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The Federal Aviation Act of 1958 directs the Secretary of Transportation to "promote the safety of civil aircraft" by establishing minimum standards of airworthiness. Pursuant to this directive, the Federal Aviation Administration (FAA), acting as the Secretary's designee, instituted a certification process for the design and manufacture of all private aircraft. Under FAA rules, manufacturers are required to develop the plans and specifications and perform the inspections and tests necessary to establish that an aircraft design comports with the regulations. FAA engineers then conduct "spot-check" inspections of the manufacturer's work. This case arose out of two separate accidents in which commercial aircraft, certified by the FAA or its predecessor, caught fire mid-air, resulting in the deaths of most of the people on board one plane and all of the people on board the other. Each accident was found to have been caused by a faulty part a trash receptacle in one case; a gas burning cabin heater in the other which did not comply with FAA regulations. In both cases, plaintiffs sued the U.S. under the Federal Tort Claims Act (FTCA) on the ground that the FAA or its predecessor negligently issued certificates for the respective aircraft. The district court in the first case granted summary judgment on the ground, inter alia, that recovery against the U.S. was barred by 28 U.S.C. Section 2680(a), which provides a discretionary function exception to the FTCA. The Ninth Circuit reversed, holding that the discretionary function exception did not apply, and that the U.S., just as a private party, could be held liable for negligent inspection under the California "Good Samaritan" rule. In the other case, the district court entered judgment for plaintiffs under the California "Good Samaritan" rule, and the Ninth Circuit affirmed.

Can the U.S. be held liable under the FTCA for the FAA's decision to use the "spot-check" program to monitor compliance with airworthiness certification standards?

No. Government liability under the FTCA is limited by the discretionary function exception of 28 U.S.C. Section 2680(a), which provides that the federal government may not be held liable for "[a]ny claim based upon an act or omission of an employee of the Government . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function . . . whether or not the discretion involved be abused." The FAA's decision to institute the "spot-check" program to monitor compliance with its minimum safety standards was clearly discretionary and protected by Section 2680(a). It was a calculated decision which took into account the objectives of the certification process in light of practical considerations such as funding and staffing. Judicial intervention in such a decision would be precisely what the discretionary function exception was designed to prevent.