David Wallace, an individual v. United States of America Department of Transportation

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID WALLACE, an individual; KRIS
WALLACE, an individual; CONCRETE
PAVING CONTRACTORS INC., a
California corporation,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA
DEPARTMENT OF
TRANSPORTATION; FEDERAL
AVIATION ADMINISTRATION;
ROBINSON HELICOPTER COMPANY
INC., a California corporation; FRANK
ROBINSON, an individual; JOAN
MORTON, an individual, AKA Ingrid J.
Morton,
Defendants - Appellees.
No. 08-56086
D.C. No. 5:07-cv-01529-VAP-OP
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
FILED
NOV 13 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
2
Submitted November 4, 2009 **
Pasadena, California
Before: SCHROEDER, BERZON and IKUTA, Circuit Judges.
David Wallace was a passenger in a helicopter owned by the corporation of
which he is the president, Concrete Paving Contractors (“Concrete Paving”), and
manufactured by Robinson Helicopter Company (“Robinson”), when it crashed in
May 2005. The helicopter caught fire after impact, and Wallace was badly burned.
Wallace brought suit against Robinson and the United States Department of
Transportation under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b),
on behalf of himself, Concrete Paving, and his wife (all hereafter “Wallace”).
Wallace alleges that the helicopter’s fuel system was not “crashworthy” as required
by 14 C.F.R. § 27.952 and that the Federal Aviation Administration (“FAA”) was
negligent both in permitting Robinson to manufacture unsafe helicopters prior to
the implementation of § 27.952 and in failing to revoke such certificates after the
implementation of that regulation. Wallace also alleges that the FAA was
negligent in designating Ingrid Morton, a Robinson employee, as a Designated
Manufacturing Inspection Representative (“DMIR”).

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The district court found that the claims fell within the discretionary function
exception of the FTCA, 28 U.S.C. § 2680, and that the court therefore lacked
subject matter jurisdiction. As Wallace has failed to identify any mandatory
regulation violated by the FAA, his allegations are clearly controlled by our cases
holding that FAA decisions pertaining to aircraft certification fall within the
discretionary function exception. We affirm.
We review de novo the district court’s decision to dismiss for lack of subject
matter jurisdiction under the discretionary function exception. Terbush v. United
States, 516 F.3d 1125, 1128 (9th Cir. 2008). In determining whether a claim
otherwise permissible under the FTCA is precluded by the discretionary function
exception, we first consider whether the act in question “involv[es] an element of
judgment or choice,” and if so, “whether that judgment is of the kind that the
discretionary function exception was designed to shield.” United States v.
Gaubert, 499 U.S. 315, 322–23 (1990) (quoting Berkovitz v. United States, 486
U.S. 531, 536 (1988)). To survive a motion to dismiss, a complaint “must allege
facts which would support a finding that the challenged actions are not the kind of
conduct that can be said to be grounded in the policy of the regulatory regime.” Id.
at 324–25.

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In United States v. S.A, Empresa de Viacao Aerea Rio Grandense (Varig
Airlines), 467 U.S. 797 (1984), the Supreme Court held that the discretionary
function exception shielded the FAA from liability for its allegedly negligent
failure to inspect unsafe components of aircraft before issuing type certificates.
“When an agency determines the extent to which it will supervise the safety
procedures of private individuals, it is exercising discretionary regulatory of the
most basic kind.” Id. at 819–20. Therefore, both the decision to implement a
“spot-check” inspection system and the application of “spot-checking” to the
aircraft in question were immune from liability under the FTCA. Id. at 819. Our
circuit has followed Varig in cases alleging negligence in the aircraft certification
process. See GATX/Airlog Co. v. United States, 286 F.3d 1168 (9th Cir. 2002)
(holding that the FAA’s methodology for issuing a supplemental type certificate
fell within the discretionary function exception); Proctor v. United States, 781 F.2d
752 (9th Cir. 1986) (holding that Varig precluded claims of FAA negligence in
inspecting specific parts of an aircraft); Natural Gas Pipeline Co. v. United States,
742 F.2d 502 (9th Cir. 1984) (“Appellants’ challenge to the FAA’s execution of its
responsibility by failing to discover the defects sooner and failing to adequately
monitor the [manufacturer’s] operation is barred by the discretionary function
exception.”).

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Wallace’s claims are indistinguishable from those we have held to fall
within the discretionary function exception. In essence, he challenges the FAA’s
decision to certify an aircraft that included an unsafe fuel system. We have held,
however, that “[a]lthough Varig involved an alleged negligent failure to inspect,
the Supreme Court wrote broadly in concluding that the discretionary function
exception precludes a tort action based on the conduct of the FAA in
certificating . . . aircraft.” GATX/Airlog, 286 F.3d at 1176 (internal citations
omitted).
Wallace contends that 14 C.F.R. § 27.952, which requires helicopters to be
built with crashworthy fuel systems, imposes a duty of enforcement on the FAA.
This argument lacks merit. First, Wallace concedes that Robinson applied for and
received a type certificate before § 27.952 had become final. Moreover, even if §
27.952 had been in effect, it is not a “specific and mandatory regulation . . . which
creates clear duties incumbent upon . . . government actors,” as is required before
we will conclude that a regulation renders a government act nondiscretionary.
GATX/Airlog, 286 F.3d at 1177. Rather, § 27.952 imposes a duty on aircraft
manufacturers. See Varig. 467 U.S. at 816 (“[T]he duty to ensure that an aircraft
conforms to FAA safety regulations lies with the manufacturer, while the FAA
retains the responsibility for policing compliance.”). Finally, Wallace has pointed

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to no regulation that would require the FAA to decertify the aircraft after the
implementation of § 27.952.
Wallace’s claim that the FAA was negligent in failing to ensure that Ingrid
Morton, a Robinson employee, was qualified to serve as a DMIR also fails.
Wallace acknowledges “the FAA’s discretionary authority to designate Morton as
a DMIR.” Reframing the allegation as one related to failing to gather “the
necessary background on Morton” does not remove this claim from the
discretionary function exemption. Cf. Berkovitz, 486 U.S. at 542–43. The
designation of DMIRs, like the certification of pilots addressed by this court in
Roundtree, is a “method of assuring that the federal aviation regulations will be
followed,” and thus an “inherently policy-oriented decision that requires
consideration of social and economic policies.” Roundtree v. United States, 40
F.3d 1036, 1039 (9th Cir. 1994) (internal quotation omitted).
The district court thus properly dismissed Wallace’s claims, and did not
abuse its discretion in denying leave to amend. See Allen v. Beverly Hills, 911
F.2d 367, 373–74 (9th Cir. 1990).
AFFIRMED.

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