchell flew above the Yakima River, following a

canyon which is one of the most heavily travelled visual

flight routes in eastern Washington. Pilots frequently fly

low in this area due to weather conditions, or simply to

sightsee. This canyon is intersected at Bristol Flats by a

large complex of power lines which cross the state from the

Columbia River to the Seattie area. The power lines were

4

designed, constructed, and maintained by the defendant,

BPA. There are four tall steel towers on the west side of

the canyon, which are paired with five similar towers on

the east side, holding a total of thirty-three large conduc-

tor wires which droop down into the canyon. The two sets

of towers are more than 2,100 feet apart. The conductor

wires are approximately 1.6 inches in diameter, are

grouped by spacer bars into clusters of three, and are

clearly visible to approaching aircraft.

Unknown to Mr. Mitchell, one pair of towers also had

two 3/s inch steel cables stretched between their tops,

nearly 400 feet above the canyon floor. These ground wires

were not marked with visual warning devices. The purpose

of these ground wires was to conduct lightning strikes to

the ground without damaging the electrical conductors be-

low. These wires were slightly oxidized and virtually im-

possible to see. Mr. Mitchell’s plane struck one of these

ground wires and immediately plunged to the ground, kill-

ing Mr. Mitchell.

The crash was seen by four eyewitnesses. A farmer,

Mr. Wallace, stepped out into his yard after hearing the

plane approach. Three recreational rafters om the Yakima

River also witnessed the accident. These witnesses saw the

plane inexplicably lurch to a stop in midair and plunge to

earth. None of the witnesses initially realized that the

plane had in fact hit one of the ground wires. This was for

the simple reason that none of them could see the wires.

Indeed, Mr. Wallace testified that although he had looked

into the electrical wires hundreds of times while he worked

his field, he had never seen the ground wires until after

Mr. Mitchell’s death.

The trial judge, who had viewed the ground wires

from a helicopter, characterized them as follows:

I find, in fact, that this was a trap for a pilot. A pilot

flying from the north to the south in this area would

clearly see these large transmission lines in the bun-

dles, and then 135 or 140 feet above those lines is the

snare, to wit, a very small in diameter wire of a color

that blends in with the environment and blends in

with these large transmission lines.

The BPA had established a policy of following the

guidelines of the Federal Aviation Administration (FAA)

5

on aerial markings, as a minimum standard for obstruction

marking on new construction. Those guidelines required

marking above 500 feet. However, the BPA also occasion-

ally marked lines where they might otherwise create a pub-

lic hazard, even though not required by the FAA

guidelines. For example, the BPA placed marker balls

where its lines created a hazard to small aircraft on Lake

Roosevelt, at the north end of the Columbia River, al-

though not required by FAA standards. In the vicinity of

the Boardman Bombing Range in northwestern Oregon,

the BPA again voluntarily exceeded the minimum stand-

ards for aerial markers established by the FAA. Finally,

the BPA placed aerial markers wherever its power lines

intersected with other power lines, in order to protect BPA

helicopter crews.

Washington State regulations on aerial obstructions

require markings for wires or lines between 150 and 500

feet above the ground (500 feet being the FAA minimum

standard) where they cross certain visual flight routes fre-

quented by small aircraft. Wash. Admin. Code § § 12-24-

010 et seq. For example, wherever such power lines cross a

canyon (as in this case), a river, a lake, or a mountain pass,

visual markers must be used. Wash. Admin. Code § 12-24-

005(2). It is undisputed that the Washington State Aero-

nautics Division would have required marking of the

ground wires at Bristol Flats if the State had been properly

notified of them by the BPA. Wash. Admin. Code § 12-24-

350(4).

Procedural Background

Opal V. Mitchell, the widow of Vernon Mitchell, filed

a claim for widow’s benefits with the Washington State

Department of Labor and Industries. Mrs. Mitchell’s claim

was approved. Her benefits continue to be paid to this

date. Mrs. Mitchell elected not to pursue her claim against

the BPA, but assigned her rights to the State under Wash.

Rev. Code § 51.24.050(1). If recovery is made against the

BPA, the State will be reimbursed for pension benefits

already paid, and most of the balance of the proceeds from

such recovery will be paid over to Mrs. Mitchell. Wash.

Rev. Code § 51.24.050(4).

6

After its approval of Mrs. Mitchell’s claim, the State

filed an action for damages against the BPA in the United

States District Court for the Eastern District of Washing-

ton. Two theories of liability were advanced by the State—

(1) negligence in stringing and not marking an invisible

cable across a busy aerial highway; and (2) violation of a

landholder’s duty to warn licensees travelling over its land

of dangerous hazards erected by the landholder but invisi-

ble to the licensee. The matter was tried to the court under

the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b).

The District Court found that the BPA was negligent

for failing to install marker balls to warn of the existence

of the ground wires and entered judgment for Mr. Mitch-

ell’s estate and widow for slightly more than $300,000.

The District Court also specifically found that BPA’s

“so-called policy” with respect to the marking of wires did

not fall within the discretionary function exception. See p.

B 9-10 infra.

The Court of Appeals for the Ninth Circuit reversed

and remanded to the District Court with instructions to

dismiss for lack of subject matter jurisdiction, holding that

the BPA’s failure to place marker balls on the ground wires

was the exercise of a “discretionary function” as that term

is used in the FTCA, 28 U.S.C. §2680(a). A petition for

rehearing en banc was denied by the Ninth Circuit Court

of Appeals on April 24, 1987.

REASONS FOR GRANTING THE WRIT

I. The Circuits Are In Conflict Concerning The

Impact Of Compliance With Federally Established

Minimum Standards On The Application Of The

Discretionary Function Exception To The FTCA.

The District Court in this case recognized that the

BPA owed a duty under state regulation of aerial obstruc-

tions and under the common law of torts, tc warn li-

censees, such as Mr. Mitchell, of the hazardous condition

which it had erected on its lands. The District Court re-

jected the notion that the discretionary function exception

to the FTCA, § 2680(a), somehow converted this nondis-

cretionary duty to warn into a matter of immunized gov-

7

ernmental policy, simply because the BPA chose to ignore

its duty in favor of observing less stringent, admittedly

minimum standards, established by the FAA.

The Ninth Circuit reversed, in a decision that funda-

mentally and erroneously broadens the scope of the discre-

tionary function exception to the FTCA. According to the

Ninth Circuit, § 2680(a) protects a federal agency’s failure

to comply with an otherwise applicable mandatory duty of

care, if the agency has opted to ignore that duty, in favor of

observing only less demandng, admittedly minimum re-

quirements established by a separate federal agency.’ In

other words, according to the Ninth Circuit, a decision by a

federal agency to opt out of otherwise applicable manda-

tory duties, in favor of admittedly minimum standards of

another federal agency, is a protected exercise of govern-

mental discretion under the FTCA. In its practical effect,

the Ninth Circuit’s ruling means that for purposes of the

FTCA, federally established minimum standards will be-

come the maximum duty to which an agency of the United

States may be held.’

This interpretation of a § 2680(a) by the Ninth Cir-

cuit is in direct conflict with the Eighth Circuit’s recent

interpretation of that provision in Aslakson v. U.S., 790

F.2d 688 (8th Cir. 1986).

In Aslakson, the operator of a sailboat was killed

when the aluminum mast on his craft struck electrical

power lines owned and operated by the Western Area

Power Administration (WAPA). WAPA was required to

maintain its power lines in conformity with the vertical

clearance requirements of the National Electric Safety

Code (NESC) in effect at the time the lines were in-

stalled—1948, in the Aslakson case. WAPA also had a pol-

icy under which it raised its power lines to comply with

later revisions of the NESC, if the power lines constituted

a safety hazard. The lines involved in the Aslakson case

complied only with 1948 NESC requirements.

‘And this is so under the Ninth Circuit’s decision, in spite of the

fact that the federal agency has often taken precautionary measures

beyond those required by the minimum standards.

*Such a rule, of course, turns basic principles of tort law topsy-

turvy. See, for example, Section 288(c) of the Restatement of Torts (2d)

which recognizes that compliance with a legislative enactment or ad-

ministrative regulation does not preclude a finding of negligence.

8

In Aslakson, the U.S. argued that WAPA’s decision

not to elevate the lines beyond the clearance provided for

by 1948 NESC standards was immunized from liability by

the discretionary function exception to the FTCA. The

Eighth Circuit rejected that argument. It did so on the

basis that WAPA was subject to an established standard—

a duty to elevate its power lines, if they posed a safety

hazard. The Eighth Circuit held that § 2680(a) did not

immunize WAPA’s decision to pursue a course of action it

deemed desirable, where that course conflicted with an es-

tablished safety policy. In other words, § 2680(a) did not

immunize WAPA’s decision to ignore a nondiscretionary

duty in favor of complying with less stringent minimum

standards established by the NESC.

The interpretation of § 2680(a) by the court in

Aslakson directly conflicts with the Ninth Circuit’s inter-

pretation of that provision in the instant case. Here, the

BPA decided to forego compliance with mandatory safety

duties imposed upon it by the common law and state regu-

lations, choosing instead to observe only minimum stand-

ards established by the FAA. In Aslakson, WAPA chose to

ignore a mandatory safety duty imposed by its own policy,

in favor of observing less demanding minimum standards

of the NESC. The Eighth Circuit held that § 2680(a) does

not encompass an agency’s decision to ignore a mandatory

duty in order to comply with less stringent minimum

standards established by another agency. The Ninth Cir-

cuit has held in the instant case that § 2680(a) indeed

shields just such a decision.

The Ninth Circuit’s interpretation of the discretion-

ary function exception also runs contrary to the very pur-

pose of the FTCA. If allowed to stand, it will wholly

undermine the protection that the FTCA was intended to

offer tort victims. For under the Ninth Circuit’s interpreta- !

tion of § 2680(a), each federal agency may decide for itself

whether and to what extent it will be liable in tort. In this

respect, we believe that language of the Tenth Circuit in

Smith v. U.S., 546 F.2d 872 (10th Cir. 1976) expresses well

the critical point. There, as here, the U.S. attempted to

paint a decision to forego compliance with a common law

landholder’s duty to warn of hazards as a protected gov-

ernmental policy decision. The Tenth Circuit rejected the

government’s effort stating:

If we were to accept the Government’s broad interpre-

9

tation of the discretionary exception, it is difficult to

perceive which duties under tort law could not be

avoided by a similar policy decision to ignore them.

Smith, supra, 546 F.2d 877.

This Court recognized in U.S. v. S.A. Empresa de

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

797 (1984) that Congress did not intend that the discre-

tionary function exception insulate federal agencies from

liability for common law torts.

* * * [T]he common law torts of employees of regu-

latory agencies, as well as of all other Federal agen-

cies, would be included within the scope of the bill.

Varig Airlines, supra, 467 U.S. at 810, quoting from hear-

ings before the House Committee on the Judiciary, 77th

Congress, 2nd Session, 28, 33 (1942).

The principle applied by the Ninth Circuit in the in-

stant case frees any federal agency from liability for its

common law torts, to the extent that the agency chooses to

acknowledge and adopt a lesser duty.

Ii. The Circuits Are In Conflict Concerning

The Continued Viability Of The Distinction Be-

tween Operational And Planning Decisions As A

Test For Applying The Discretionary Function

Exception.

In response to the distinction in Dalehite v. U.S., 346

U.S. 15 (1953), between decisions at the operational level,

as contrasted to the planning level, the Ninth Circuit

stated, “this court has abandoned such a distinction in

light of Varig Airlines’ focus on the nature of the conduct

involved.” This abandonment is at odds with the rule ap-

plied by the Third, Eighth, Tenth, and Eleventh Circuits.

A. The Eighth Circuit

We have previously discussed the Eighth circuit’s de-

cision in Aslakson. We additionally note here that the

Aslakson court rejected the government’s argument that

any decision by WAPA officials regarding the safety of its

power lines would be protected by the discretionary func-

tion exception. In so doing, the Court of Appeals relied

upon the distinction between decisions made at the cpera-

|

10

tional level and those made at the planning level. The

Court stated:

* * * As a general rule, operational mismanagement

in the maintenance of electrical transmission lines

does not fall within the scope of the discretionary

function exception * * * *

B. The Eleventh Circuit

In United States Fire Insurance Co. et al. v. United

States, 806 F.2d 1529 (11th Cir. 1986), the court held that

the discretionary function exception did not protect the

United States from liability for the Coast Guard’s negli-

gence in placing and maintaining navigation markers. The

court acknowledged the general rule that the discretionary

function exception shields the government from liability

for negligent acts of its employees carrying out operations

of government in accordance with official direction, citing

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

the court went on to say that § 2680(a) shields the govern-

ment from liability only where the negligent acts are “dic-

tated by guidelines adopted at the policy-making level.”

U.S. Fire Insurance Co., supra at 1536. Similarly, in

Drake Towing Co., Inc. v. Meisner Marine Construction

Co., 765 F.2d 1060 (11th Cir. 1985), the Eleventh Circuit

held that the United States could be sued for negligent

placement of temporary buoys by the Coast Guard. The

Court distinguished both Dalehite and Varig Airlines, |

noting that the Coast Guard in Drake Towing, had made a |

policy decision to place buoys in certain locations. How-

ever, having made that discretionary decision, negligence |

in actual placement of the buoys would not be protected by

the discretionary function exception. “Once such aides are

established, * * * negligence in their maintenance and op-

eration implicates operational functions and is actionable.”

Druke Towing Company, supra at 1064. Accord, Alabama

Electric Cooperative, Inc. v. United States, 769 F.2d 1523

(11th Cir. 1985).

C. The Tenth Circuit

The operational versus planning level distinction has

also recently been applied in the Tenth Circuit. See, e.g.,

Weiss v. United States, 787 F.2d 518 (10th Cir. 1986) at

11

523, quoting Jackson v. Kelly, 557 F.2d 735 (10th Cir.

1977) (en banc):

Generally speaking, a duty is discretionary if it in-

volves judgment, planning, or policy decisions. It is

not discretionary if it involves enforcement or admin-

istration of a mandatory duty at the operational level,

even if professional expert evaluation is required.

D. The Third Circuit

Finally, the operational/planning test is also applied

by the Third Circuit. For example, in Pooler v. United

States, 787 F.2d 868 (3rd Cir. 1986) the Third Circuit af-

firmed a district court decision dismissing the actions of

two persons who claimed they were falsely arrested as the

result of an investigation of charges of marijuana sales on

the premises of a Veterans Administration Hospital. In

reaching its decision, the court expressly applied the oper-

ational/planning distinction. Pooler, supra at 870.

CONCLUSION

The Ninth Circuit has gone too far in its interpreta-

tion of the discretionary function exception to the FTCA.

That exception is not intended to allow federa! agencies,

such as the BPA, to flout common law duties in favor of

compliance with less stringent, minimum standards estab-

lished by another federal agency. In the instant case, the

BPA decision to place unmarked ground wires across heav-

ily travelled airspace was a decision actionable at common

law. Congress did not exempt such decisions from liability

under the Federal Tort Claims Act.

The Ninth Circuit has also gone too far in its com-

plete rejection of the operational versus planning level test

for discretionary decisions under the FTCA. We believe

the Ninth Circuit erroneously has jettisoned a valuable

benchmark in interpreting § 2680(a) and has thereby lost

sight of the primary purpose of the discretionary function

exception—i.e., to insulate governmental policy decisions

from liability in tort.

Petitioners Opal V. Mitchell and the State of Wash-

ington respectfully submit that the Supreme Court should

grant their petition for certiorari to the Ninth Circuit

Court of Appeals. Its decision in the instant case is con-

12

trary to principles previously established by this Court in

construing the discretionary function exception to the Fed-

eral Tort Claims Act. Moreover, its decision is clearly in

conflict with decisions of the Third, Eighth, Tenth, and

Eleventh Circuits.

This conflict can and should be resolved by granting

our petition for certiorari in this case.

Respectfully submitted,

KENNETH QO. EIKENBERRY

Attorney General

G. Bruce CLEMENT

Assistant Attorney General

Attorneys for Petitioners

A-1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 85-3744

DC NO. C 82-880-JLQ

OpaL V. MITCHELL,

Plaintiff-Appellee,

US.

UNITED STATES OF AMERICA,

Defendant-Appellant.

Appeal from the United States District Court for the

Eastern District of Washington

Justin L. Quackenbush, District Judge, Presiding

Argued and Submitted February 13, 1986

Seattle, Washington

Before: WALLACE and SxopiL, Circuit Judges, and

HENDERSON,* District Judge

SxopiL, Circuit Judge:

The government appeals from a district court finding

of liability for the death of Vernon Mitchell. We reverse.

FACTS AND PROCEEDINGS BELOW

Vernon Mitchell contracted to crop dust a field lo-

cated near the Yakima River in Washington. On May 18,

1980 his plane struck unmarked power transmission

ground wires, resulting in his death. His wife, Opal Mitch-

ell, brought a wrongful death action against Bonneville

Power Administration (“BPA”), pursuant to the Federal

Torts Claims Act, 28 U.S.C. § 2674 (“FTCA”). She alleged

the BPA negligently failed to alert pilots of the presence of

ground wires by failing to install warning devices. The gov-

ernment moved for summary judgment, claiming its deci-

sion not to mark ground wires with warning devices

constituted a “discretionary function” within the protec-

*The Honorable Thelton E. Henderson, United States District

Judge for the Northern District of California, sitting by designation.

A-2

tion of 28 U.S.C. § 2680(a). Alternately, the government

claimed its decision was reasonable.

The district court denied the government’s motion.

After trial, the court concluded the agency was negligent in

failing to mark the ground wires, and in “blindly relying

upon the advice of the Federal Aviation Administration as

to whether or not the lines should be marked without mak-

ing any independent investigation.” The court also found

Mr. Mitchell was twenty-five percent contributorily negli-

gent.

The government appeals.

DISCUSSION

A party may bring a cause of action against the

United States only to the extent the government has

waived its sovereign immunity. United States v. Orleans,

425 U.S. 807, 814 (1976). A party bringing a cause of action

against the federal government bears the burden of dem-

onstrating an unequivocal waiver of immunity. Holloman

v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983), cert. denied,

466 U.S. 958 (1984).

28 U.S.C. § 2680(a) sets forth the so-called discretion-

ary function exception to the government’s waiver of im-

munity under the FTCA. This section precludes the

exercise of jurisdiction over any claims “based on 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 discretion involved be abused.” 28 U.S.C. § 2680(a).

See Dalehite v. United States, 346 U.S. 15, 33 (1953).

This court reviews de novo a district court’s determi-

nation of subject matter jurisdiction under the discretion-

ary function exception. Chamberlin v. Isen, 779 F.2d 522,

523 (9th Cir. 1985). The court must look to the nature of

the allegedly negligent conduct to determine whether the

discretionary function exception governs in a particular

case. “[T]Jhe basic inquiry * * * is whether the challenged

acts of a Government employee—whatever his or her

rank—are of the nature and quality that Congress in-

tended to shield from tort liability.” United States v. S.A.

Empresa de Viacao Aerea Rio Grandense (“Varig Air-

NN ee |

A-3

lines”, 467 U.S. 797, 104 S. Ct. 2755, 2764-65 (1984). The

purpose of the exception is to prevent judicial second-

guessing of legislative and administrative policy. Jd. at

2765. If judicial review would interfere with this kind of

agency decisionmaking, the exception applies and thereby

denies this court jurisdiction. Chamberlin, 779 F.2d at 523.

In this case the district court found the agency’s deci-

sion to rely on FAA recommendations to not mark ground

wires was not protected by the discretionary function ex-

ception. The court reasoned the agency decision was made

at the operational level rather than the planning level. See

Driscoll v. United States, 525 F.2d 136, 138 (9th Cir.

1975). This court has abandoned such a distinction in light

of Varig Airlines’ focus on the nature of the conduct in-

volved. Begay v. United States, 768 F.2d 1059, 1062 n.2

(9th Cir. 1985). In Begay, we concluded that the decision

not to warn of potential safety hazards “was clearly the

type of decision of an agency which Congress sought to

protect from judicial review under the Tort Claims Act.”

Id. at 1066.

The BPA’s decision not to install warning devices is

protected by section 2680(a). The BPA did not negligently

install or maintain warning devices, but rather, affirma-

tively decided to adopt the FAA’s policy of not marking

ground wires below 500 feet. The Federal Aviation Admin-

istration Act, 49 U.S.C. § 1421 authorized the FAA to regu-

late air safety. The BPA does not have similar statutory

authorization and therefore chose to rely on FAA stand-

ards regarding whether to mark ground wires. Its choice to

leave air space safety standards to be set chiefly by the

FAA was “grounded in social, economic, and political pol-

icy.” Varig Airlines, 104 S. Ct. at 2765. Our review of this

decision would encroach upon the agency’s decisionmaking

process; the exception therefore applies and we are without

jurisdiction to review the agency’s decision. See Begay, 768

F.2d at 1064.

Mitchell argues that “BPA was without discretionary

authority to breach the duty of care imposed by Washing-

ton law.” Negligence, however, is irrelevant to the discre-

tionary function issue. The FTCA itself exempts

discretionary functions “whether or not the discretion in-

ital

A-4

volved be abused.” 28 U.S.C. § 2680(a). See also Cisco v.

United States, 768 F.2d 788, 789 (7th Cir. 1985).

Mitchell also argues this case is distinguishable from

Varig Airlines and Begay because in those cases the agen-

cies did not act in “the primary role.” That is, the agencies

were regulating industries which were more directly re-

sponsible for the dangerous condition and resulting injury.

This court, however, has stated that section 2680(a) is not

relegated to strictly regulatory actions. Begay, 768 F.2d at

1064; see also Varig Airlines, 104 S. Ct. at 2763; Dalehite,

346 U.S. at 39-42.

The judgment below is REVERSED and this case is

REMANDED to the district court with instructions to dis-

miss for lack of subject matter jurisdiction.

REVERSED and REMANDED.

B-1

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

NO. C-82-880-JLQ

December 13, 1984

Spokane, Washington

OpaL V. MITCHELL, personal representative

in the matter of the Estate of

VERNON C. MITCHELL, deceased,

Plaintiff,

US.

Unitep STATES OF AMERICA,

Defendant.

ORAL OPINION AS AMENDED

THE HONORABLE JUSTIN L. QUACKENBUSH, Judge

December 13, 1984

12:30 o’clock, PM

THE COURT: I make the following findings of fact:

I find that on the morning of May 18, 1980, the day of

Mount St. Helens eruption, at about 8:30 AM, Mr. Vernon

Mitchell left a small airport to the south of Ellensburg in a

Gruman Ag-Cat carrying what would appear to be almost

a full load of agricultural spray product.

I find that sometime prior to that, a few days, some

three to ten days prior to May 18, 1980, that his son, Ron

Mitchell, had overflown the Wallace field which was to be

sprayed.

I further find that on that trip by the son, Ron Mitch-

ell, either he did not observe the ground wires or he failed

to specifically advise his father of the ground wires. That,

of course, does not limit the responsibility which Mr.

Vernon Mitchell had in seeing what was there to be seen,

as pointed out by Mr. Jones. The goats peaks were there to

be seen; whether the ground wires could be seen is a matter

that I will subsequently cover.

I find that Mr. Vernon Mitchell flew from the area of

Ellensburg where he intersected the southeast end of the

OOO eT

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Wallace field. I find that Mr. Mitchell then flew the length

of the Wallace field and that he generally followed the

Yakima River as he travelled in the northwesterly direc-

tion.

I find that at the time of the accident Mr. Mitchell

was a most experienced pilot having in excess of 18,000

hours of flying time, thousands of hours of experience in

agricultural spraying aircraft. I find that he was a careful

pilot. There is no evidence to indicate that Mr. Mitchell

was anything but a most careful pilot. In fact, he had in-

structed himself in aerial safety classes. He was a flight

instructor, an FAA examiner, and I find Mr. Mitchell was,

in fact, a careful and observant pilot with much experience

around power lines.

I find that Mr. Vernon Mitchell knew that the power

lines in question existed and where they existed, to-wit, at

the north end of the Wallace field.

I find that the Bonneville Power lines in question

cross a valley. There are four sets of towers across this

valley with apparently five sets of lines totalling 33 con-

ductors. This valley is an agricultural valley.

The power lines traverse the Yakima River; they tra-

verse the old main highway between Seattle and Spokane,

Highway 10; they traverse railroad tracks; they traverse an

area that has been used for agricultural purposes for many

years and an area where agricultural spraying has taken

place for many years, including many years prior to the

erection of the last power line in question in 1973 or 1974,

being the Grand Coulee-Raver Line. Apparently these

power lines cover an area of some 650 feet in width as they

travel from east to west. Only the Grand Coulee-Raver

Line has ground wires on top of the large transmission or

conductor lines.

It would appear that the valley floor in the area of the

power lines has an elevation of approximately 1,787 feet

above sea level. Without regard to any sag in the ground

wires, a straight line from the top of the goats tail on the

tower supporting the Grand Coulee-Raver Line from east

to west would average out at 2,193 feet. One would assume

that if the line, the ground wire, ran straight that that

would have been its elevation above sea level. The differ-

B-3

ence between that and the floor of the valley below the

lines would be 406 feet. Taking into account the sag, and I

recognize that it varies based upon temperature, wind con-

ditions, and ice load, it would appear that the ground wires

were some 380 feet above the floor of the valley; certainly

over 350 feet.

The transmission lines, which are some 135 or 140

feet below these ground wires, are 1.6 inch cables in groups

of three, those groupings having a diameter of some 18 to

24 inches. Those transmission lines, both from the testi-

mony presented in court and from my own personal obser-

vation as a result of counsel taking me to the scene, are

clearly visible. Those transmission lines, as they are

grouped together, are easily visible both from the air and

from the ground.

On the other hand, the ground wires, some 135 or 140

feet above the transmission lines, are extremely difficult to

see. They are light colored, only three-eights of an inch in

diameter; they blend with the environment and with the

sky. As one flies from the north to the south, from the

testimony, one would look for the ground wires, and the 33

conductor wires are to the south of the ground wires and

the location. The presence of those conductors causes the

ground wire, if it is seen or can be seen to blend in with the

33 transmission lines contained on the other three lines to

the south. Once again, that finding is based upon looking

for the ground wires from a plane to the north of the

ground wires and the conductors. The goats peaks are eas-

ily seen; however, there are no goats peaks on the towers

other than the Grand Coulee-Raver Line obviously be-

cause there are no ground wires on those lines.

On May 18th, I find that Mr. Vernon Mitchell flew to

the scene, climbed from the elevation which he was at as he

passed over the Wallace field on his northerly trip, and

proceeded to the north of the power lines where he com-

menced a tight left-hand turn preparatory to making his

first pass to spray the field from the north to the south. I

find that it was his intent to spray only from the north to

the south coming down over the power lines on his south-

erly run and spraying and then coming back up over the

power lines without spraying for another pass.

|

B-4

I find that the location of this power line as it crosses

this valley from the mountains on each side is, in fact, in

the flyway. Pilots don’t fly flyways as if you were driving

down the center line of a highway. There is no requirement

that the pilot stay within any specified corridor of the fly-

way. The flyway in this case is in the direct course from

what is obviously the location of the OMNI, being the nav-

igational device located in Ellensburg and that located on

the west side of the mountains in the Seattle area.

I find that this is a heavily travelled valley by aircraft

travelling between Yakima and Ellensburg, and even in

some instances, the Spokane to Seattle route. I find it was

heavily travelled by aircraft, including general aviation air-

craft flying under general flight rules at the time that the

towers were built by the Bonneville Power Administration.

I find that, going back to the day in question, Mr.

Mitchell passed over the top of the ground wires in his

northerly pass; that he then made his turn, and that for

the reasons stated, he either did not see or because of the

conditions that I have previously mentioned, lost sight of

or was unable to pick up the ground wires as he proceeded

south after completing his turn.

I find that there was no pilot error in his turn. I find

that the airplane did not stall. I find that the wobbling of

the wings as observed by the two teachers who testified

who were on the river was, in fact, caused by the Ag-Cat

aircraft striking the ground wires.

I find then that upon the aircraft striking the ground

wires either through the loss of power as a result of hitting

those ground wires, or the change of attitude of the air-

craft, the aircraft was pulled down into the transmission

lines and specifically the transmission line broke as a

result of which then the plane descended nose first and

crashed resulting in the death of Mr. Mitchell.

The ultimate question, of course, is whether or not

there was negligence on the part of Bonneville Power Ad-

ministration in failing to mark the line.

Because of the location of this valley and the location

of the lines, I find that the government, Bonneville Power

Administration, was negligent in its failure to install warn-

ing markers to warn pilots of the existence of the ground

B-5

wires some 300 to 400 feet above the valley floor and some

135 feet above the bundles of the large conductors which

were clearly visible and would be clearly visible to pilots.

I have previously found that the ground wire is ex-

tremely difficult to see and can easily be lost sight of par-

ticularly in the circumstances such as this where Mr.

Mitchell made a turn and proceeded in a southerly direc-

tion and would be looking at the ground wires and looking

down toward the ground wires and those large conductors

into which the ground wire would blend.

I further find that a pilot could easily be misled by

the fact that only the Grand Coulee-Raver Line had goats

peaks. In looking at these towers, the numerous towers, the

only tower with goats peaks which would forewarn an ex-

perienced pilot such as Mr. Mitchell of the existence of a

ground wire is the Grand Coulee-Raver Towers.

I find that the Bonneville Power Administration was

further negligent in blindly relying upon the advice of the

Federal Aviation Administration as to whether or not the

line should be marked without making any independent

investigation or inquiry itself or seeking comments specifi-

cally from pilots or pilot organizations as to these power

lines which cross this heavily travelled area with the very

hard to see ground wires 135 or 140 feet above the clearly

seen transmission conductors.

It is clear the Federal Aviation Administration’s

action is advisory only and Bonneville Power Administra-

tion knew it was advisory only. Bonneville Power Adminis-

tration’s so-called policy at that time recognized that this

was advisory only in that the policy was that at a minimum

the Bonneville Power Administration would follow the rec-

ommendations of the Federal Aviation Administration as

to marking. The fact that the Federal Aviation Adminis-

tration did not make a recommendation as to marking did

not abrogate the responsibility of Bonneville Power Ad-

ministration to make its own analysis, an analysis that I

find they did not make as to the hazard which I find was

created by these ground wires.

I find, in fact, that this was a trap for a pilot. A pilot

flying from the north to the south in this area would

clearly see these large transmission lines in the bundles,

Pe

B-6 |

da Pent

and then 135 or 140 feet above those lines is the snare, to-

wit, a very small in diameter wire of a color that blends in

with the environment and blends in with these large trans-

mission lines.

I find that while the FAA minimum height of VFR

flight is 500 feet above ground level, many pilots for vari-

ous reasons either choose or are required to fly below 500

feet in this area due to weather. I accept Mr. Stitt’s testi-

mony in that regard that it is common for VFR pilots tra-

versing an area such as this to fly below 500 feet due to

weather. I find that pilots in this area would be flying be-

low 500 feet for purposes such as inspecting other power

lines, for possible emergency landings, or for agricultural

spraying, which, as I have found, is common in this area.

Clearly, Mr. Mitchell was not in violation of any FAA

regulation in being below 500 feet since the regulations

allow lower altitudes in connection with agricultural spray-

ing.

I find that Bonneville Power Administration had a

duty to warn of this trap, to warn of this hazardous condi-

tion by marking the ground wires. This could have been

easily done with minimal expense at the time of the con-

struction of the line, at the time of the installation of the

ground wires. Expense certainly should not have been a

consideration by the Bonneville Power Administration in

making the decision as to whether or not to install the

marker balls when they erected that ground wire.

Once again, I find that the cost would have been mini-

mal to install marker balls. As was pointed out by Mr.

Gonzalez’ testimony, the installation of the marker balls is

hazardous work, but evidently is done on lines that have

already been installed and balls could have been installed

by Bonneville Power Administration through the use of

four men for two days in the area in question even after the

transmission line and ground wires had been erected.

I find that the failure of the Bonneville Power Admin-

istration to place warning markers on the ground wires

constituted a failure on the part of Bonneville Power Ad-

ministration to exercise reasonable care to avoid unreason-

able risk or harm to low flying aircraft, and in that regard,

Bonneville Power Administration was negligent.

B-7

I further find that it was completely foreseeable that a

low flying pilot, particularly flying from the north to the

south, would not see the ground wires, or if he saw them,

then it was foreseeable due to their very small size and

color and the environment in the area to iose sight of these

ground wires.

I find that Bonneville Power Administration’s negli-

gence was a proximate cause of Mr. Mitchell’s aircraft

striking the ground wires. But for the failure of Bonneviile

Power Administration to mark the ground wires, Mr.

Mitchell would not have struck them.

Once again, I find that Bonneville Power Administra-

tion made no independent inquiry or investigation as to

the risk or hazard to aviation created by the unmarked

ground wires other than the mere submittal, the form sub-

mittal to the FAA, who based upon the fact that the wires

did not reach into the 500 plus foot air space, did not ad-

vise the installation of markers.

I find that Bonneville Power Administration disre-

garded its responsibility to pilots traversing this area. This

finding of negligence on the part of Bonneville Power Ad-

ministration does not require it to mark all of its lines. It

does, however, impose a responsibility on Bonneville

Power Administration at the time of the installation or

even subsequent thereto to investigate thoroughly the con-

ditions which exist along its lines to determine whether or

not there are conditions such as those herein existing as

would mandate the installation of warning devices.

Once again, in this case we do not have the mere ex-

istence of a Bonneville Power line running across level

land. We have a 2,600 foot clear span between towers

crossing a populated agricultural area closely associated

with the Ellensburg area, and I do note also from Exhibit

No. 4 that there are two landing fileds also located in the

Cle Elum area, which is reasonably close to the accident

site, although I do not find that the existence of those

airports in and of themselves mandated the marking of the

transmission lines.

I further find that Mr. Mitchell himself was contribu-

torily negligent. Despite the circumstances which existed,

which, as I say, appeared to me to be a trap to a pilot

B-8

because of the blending of the ground wires with the trans-

mission wires, with the sky, with the environment of the

area, despite that, the existence of the goats peak on the

Grand Coulee-Raver towers would alert a reasonably care-

ful pilot to the existence of ground wires.

Obviously, if Mr. Mitchell would have been able to

follow the ground wires or if he saw the ground wires he

would not have flown his aircraft into them. Exercising the

care which a spray pilot should have exercised, Mr. Mitch-

ell should have determined the altitude of these ground

wires which he should have remained above in order to

have been clear of the ground wires. That could have been

accomplished by his flying over the goats peak on each side

of this valley and determining altitude from his altimeter.

However, I find that the negligence of Mr. Mitchell was

not equal to that of Bonneville Power Administration.

I do agree with Mr. Jones and the suggestion that Mr.

Jones makes that it may well have been that Mr. Mitchell,

who was aware of Mount St. Helens’ cloud a substantial

distance to the southwest, that that may have caused him

not to exercise that degree of care that he ordinarily would

have exercised.

I find that Mr. Mitchell’s comparative negligence was

twenty-five percent of the total; the comparative negli-

gence of Bonneville Power Administration failing to mark

the wires would, therefore, be seventy-five percent.

With regard to the loss sustained by the Mitchell es-

tate, I would like to make the following findings, and,

counsel, rather than having myself attempt to compute

these out, if you would have your economists compute it

out, and I’m sure by my giving you this formula they can

and these findings which I will make, they can then com-

pute it out. I have other things to do then try to compute

the discount rates.

First, with regard to Mr. Mitchell’s earnings, I find

the more credible base salary testimony to be that of Dr.

Barnes. I feel that the testimony of Dr. Barnes as to the

salary which Mr. Mitchell would have earned from 1980

through 1984 based upon his 1979 income is the better

reasoned analysis, that being the 1979 income of $23,800.

I find that Mr. Mitchell’s income of $23,800 would

B-9

have increased at eight percent per year from 1979 through

1984, and if you would have your accountants compute,

therefore, the past earnings.

The medical benefits are as agreed to by the two ex-

perts. I find the home service testimony of Dr. Franz to be

more credible, that loss being the $13,500.

With regard to future earnings, I find that Mr. Mitch-

ell would have worked full-time to age 65. I find that he

would have worked half-time from age 65 to 70.

I find that the formula used by Dr. Franz is the ap-

propriate formula as to future earnings, subject, however,

to the salary base being that which I have set forth, to-wit,

the $23,800 in 1979. I think that where we have an earn-

ings record of an individual that it is appropriate to use

that rather than what some others may be earning in other

areas of the industry.

I find that the income of Mr. Mitchell would have

increased at five percent per year commencing with Janu-

ary 1, 1985, and would have continued at that increase

until he reached 65 with commensurate increase to age 70

provided he would have only worked half-time.

I find that Dr. Franz’ formula as to discount and the

income tax treatment is the appropriate formula to be uti-

lized.

With regard to the consumption rate, Dr. Franz used

a thirty percent consumption rate, as I recall, and Dr.

Barnes used a forty-two percent rate. Dr. Barnes did not

have the benefit of talking to the Mitchells as such. Dr.

Barnes acknowledged that the consumption by the dece-

dent, of course, depends to some extent upon his life style.

I find that the appropriate consumption rate in this

case is thirty-three and one third percent, or one-third.

That would appear to me to result in a present economic

loss in the area of $250,000 to $300,000, although that wiil,

of course, depend upon the actual calculations.

Now, before I talk about Mrs. Mitchell’s claim, I am

satisfied that despite Justice Frankfurter, I was correct in

my analysis on ruling on the Motion for Summary Judg-

ment. I am unable to find that the so-called policy of Bon-

neville Power Administration was that type of action as to

constitute a discretionary act, which would exempt this

B-10

claim from the Federal Tort Claims Act for the reasons I

have set forth in my memorandum opinion denying the

government’s motion to dismiss based upon the discretion-

ary function exemption claim.

I will look at the authority, although it would seem to

be clear, that Mrs. Mitchell’s claim for loss of society, com-

panionship, consortium is not to be reduced by the negli-

gence of twenty-five percent which I have found by Mr.

Mitchell.

The government’s counterclaim likewise will be al-

lowed based upon a percentage of comparative negligence

that I have set forth, to-wit, the government’s claim of

some $23,000, whatever the stipulated figure was, for re-

pair of the cut transmission line.

I think we all agree that it is an extremely difficult

task to ask any trier of the fact, whether it be a judge or

jury, to set the value of the loss of a spouse. No monetary

award will return Mr. Mitchell to Mrs. Mitchell’s life. I

agree that she has done well considering the fact that this

was a close marriage. As I listened to her the thought came

to me that Mr. and Mrs. Mitchell had the type of marriage

and did the things together that good marriages are made

of. They worked together, socialized together, attended

church together, and raised obviously six fine children to-

gether.

We must accept things as they are now. However, I do

find that the appropriate award for the loss of society and

companionship to Mrs. Mitchell is the sum of $90,000.

Those, of course, are the oral findings of the court. If

counsel wish to submit comments on those findings or re-

quest me to make additional findings if you feel it’s appro-

priate, please feel free to do that. I would like to have those

within ten days. I would like to have this matter resolved

and in final form by the 20th of January. I would like to

have your comments, as I say, within ten days.

I am going to be serving out of the district quite a bit.

I will be out three weeks in February and two or three

weeks trying a case out of the district in March, so I would

like to have this all resolved, if at all possible, before then.

I will be back from the February assignment on February

the 25th, and I will be here until March the 9th or so. If

B-11

there are motions that you wish to file, we could note them

during that two-week period.

I would suggest, counsel, that if plaintiff seeks the

award of any interest that isn’t computed in on past earn-

ings or any other portion of the award and likewise Bon-

neville on its claim, that you submit that in your

memorandum to me.

Do you have any specific additional findings in mind

at this time, Mr. Dano?

MR. DANO: I don’t think so, your Honor. I think you

covered everything.

THE COURT: Mr. Lamp?

MR. LAMP: I have nothing, your Honor. Would it be

possible, your Honor, to type up that portion of your deci-

sion on the computations so that we could hand that to our

experts?

THE COURT: It may be that you would want the

entire opinion, I assume, anyway.

MR. DANO: Yes, sir. I would like to have it, your

Honor.

THE COURT: Do you feel I left out any factual find-

ings that needed to be made as far as the economic loss?

MR. LAMP: My only concern, and this is just a ques-

tion, your Honor, is you adopted Dr. Franz’ formula. His

formula had specific numerical values in there, and I take

it if they are different then the ones you’ve found—

THE COURT: Yes. I just adopted his formula that he

used utilizing then the inflation as far as increased wages

and the discount rates that I have found and the wage

scale which I have found Mr. Mitchell would have earned.