*1 nied, 1251, U.S. S.Ct. L.Ed.2d (1972). We have concluded that substantial,

claim is not since a similar alle-

gation of unconstitutionally coerced waiv- merely right

er —not to trial before right Article III but of judge, rejected

trial at all—has been even when

sentencing year well in of one excess Carolina,

involved. Parker v. North

397 U.S. 90 S.Ct. 25 L.Ed.2d 785

(1969). above,

For the uphold reasons stated imposed appellants sentences Donel-

son and Washington by the District Court.

Affirmed. BEINS, Appellant,

D. Ross

UNITED STATES America.

No. 81-1978. Appeals,

United States Court

District of Columbia Circuit.

Argued June

Decided Dec.

593 *3 Smith, Francisco, Cal.,

Daniel U. San for appellant. Polk, Lamberth, Royce

John W. C. Asst. D.C., Attys., Washington, U.S. were on the Harris, appellee. Stanley brief for S. U.S. D.C., Atty., Washington, entered an appear- ance for appellee. ROBINSON, Judge,

Before Chief LU SWYGERT,* THER M. Senior Circuit Judge, United States of Appeals Court for Circuit, WALD, the Seventh Circuit Judge.

Opinion for the Court filed by Circuit Judge WALD.

Concurring Opinion by Judge filed Chief ROBINSON, W. SPOTTSWOOD III. WALD, Judge: Circuit Beins, plaintiff-appellant, ap- D. Ross peals of the district court for government under the Federal Tort (FTCA).1 Act Claims We find the district court with exception applied one the proper law, finding did not err in its of no negli- gence, and did not commit reversible error by limiting expert testimony; witness’ accordingly, affirm. Background

I. Factual This case involves the Federal Aviation (FAA) pilot, Administration’s denial to a separate occasions, five of an airman medi- certificate, cal which he needed to resume his career as a pilot.2 commercial airline * Sitting by designation pursuant largely 28 U.S.C. is Our recitation of facts drawn 294(d). opinion. § the district court’s memorandum (D.D.C. Beins v. United No. 79-3322 5, 1981), Aug. reprinted Appendix (App.) 1346(b), seq. 28 U.S.C. 2671 et §§ Opinion], cited as District Court [hereinafter 67.- Surgeon reconsideration. Id. § Air for Proce- A. Certification FAA Medical often send an Surgeon The Air will 27(a). dures expert prior consultants file to applicant’s FAA certifi- understanding Some by the decision. A denial making final ap- follow necessary to is procedures cation certain other FAA offi- Surgeon Air proc- through application

pellant’s path the Adminis- considered denial cials is Federal Aviation Act directs ess.3 The trator, 67.27(b), appealable is id. § investigate FAA to Administrator of the Safety Board Transportation the National “possesses he insure that each airman to 1422(b). (NTSB), 49 § U.S.C. for, physically is proper qualifications to, the pertaining duties perform able to fails meet the medi- who applicant An airman certificate for which the position petition the may cal standards 1422(b). carrying sought.” U.S.C. C.F.R. issue” certificate. “special requires a duty, out the Administrator cases, *4 (1982). regula- these In 67.19 § a medical certificate as pilot obtain a to to discretion Surgeon the Air give tions an airman’s to the issuance of condition to test, or evaluation special flight, a offer (which aviation also certifies certificate perform can the airman determine whether delegated, has The skills). Administrator in air endangering safety his without duties 1344(d), statutory 49 to pursuant § U.S.C. petition for a acting In on a commerce. to certification authority pertaining medical certificate, Surgeon the Air issue” “special Surgeon. to Federal Air C.F.R. panel of a on the recommendation relies (1982). 67.25 § specialists. At time consultant medical case, special the events in this issue in certificates medical The FAA issues procedures applicable pilots, were not co- Regu- Aviation The Federal three classes. flight engineers pilots or who suffered medical stan- forth in detail the lations set disqualifying conditions. 67.- nine § each class certificate. See dards for 19(d). neurological Certain problems were .15, (1982). captain A 67.13, .17 C.F.R. §§ a disqualifying, but failure to meet a have first- aircraft must of a commercial specific neurological by standards cited certificate, copilot a or medical class Surgeon the Air in his appel- denials of least a second- must have at flight engineer applications, lant’s see 67.13(d)(2)(H), id. §§ 61.3(a), id. certificate. See §§ class .15(d)(2)(H),(cid:127)17(d)(2)(H), Appellant was not. .171, 63.3(a), .139, .151(e), .23, .123(c), .3(c), vision, does not have normal fields of also medical certif- 121.437(a)-(b). A third-class for or required which are a first second- a fly only as allow an airman to icate will certificate, class but which have not been an 61.103(c). id. private pilot. § See prerequisite authorization under absolute cases, a applicant for medical In most special procedure.4 issue with an begins process certificate exam- Appellant's Applications B. for Medical private a who has been by physician ination Certification to serve as designated by Beins, began Ross Appellant, flying D. (AME). an medical examiner aviation He Air December 1966. for United Lines the appli- id. The AME examines 67.23. § airman medical certificate held first-class history medical his current condi- cant’s 29, 1971. through April When from he meets the tion to determine whether for time a first- appellant reapplied regula- set forth in the medical standards certificate, the FAA declined to act class certificate If the denies the tions. AME hospitalization could his on thirty petition until it evaluate applicant days has resort, applicant disquali- Lines, a last an As Inc. v. Delta (N.D.Ga.1980), F.Supp. fying ask Administrator an condition could contains exten- regulation. exempt him Adminis- from both the FAA’s certi- sive discussion of may grant exemption any rule process background trator and the of its fication regulation he such action pilots. “if finds that medical standards public 49 U.S.C. would be interest.” 1421(c). 8, 1970, May appeared for what to have area. Dr. Winston perform Since did not generalized been a seizure. brain, surgery in other regions of the he neither deny could confirm nor the exist- involved in Physicians ease— ence other vascular malformations. then disagreed and since—have about the summary diagnosis, however, Dr. Win- incident, cause of precise the 1970 these ston mentioned a possible left mi- frontal a critical played differences have role croangioma (a small tumor composed chief- conflicting their views on both appellant’s ly vessels) of blood suspect right and a hemorrhage later in 1974 and his overall parietal wall) (upper posterior microangio- pilot. Appellant fitness to be a was taken surgery, ma. After appellant only had hospital early morning May percent fifty right field of vision on his 8, 1970, wife, noticing after his that he was This improved side. in the following perspiring heavily shivering, was un- months, by until June 1975 his loss was able wake Appellant him. remained in twenty-five percent. to thirty His condi- hospital days. for five The examining appears tion to have stabilized at point. neurologist having described treating tonic-clonic contraction. The phy- 11, 1975, On November appellant applied appellant’s discharge sician wrote in sum- to an AME for a first-class airman medical mary patient “syn- had suffered a certificate. AME, After denial ap- copal episode of excessive muscle contrac- pellant requested reconsideration tions; amnesia; breathing; stridulous etiol- Surgeon. Federal Air Appellant gave the *5 Beins v. United ogy undetermined.” hospital FAA the relating records to the 5, (D.D.C. 1981) No. Aug. 1974, surgery in of documentation 2, reprinted op. Appendix mem. (App.) improvement vision, of field and 1, as District cited Court [hereinafter authorization forms for the release other of Opinion]. appellant’s information. Prior on acting Nonetheless, 15, 1971, on October after application, Air Surgeon sought incident, evaluating the FAA is- opinion Hunter, of Dr. a neurosurgeon Sam appellant sued a first-class medical certifi- and an FAA consultant. Dr. rec- Hunter cate operational restrictions. On Octo- 25, 1976, ommended denial. On March 5, 1972, ber granted appellant FAA Surgeon Air denied appellant’s application. unlimited first-class medical certificate. Surgeon’s The appellant Air letter to ex- The FAA renewed the unlimited certificate plained that ap- decision was based on for 1973 and 1974. pellant’s intracranial hemorrhage and sur- defect, a gery, which resulted in visual field 19,1974, appellant On November suffered appellant’s and current of use anticonvul- spontaneous hemorrhage. a intracerebral sant medicine. Appellant did not appeal major The symptom appellant’s of hemor- Surgeon’s the Air denial to the NTSB. rhage right was loss of his entire of field vision in eyes. Appellant’s physicians both- 30, 1976, August On appellant applied promptly placed hospital him in a ad- and again certificate, for an airman medical but (an arteriogram X-ray photo- ministered an this sought only rating. time he a third-class arteries). of graph arteriogram The Surgeon The Air once more consulted Dr. showed one vascular in the malformation Hunter, who again recommended denial. brain, left suggested rear of anoth- 10, 1977, On March the Air Surgeon denied er smaller one in the left region. front appellant’s application “(1) because: he had had hemorrhage requiring

Dr. an intracerebral performed craniotomy S.R. Winston a defect; surgery; (2) he had a appellant. on He a clot visual field removed blood that (3) was there was a continued risk of post-opera- about two and a half inches inside the seizures; occipital (located (4) diagnostic lobe tive re- in the left rear of the studies brain). Dr. Winston took the presence also out a smaller vealed of other vascular mal- (a swelling formations, subdural hematoma containing presenting the risk of further surface) blood close to the brain in the bleeding episodes.” Opinion same Court District a pattern of both be denied because appeal not again did Appellant at 4. in his surgical scar EEG’s and abnormal decision to the NTSB. the scar believed that brain. Dr. Stevens 20,1977, appellant petitioned On June epileptogenic focus potential was a neurological a exemption FAA for an from July a risk of seizure. On presented 67.17(d)(2)(ii) 14 C.F.R. requirement, denied this fourth Surgeon the Air a third-class (1982), and for issuance request for certification. The Air Sur- The Air airman medical certificate. Sur- disor- geon’s appellant’s denial cited seizure to Dr. appellant’s file Thomas geon referred hemor- der 1970 and the scar Auth, FAA consultant. neurologist and an Air surgery in 1974. The Sur- rhage appellant Auth should Dr. concluded manipula- that the scar and the geon stated a persist- not be certified for four reasons: the probability tion the brain enhanced (EEG) electroencephalogram abnormali- ing ap- Appellant seizures. did of future lobe; temporal risk of sei- ty in left peal the NTSB. rebleed; zures; the visual field risk of application Appellant made his final Surgeon Air then forwarded defect. The certificate Surgeon first-class panel to a and file appellant’s petition 21, 1978, within two months August on also recommended panel consultants. The Air denied Surgeon denial. The fourth certification, August and on against The request September denied Air he the same two reasons Surgeon noted did exemption. Appellant request for an denial, and added previous had given appeal NTSB. to have a visual appellant continued underwent appellant December field defect. examination, includ- physical an extensive denial appealed this fifth Appellant arteriogram and CAT ing second Scan. 19, 1980, after a February On NTSB. arteriogram normal. The CAT Judge the Administrative Law hearing, atrophy area revealed an where Scan met had his burden found Dr. Benjamin blood clot had been removed. safety he met the standards proving that *6 Boshes, examining neurologist the selected for certification. He concluded: third-class tests oth- by appellant, reviewed these and may entirely not be be- “Though Petitioner appellant ers and concluded that was sei- yond the realm of some risk of future Dr. Boshes be- qualified for certification. history, his activity, zure view of medical on ongoing spiking activity lieved that the subsequent his and the absence age, [of] period years the EEG’s over a of seven dura- activity and the relevant time seizure a risk of seizure. indicated thereof, judgment tion here that is the Defendant’s Exhibit such risk is minimal.” April appellant again On once No. 83-84. 1 at requested a first-class certificate. The Stevens, a Surgeon consulted Dr. Harold appealed the Administrative The FAA neurologist is board-certified in elec- who After a Judge’s Law decision to the NTSB. reviewed troencephalography. Dr. Stevens novo, the de the NTSB affirmed hearing Scan, report the 1977 CAT December 17, 1980.5 On decision on October initial EEG’s, and the reports various made a the Air January pertaining medical to 1970 and records a second-class certificate special issuance of re- Dr. Stevens concluded that him to appellant, thereby permitting incidents. to pilot. for sume work as a commercial appellant’s request certification should petitioner’s hem- 1974 subarachnoid cause of 5. The NTSB concluded: by adequately explored orrhage has been sum, that In the Board the rec- concludes neurologists and a neurosur- Board-certified finding supports ord that 1970 event thereby reducing geon of a the likelihood poisoning caused insecticide and rebleed; petitioner’s disorder; defect and that visual petitioner not have a seizure does proceeding. Plaintiff’s issue in this that the risk of a future subarachnoid hemor- rhage acceptable Exhibit No. at 14. for is within limits a third- certificate; class airman Appellant damages filed this for courts of appeals jurisdiction action have exclusive 7,1979, under the FTCA on December after under the Federal Aviation Act to review his Law hearing before Administrative orders of the FAA. U.S.C. Judge, but before the Law Administrative 1486(a). appellee § contends that since Judge appel- reversed the FAA’s denial of delegated part Administrator has of his petition Appellant lant’s for certification. statutory authority respect to airman alleged negligently FAA had de- certification to Air Surgeon, 14 C.F.R. nied him airman medical certificates on five (1982), 67.25 Surgeon’s decisions occasions, thereby preventing him from not issue a certificate were working pilot. as a commercial airline only by orders reviewable the courts of particular, appellant claimed that the FAA appeals pursuant 1486(a).8 49 U.S.C. § negligently provide had failed adequate The government is concerned that appel- consultants, information to its and failed jurisdiction lant’s assertion of FTCA in dis- use analyze appropriate medical evi- trict permitted court him to secure a trial dence its own The govern- evaluations. de novo on the Air Surgeon’s determina- ment and later for moved dismiss moved Appellant’s judicial tions. exclusive reme- summary judgment ground on the of lack dy, government contends, is review on subject jurisdiction (1) matter because the record before the Air Surgeon to see if appeals juris- courts of have exclusive findings supported by substantial FAA, (2) diction review orders evidence. “discretionary claim was barred reject We the government’s contention exception function” to the These FTCA.6 subject no jurisdiction there is matter motions opinions. were denied without Af- under the FTCA in this case. On its face 15-17, ter a nonjury trial7 on June provides remedy FTCA negligent the district court issued memorandum government acts of employees; none opinion containing the court’s findings explicit exceptions several in the FTCA ex- fact and conclusions of law. The district empts negligent solely acts because the le- court concluded that “plaintiff has not gal proven negligence validity employee’s actions is proven has not case Act,” appealable under the grounds Federal Tort Claims on other to other ad- entered for the government. eventually ministrative bodies District Opinion through Court at 11-12. courts the Administrative Proce- (APA). See U.S.C. §§ 1346(b), dure Act

II. Jurisdiction and Exhaustion 2680. Nor fall judi- does case under a of Remedies cially exemption established such as one *7 The Court created in Feres v. government presses objec Supreme its appeal 135, tion on court lacked 153, that the district 340 U.S. 71 95 S.Ct. subject jurisdiction matter (1950).9 because the L.Ed. 152 we And can no find 2680(a). 6. 28 U.S.C. § the Board or Administrator under [the Federal Act], except respect Aviation order in of brought 7. Cases are under the FTCA tried to any foreign subject approval air carrier sitting jury. the court without id. See ..., subject of the President shall be to review 2402. § ” by appeals of courts ... . Under 49 1422(b), authority has government’s § U.S.C. NTSB also 8. The assertion that the Federal certificate, Surgeon’s to Air review the denial of an airman decision not to issue a medical by findings by and is certificate is an not bound of fact of the order reviewable the courts appeals appears supported by of 1903(a)(9). to be 14 § Administrator. See id. The 67.27(b)(2) (1982), § C.F.R. by which states that a subject NTSB’s order is to review the courts “[b]y denial of a medical certificate the Federal appeals. 1903(d). of See §id. by is considered be a denial to Administrator under U.S.C. of the [49 § 1422] Feres, Supreme 9. In held that “the Court Act.” The Administrator is authorized to issue is Government not liable under the Federal Tort deny by and airman 49 certificates U.S.C. injuries Act for Claims to servicemen where According 1486(a), § 1422. to 49 § U.S.C. “[a]ny order, negative, by or issued affirmative 598 68, (footnote at at 126 of 350 76 S.Ct. in the circumstances U.S.

compelling reason con- omitted). This extensive list reflects at this our own and forge, this case to on crafting by Congress in when care siderable date, exception provided late a new would available to a and how the FTCA argued by the along lines Congress claimant; statutory detailed given this stated Court government. Supreme As the scheme, jurisdic- to add a disinclined States, 350 Towing Co. v. United Indian in or, discussed'below, as an- exception tional 100 48 L.Ed. U.S. 76 S.Ct. prerequisite. exhaustion other product of (1955), “The was [FTCA] Moreover, appeal that an obvious consid- thirty congressional of nearly years any remedy provide APA under the will sub- and drawn with numerous eration was of the prime purpose while the damages, administrative limitations and stantive compensate negligent victims of FTCA is to specify went on to safeguards.” The Court addition, In an ad- government conduct.10 and safeguards: limitations these whether the appeal ministrative determines limitations, (For see substantive statutory of was in excess agency action safe- 2680(a)-(m). For administrative § authority, jurisdiction and without observ- 2401(b) (statute limita- guards, see of § law, contrary procedure required by ance of (denial jury); trial tions); 2402 of arbitrary right power, § constitutional and to of not in (administrative adjustment capricious, and otherwise accord- 2672 § 706; law, 5 these deter- ance with U.S.C. .); Congress) § (reports claims . . 2673 § conceptually are distinct minations (no liability for repealed]; 2674 § [later finding negligence, linchpin of the of punitive prior or for interest damages reasons, we find no bar FTCA. For these (disposition by 2675 federal judgment); § subject matter in this case.11 jurisdiction to suit when prerequisite as a agency filed); (compromise); claim is jurisdiction § of is not finding Our government’s (exclusiveness remedy).) necessarily the end of ar- of § Rochester, City appeal injuries In of course of of and the activity arise out or are FCC’s appeals incident to service.” U.S. the FAA’s orders to the court of would reviewing provided adequate at 159. S.Ct. have means of suit, allegations appellants’ in the court district 68-69, Towing, Indian U.S. at 10. 936, i.e., F.2d at that the FAA failed to see 603 126-127, where stated: S.Ct. the Court requirement, fulfill a notice violated Federal just purpose broad which the statute The and regulations, and to- Aviation Act certain designed compensate to effect was to was FCC, gether violated the National En- negligence victims conduct Policy But in this vironmental Act governmental like activities in circumstances appellate have case an review would not exam- person private unto those in which a would allegation negligence; ined it would just be liable and not to leave treatment FAA’s if it review the certification denial see caprice legislative individu- burden of arbitrary capricious, supported by private al laws. See 5 706. The substantial evidence. appellants U.S.C. heavily City government relies City sought a Rochester reme- Bond, (D.C.Cir.1979), Rochester 603 F.2d 927 dy, setting permits, aside the court authority proposition that for the the district appeals granted the APA. could have under jurisdiction subject court in this lacked matter Here, however, damage seeks City case. appellants, tower, of Rochester we decided remedy, he which could not have received after objected antenna who radio regardless an APA of the timeliness of review *8 to could not file suit in the district court City petition. Finally, we in his noted of a the set aside “no hazard” determination 931, Rochester, Congress is ordinar- F.2d permit the FAA and a construction issued statutory ily special assumed to intend review (FCC). Federal Communications Commission procedures to be means of obtain- the exclusive jur- Congress assigned We found that exclusive they ing judicial review for the cases to which and FAA isdiction to review orders of FCC here, apply. Congress specifically But estab- appeals. to 603 F.2d at 934- the courts of See provide plaintiff FTCA a distinguishable lished the to City from 37. of is Rochester damages negligent government monetary appeal for from FAA’s an case because have to review of action. order would not negligence led court, district nor before the issue damages. in award of could it have an resulted gument. government’s objections may any, application problem The here. And the of assailing also be appellant’s construed as see McKart v. United agencies, bypassing to failure exhaust his administrative reme- States, 185, 193-95, 1657, 395 U.S. S.Ct. initiating dies under the APA before suit 1662-63, (1969), 23 L.Ed.2d 194 is not Any appel- under the FTCA.12 failure on present because the claimant cannot receive appeals process lant’s part to exhaust through medical certification the FTCA ac- not, course, for FAA denials would tion. jurisdictional. necessarily be As we stated propriety any of imposing extra ex- in a case recently, Age under the Discrimi- haustion hurdle an claimant FTCA nation in Employment Act of placed in question by also the FTCA’s own 621-634, require- U.S.C. the “exhaustion §§ requirements. exhaustion The FTCA re- jurisdictional ments in nature but quires to notify claimants the appropriate statutory precedent rather are to conditions claims, agency federal of their and estab- Kennedy instigation litigation.” waiting lishes a six month period after no- Whitehurst, 961, slip 690 F.2d 951 at op. at tice, provide to the government time in (D.C.Cir.1982) (emphasis original). which make an to administrative determi- In this case cannot an find ex nation. 2675(a). Moreover, U.S.C. § requirement press in either statute or case year there is a two statute of limitations on appellant law that to appeal had claims under the FTCA. 2401(b). FAA’s denial of medical certification to the The delay by waiting necessitated for the NTSB before he his could initiate FTCA appeal outcome of an might NTSB action, why nor reason we should now place a tort action outside the FTCA’s own one. We a imply acknowledge that claim Indeed, filing deadline. in the one instance process per certification in this case appellant where avail did him- negligently might conceivably formed in self of process, proc- the administrative volve necessary issues similar to those months, years ess took two and four decide whether the certificate should have the FAA’s fifth on September denial addition, been denied. a successful ad 1978, to the Air Surgeon’s issuance of a ministrative appeal permit appel would on January second-class certificate 1981. lant to return to work and so limit the are, course, There ways which extent a damages. An administrative district court can an not, however, overlap- accommodate appeal could provide the dam ping FTCA claim an ages administrative remedy that seeks here. It appeal of a denial. certification If dis- question also would not address the of neg trict ligence court believes that appellant presses results an under the Therefore, appeal FTCA. adverse certification three of the standard decision important action, would requiring benefits exhaustion of FTCA adminis trative can permitting agency stay pending FTCA case out- remedies — decision, build a record on issue come. might for And the district court well apply expertise, its possibly avoid take into account a plaintiff’s failure to judicial through intervention a finding appeal for the denial the calculation of a award, i.e., limited, the complainant13 have damage if might the district court —would Appellant Surgeon’s Thus, appeal flying. minimum, did not mercial aat even un- requests first requirement, appellant may four denials of der an exhaustion denial, appellant damages twenty-eight certification. peri- After the fifth claim for the month NTSB, appealed granted exhausting which him od he was administrative remedies quick- (between third-class The FAA certificate. moved the FAA’s fifth denial and the Air ly, decision, appel- Surgeon’s determination). after the NTSB to reassess favorable qualifications, lant’s and the Air made special issuance of second-class certificate McKart v. 395 U.S. Appellant in about therefore 193-95, 1662-63, three months. 89 S.Ct. 23 L.Ed.2d 194 *9 judicial had no reason to seek review of the (1969) (discussing general purposes these three order, NTSB since he was able to resume com- doctrine). the for exhaustion 600 “operational” and salary “planning” lost between damages that for conclude States, See, 617 e.g., that Sami v. United the likelihood duties.

should take account of (D.C.Cir.1979) plaintiff (“operation- the could have received airman F.2d timely through appeal. exception even certificate earlier al” outside the duties they “inevitably require[ though ] short, of ex- requirement In an absolute however, discretion”). recognize, and We remedies, haustion APA administrative of “plan- like and “operational” labels suit, would be prior initiating FTCA Blessing ning” are elastic. v. United integrated statuto- at odds with the FTCA’s (E.D. States, F.Supp. 1173 n. 19 447 scheme, purposes the of ry would serve Pa.1978). ac- exhaustion because the administrative negligence on the tion would focus neither myriad cases One discernible theme damages remedy, could issue nor the and discretionary exception, the interpreting under altogether the FTCA action preclude however, government the re ] “hold[ limitations. In the own statute of FTCA’s any negligent for execution sponsible therefore, case, we find that judgments admittedly discretionary policy the first four denials of a appeal failures to for the execu required where the decisions the medical certificate do not affect district involve balanc tion not themselves did determine, nor au- authority court’s our Sami, ing 617 public policy factors.” review, of his thority to the merits FTCA Blessing, F.Supp. F.2d 447 at 766. See also action. (discussing listing n. 28 cases 1179 policy formulation execution involving Discretionary III. The Function regard activity). with to regulatory Exemption quoted a conclusion drawn Sami Blessing,14 argues also that the government The policy exception “ suit United is immune from because States was actions from be ‘prevent[ tort ] 2680(a), this case falls within 28 U.S.C. § judicial a vehicle coming for interference exception” “discretionary function is properly exer decisionmaking ” FTCA, which states: government,’ cised other branches of chapter exception applies only of this and sec- and that “ where provisions The 1346(b) apply question negligence tion of this title shall not ‘the is not but social wisdom, political practica to— not due care but bility, but ex not reasonableness economic upon (a) Any claim ... based simply Tort law an in pediency. furnishes performance or the failure exercise or adequate testing crucible merits of perform discretionary to exercise or ” social, political, or economic decisions.’ duty part or of a feder- function on 447 (quoting F.Supp. 617 F.2d at 766-67 employee al or an agency States, 1170). Accord Hitchcock v. United Government, not the whether or discre- (D.C.Cir.1981) (acts 665 F.2d be abused. tion involved discretionary omissions not because “little “discretionary exception” to The function policy public no involved the State been focus of much liti- the FTCA has Department’s failure to ensure that subject many opinions. gation and program inform Mrs. Hitchcock vaccine ... Supreme broad but Following the Court’s recommended, vaccine not re of the ex- opaque somewhat construction quired”). ception in Dalehite experi- have benefit of the (1953), L.Ed. 1427 We also U.S. S.Ct. own, which have grappled en- ence of other courts courts, our have many including applicability discretionary with the distinction apply guiding deavored myriad synthesizing Ioging their Blessing cases induced this conclu- court propositions discretionary analyses important survey into a few sion from an exhaustive exception. pages, Over the course function cases. F.Supp. provided yeoman’s at 1167-86. service cata- court

601 settings analogous exemption exists for FTCA exemption purposes. function First, States, one determines whether the com- Hendry case. In United this Cir.1969), plaint agen- assails a rule formulated an (2d the court F.2d cy only way ap- or the in which a rule is “hybrid it described as medi- faced what (cid:127) Second, plied. the court the The noted that Hendry cal-administrative decision.” higher place government the hier- discretionary court held that archy the person judgment whose is in preclude jurisdiction did over exception question, likely the more that the official’s negligent allegation psychiatric type decision involves the of discretion con- performed by examination employees Third, templated by exception. the FTCA’s Public Health led the U.S. Service Coast language regulation of the statute or suspend Guard to a Merchant Marine offi- may relevant, governing decision conclusion, reaching cer’s license. In this insofar as required indicates action is Hendry acknowledged court that “[n]o if certain set standards are only met or emerges very clear rule from either the instructs the decisionmaker to cer- balance licensing malpractice [discretionary general tain considerations. See 418 F.2d noted, Id. 782. It cases.” how- function] at 782-83. ever, basic distinction was evident enough: The courts will conclude a decision analysis Portions of the Hendry were discretionary grant where license used the district court Duncan v. requires an official to balance several fac- F.Supp. (D.D.C. upon tors any readily without reliance as- 1973). parallel The core facts Duncan rule, grant certainable and will find a to be plaintiff The case. in Duncan was a nondiscretionary when the task involves pilot sought damages commercial who un- matching against facts a clear standard. der the FTCA for alleged negligence continued, But in practice, the court failing the FAA in to reissue him an airman application slips of this distinction into an medical certificate.15 He had successfully difficulty NTSB, “intuitive as to the appealed the denial to the and had in- administrative medical decision flying been restored plain- status. The volved.” Id. The “a court warned that damages tiff claimed for the be- period distinction difficulty based on the solely tween the date he was denied the certifi- a decision would seem confuse the exist- cate after the FAA’s review of his medical ence of reports, discretion ... with the substantive and the date NTSB’s decision question lacking of whether due was ground upon care his favor.16 One which the demonstrably government and how lacking.” complaint it was moved to dismiss the It Id. feared that course such a would was that the FAA’s refusal to reissue a exemption broaden the too far to exclude medical certificate constituted the exercise all negligence but the clearest cases of of a function. Id. at 1168-69. thereby unduly limit access to the courts at The court in Duncan ruled that government time when increasing has government would if be liable the decision impact on citizens’ lives. Id. on pilot’s application for a certificate Hendry proposed

The court three factors negligently performed. evaluating assist in whether discretion Relying Hendry, on the court focused on pilot requested 15. The in Duncan also claimed that the to furnish certain medical informa- “prospective pilot United States requested interfered with tion. The later submitted the advantage.” NTSB, economic The district court held which information then dismissed this assertion complaint. fell within U.S.C. reviewing the FAA’s After 2680(h), expressly excepts submitted, which from the reports pilot FAA scope arising of the FTCA claim out of pilot pilot ap- denied the pealed recertification. The rights.” “interference with contract more, again. to the NTSB once won F.Supp. at 1169-71. pilot’s damages claim for was based certification, denial of later on the Duncan, the FAA also had revoked the revocation decision. earlier pilot’s medical certificate because he had failed *11 Nevertheless, held many courts have since formulation and between the the distinction It that the Ad- of rules. noted determinations ... application “[vjarious licensing [to statutory powers, exercised his ministrator than discretionary operational rather be] 1354(a), regula- to make 49 U.S.C. §§ 2680(a),” Hendry, meaning the of § within the standards for issuance tions and create closely must examine 418 F.2d at certificates, poli- doubt a airman without of regula- licensing FAA specific the medical the But Admin- cy-making determination. in case to see particular tions involved this decided, to his pursuant istrator also had within the FAA had “discretion” whether function of exam- authority, delegate the to 2680(a) grant to a medical the terms of § certif- testing persons and for medical ining we must see Specifically, certificate. aviation Surgeon, to Air icates the Federal FAA regulations instructed the whether the examiners, 49 and staff. medical FAA See weigh medical abnormal- officials to certain 1422; 1355(a), 67.25 § 14 C.F.R. U.S.C. §§ policy judgment a range ities and left of these dele- (1982). court found that The license, whether grant to to whether nondiscretionary gates performing were match simply required were officials facts clear matching of individual task a clear medical against these deficiencies by standards the Administra- promulgated Indeed, 355 the court F.Supp. regulations. tor. Ba- contained in standard stressed, regulations on the Administrator’s regulations if FAA’s allowed sically, “any appli- stated that medical certification grant a medi- Air discretion pre- ‘who cant meets medical standards public weighing cal after certain certificate in medical part, scribed this based on exam- also him permit concerns would policy history ination and evaluation of his certificate, his would deny condition, appropriate is entitled to an an of discretion not cov- constitute exercise ” F.Supp. 1169 medical certificate.’ by ered FTCA. See U.S.C. 67.- (emphasis added) (quoting 14 C.F.R. § 2680(a). § an 11). applicant The court concluded that regulations The FAA’s on “Medical Stan- forth who meets the standards set to the at 14 legal right has a medi- and Certification” found Administrator dards cal at 1169. F.Supp. certificate. (1982). history of the stan- C.F.R. The § safeguard effort to dards reveals careful it explained why The court also Duncan rig- by establishing detailed and public particularly concerned that discre- must qualified pilots tests that all orous exemption not be in tionary function used protection Aeronautics Ad- that case “to effect mantle meet. the Civil action.” Id. at 1170. The negligent FAA) (the predecessor ministration regulations, court Administrator’s Founda- Flight Safety contracted with the out, respon- carried out pointed not tion, (FSF), non-profit group Inc. safety they air also ef- sibility promote — expertise safety, in aviation to evaluate fectively livelihood of com- determined the rec- existing medical standards. The FSF’s pilots. mercial airline This double effect ommendations relied on the evaluations upon the imposed an “added burden” leading professional groups individuals “If the government: government assumes The specialties. in appropriate responsibility regulating commer- 31,1958, report precipitated FSF’s March its pilot occupation cial air in furtherance of regulations Septem- adoption new ‘end-objective’ securing safety, air 11, 1959, today ber which continue effect must do so in a careful manner.” form. Delta substantially the same agree We with the court in Duncan that Lines, F.Supp. Inc. v. the FAA’s refusal to an airman medi- issue (N.D.Ga.1980). applicant qualified cal certificate to a does begin by establishing a regulations not constitute the exercise of a necessarily to whom medical certifi- applicants class of function, thus discretionary does be issued: preclude jurisdiction our under FTCA. cates shall applicant An who meets the medical elude that the determination of whether standards prescribed part, based appellant met the vision medical qualifica- on medical examination evaluation tions relied on the FAA in its denials did history and condition is entitled involve a decision within appropriate medical certificate. the meaning 2680(a). of 28 U.S.C. § (1982) (emphasis added). 14 C.F.R. 67.11 *12 Finally, we note that some medical stan- Duncan, Like the court in we find the lan- dards do require the FAA to a balance guage significant: of entitlement to be If judgment medical with a calculation of standards, applicant the medical meets the applicant’s whether medical condition he given must be a certificate —at that permits perform him to his safely. duties point in the process certification the FAA’s We believe that the neurological standard is discretionary.17 decision not We also note on which the FAA in denying appel- relied imposes 67.11 a on duty the FAA to § lant’s applications falls within this third base its decision aon medical examination group. The standard all same for applicant’s history evaluation of the three classes of applicant certification. The and condition. may not have any: The next regulations sections of the es- disorder, other convulsive of disturbance particular tablish the medical for standards consciousness, or neurologic condition first, second, and third-class certificates. the Federal Surgeon Air finds— 67.13, .15, See id. .17. Some of §§ (a) applicant Makes unable to safe- appear standards to leave little or no discre- ly perform the duties priv- or exercise the any example, tion of kind to the FAA. For ileges of airman certificate that he 67.13(b)(2), under to meet the qual- vision § holds or for which he is or applying; a ifications for first-class ap- certificate an (b) May reasonably expected, within plicant “[njear must have vision atof least years finding, after the to make him =v eye sepa- 1.00 at 18 inches with each perform unable to those duties or exercise rately, with glasses.” or without corrective privileges; those Other standards can be read require and the findings based on the case judgment, medical but not the balancing history appropriate, qualified, medi- competing policy concerns associated with a cal relating to the condition discretionary decision. For 67.- example, § involved. 13(e)(l)(i) requires applicant an for first- 67.13(d)(2)(H),.15(d)(2)(H),.17 C.F.R. §§ class certification to have established “[n]o (d)(2)(H) (1982). language requires This history medical diagnosis or clinical Surgeon judg- the Air to use his medical [mjyocardial infarction.” We believe that ment appli- to determine whether the vision standards noted in the denials in case, cant suffers or a vision,” this has suffered convulsive “[njormal fields of id. disorder, consciousness, or 67.13(b)(4), (first disturbance .15(b)(3) §§ and second- certificates) neurologic class condition. Then he must ana- patholo- serious “[n]o lyze scope of the gy eye,” 67.17(b)(2) (third-class any problem. id. such Final- § certificate), ly, Surgeon fall the Air category. in this second has decide whether require pilot These standards the condition would make FAA to evalu- unable condition, ate medical weigh perform safely not to his duties present balance years. conditions such as the effect of the within two In this ease we find that problem vision pilot’s per- step this ability last determination under this —the form Therefore, his duties safely. regulation we con- appellant’s of whether possible person possesses proper 17. The word qualifica- “entitled” in 14 C.F.R. 67.11 that such § for, language physically perform also reflects 49 U.S.C. tions and is able to 1422(b), pertinent part: to, pertaining which states position § the duties sought, which the airman certificate is he Any person may file with the Administrator shall issue such certificate. .. . application for an airman If certificate. (Emphasis added.) finds, investigation, the Administrator after testing facts made him unable matter known neurologic problems perform privileges duties or exercise his his a clear medical standard. For these against range of safely Surgeon the Air reasons, specific deter- we conclude that —left narrow albeit a one.18 policy judgment, this Surgeon minations Air about decision, making Surgeon had neurologic constituted an fitness that, ap- how, and evaluate the likelihood exercise of discretion under terms prob- pellant neurologic have future would exception 2680(a).19 in 28 U.S.C. performance on his impinge lems that could emphasize We that our hasten to decision Surgeon had to pilot. as a Then the Air exempt in this case does from FTCA prob- possible calculate the effects of the just remedies medical or ad- safety. lems on air This substandard neurologic regulation’s exemption], We note id. at 614 requirement concurring opinion evaluate & n. 31. The also states permit perform- reading whether condition will safe straightforward regula- *13 “a of the that distinguishes ance sively it from the exclu- Surgeon’s] of duties Air tions confines determina- [the Hendry. involved in medical standard applicant’s neurologic tion to the effect of the Hendry explicitly that: The court in stated safety.” (footnote health on air Id. at 616 governing regulations and the omitted). statute [T]he procedure delicensing appear to con- do not deference, With due continue we to believe vey identify public and consider discretion Surgeon’s the Air medical certification de- safety only apparently goals. The discretion applicant’s cision as the effect the neuro- “to of judg- contemplated is that inherent in the logic safety” health on air was a medical-ad- any private prac- in doctor ments of medical public ministrative determination of a charac- tice. ter. This not a in- is medical treatment case case, however, at 783. In this the F.2d Instead, volving allegations malpractice. of Surgeon neurologic lim- standard the Air left Surgeon, pub- involves Air the Federal senior policy judgment appellant’s ited to whether as responsible applica- lic official who “is for the perform allow him medical condition would safely principles of tion edge aviation medicine and knowl- pilot. In the duties of a commercial safety promotion and of civil avia- the decision, Surgeon pre- making his Air was Description tion.” FAA for the Feder- Position respon- sumably factors to consider such as discharge responsibility Surgeon. al Air To his pilot, airline tech- sibilities of a commercial nology accidents,” help “prevent]] Air aircraft aircraft, in inherent of demands research, Surgeon supposed develop, is and flight system, avail- nation’s traffic and the implement civil “medical fitness standards for backup personnel equipment. able This and airmen, bioengineering as- and [enhance] clearly decision was by from made different one design pects operating of aircraft and aircraft private practice.” “any medical in doctor among procedures,” These other duties. Id. physician private practice, For unlike the in private physicians are not over which matters Surgeon’s Federal Air ‘client’ is .. . “[t]he case, judgment. Air Sur- exercise public,” “[sjafety and is ... the hallmark of appellant geon had to determine whether procedures” airman which certification under fly neurogically public in fit to members of the Lines, operate. he Air Inc. v. Unit- must Delta system. traffic This decision the nation’s air 909, States, F.Supp. ed at physi- does not to us to be like that of a seem Thus, it, only with as we see our difference patient fit cian who whether his is determines concurring opinion Judge Robinson’s re Chief to drive a car. Surgeon’s deter lates to whether the Air final course, agree, We that some the certifi- appellant’s neurologic condi mination —that Surgeon apply cation must standards Air perform pilot’s tion him his made unable only judgment. involve But that does medical judg safely duties “exercise of —involved safety evaluations not mean that all medical-air public ment or discretion of a character.” Con purely medical standard. can be reduced to (footnote omitted) curring Opinion case, language deal- In this of the standard Co., (quoting Air v. Eastern Lines Union Trust ing neurologic capabilities instructs the (D.C.Cir.), now. 221 F.2d aff'd sub neurologic Surgeon conditions Air to evaluate Co., v. Union Trust 350 U.S. States light predictability re- of uncertain (1955)). 100 L.Ed. 799 The con 76 S.Ct. performance quirements over of duties of safe emphasizes deci that the certification currence prob- neurologic conclude that time. We must only application sion in this case involved safety possible on air effect lems and their standards, Concurring Opinion see of medical sufficiently problematical that the standard so 615-616, numerous medical treat and cites dis- was drafted to leave the “many proposition that ment for the cases case-by- weighing in a to undertake this cretion by gov held that medical decisions courts have case manner. beyond pale personnel are [the] [of ernmental place ministrative conduct took and his staff were negligent in applying course the FAA’s professional findings (such consideration evalu- as the EEG re- of appellant’s neurologic ation condition.20 ports, potential evaluations of seizure Indeed, neurologic rebleed, standard itself con- analyses risk of the cause of discussed, requirement already hematoma) tains the question of whether (1982), 14 C.F.R. 67.11 that the FAA base perform pilot § could duties its decision on the medical It safely. record. states We turn next to those allegations Surgeon’s findings the Air negligence must excluded 28 U.S.C. on history appropriate 2680(a). “based the case qualified judgment.” 67.- §§ Negligence IV. 13(d)(2)(ii), ,15(d)(2)(ii), ,17(d)(2)(ii). What Claim we are classifying discretionary is The district court found “that the Air Surgeon’s final judgment, based Surgeon was not negligent denying evaluation, the medical the applicant is plaintiff’s applications for airman medical perform to safely “unable the duties ... certificates and that all such denials were the airman certificate.” id. based on substantial evidence [were] entirely Opin- reasonable.” District Court consequence, As a many ion at 9-10. We will not disturb that find- allegations of negligence are excluded ing unless it “clearly erroneous.” McAl- judicial review under the lister v. United 348 U.S. 75 S.Ct. exception. Although the trial (1954); 99 L.Ed. 20 Daniels Hadley judge difficulty encountered some ob- *14 Memorial Hospital, F.2d 756 n. 49 a taining plaintiff’s counsel satisfacto- (D.C.Cir.1977). As the Supreme Court not- ry specification of particular the duties ed, “A is finding ‘clearly erroneous’ when breached, (Tr.) see Transcript Trial at 253- although it, is support there evidence to the understanding alleged our is the that reviewing court on the entire evidence is negligence (1) failing consisted of: pro- to left with the definite and firm conviction complete vide and accurate materials to ex- a that mistake has been committed.” Unit- perts whom to analyze the FAA asked and U,S. Co., 364, 395, ed v. Gypsum States condition; (2) on report appellant’s failing 525, 542, (1948). 68 S.Ct. 92 L.Ed. 746 to base denials of on an certification accu- “Thus, a trial finding court’s will not be rate evaluation appellant's of current case permitted to stand where is based on a condition; (3) and history and to failing as to serious mistake the effect of evidence the apply accurately experts’ reports and clearly contrary or is of weight to the the the FAA’s appellant’s evaluations of condi- Daniels, evidence.” 566 F.2d at 757. tion to the ap- certification standards. Our plication of the discretionary function anal- is important It first to pinpoint precisely ysis just to appellant discussed this case would not what actions claims constituted First, the types allega- exclude first and second of negligence. the challenged acts are tions, nor the third insofar as the com- of Surgeon, those the Federal Air FAA plaints related the to vision standards. other employees, per- and U.S. Government However, exemption the ap- trial, does foreclose plaintiff sonnel. As at he conceded is pellant’s allegations that the Air Surgeon not to attributing any possible the FAA Payton cretionary acts, failing 20. Cf. F.2d while intermediate like (5th Cir.1982) (en banc), requested 482-83 where the to forward material records to Board parsed pro- members, sufficiently court in an action separable FTCA statute be found could hospitalization viding mentally for of ill the from the final decision on release to be held prisoners operational, non-discretionary. and found non-discre- Id. at n. 6. cf. But id. function, inmates, tionary X, of (Tjoflat, dissenting) (the the examination purposes at 483-87 decision, preceded placing “discretionary exception” In an inmate in an institution. by “jurisdiction course recognizing frustrated of a discussing separate provision, also court claim based on an act to antecedent a discre- noted that an ultimate of the decision Parole tionary act”). prisoner Board to release a could be held dis- Opinion he saw the films. District Court indepen- negligence of FAA consultants Second, fact, stated at the trial Tr. Dr. Stevens at 11. dent contractors. supported opinion his actions involved medi- that the films disputed FAA’s for process suitability which the lack of certifica- appellant’s cal-administrative his not award Surgeon made decisions tion. at 397-98. Tr. Third, appellant a medical certificate. alleges that the FAA Finally, appellant claims, alleged parse as best we can his provided group that con- consultant government personnel negligence by exemption in 1977 petition sidered his failing to (1) provide their: consisted of summary that con- “working paper” with a complete experts accurate materials and Appellant information. tained inaccurate analyze report whom FAA asked to termed complains summary first that appellant’s condition; (2) failing to base episode incident seizure and then eval- denials certification on an accurate mention his recertification in omitted history case appellant’s uation of current would advised Although the FAA condition; (3) accu- failing apply greater identifying to take care in conflict- rately experts’ reports FAA’s ing preparing when such summa- analyses evaluations of condition to ries, no that the consult- we find evidence standards.

certification panel astray. Appellant’s ant was led frus- Looking allegations first at the that conflicting explanations with the tration necessary materials FAA failed send understandable, is we 1970 event but consultants, agree its expert single interpretation note no that appeared the FAA’s actions accepted experts, 1970 incident was all confidence-inspiring. at times less than As trial, even time see Tr. at the below, however, we detailed conclude Stevens), Dr. much less in (testimony of they finding district court’s did witness, 1977. Appellant’s own Dr. Stuart negli rise to the threshold of actionable Winston, admitted on cross-examination “clearly contrary weight gence appel- was not whether or not he sure of the evidence.” lant a seizure in 1970. Tr. at 211-13. had *15 Furthermore, panel the had number of prime A that complaint appellant of is reports primary other and sources of evi- Hunter, Surgeon the Air sent Dr. one of his which it have based its rec- dence on could consultants, pre-sur- only reports the Indeed, for denial. Dr. Bosh- ommendation the them- gery arteriogram instead of films es, a wrote a letter panel, member of the the court pointed selves. But as district 25,1978, that the rea- February dated chief out, Hunter was satisfied with the “Dr. panel’s son the decision was that various for reports request did not actual and discharging EEG had active at Dr. tests shown Opinion films.” Court District foci Defendant’s Ex- appellant’s not brain. that he did feel he Hunter testified panel if the were films, hibit No. 1 at 182. Even and that it needed examine the to misled, final on way in some decision neurosurgery of customary was field FAA, by and appellant denial was made radiolo- rely reports qualified of on allege does the FAA was unaware that The FAA could rea- gists. Tr. at 353-54. of recertification in 1971. ask his expected Dr. Hunter sonably have the reports if arteriogram for the films also that Appellant complains the sum- were insufficient. mary provided panel FAA contained that the pre-operative the false statement attacks failure Similarly, appellant provided was (arteriogram) angiogram Dr. the CAT send Stevens Scan the FAA to Appellant argues Dr. Dr. Hunter. that found that films. The district court panel give led the the misinformation undue rely was to on practice normal Stevens’ Scan, weight opinion, Dr. was he Hunter's which radiologist’s report the CAT reports only arteriogram. on on case, did based and Dr. Stevens had in this that district agree We with the court that even after opinion change his medical that “[tjhere Surgeon no credible evidence the Air was far more concerned about opinion misled Dr. Hunter’s panel appellant’s neurological condition than his of the arte- concerning letter his assessment event, In that visual defect. even if Air reports.” Opinion District riogram Court negligent assump- had been in his pan- summary at 10. also referred tions about extent of appellant’s visual Dr. report arteriogram, el to Auth’s on the loss, if a one-quarter and even field loss appellant which maintains was correct been qualifying, would have con- cannot one Dr. Auth based it on his exami- because clude that error caused the denial Moreover, of the arteriogram nation films. certification. that appears panel had arterio- also Appellant argues that the Air gram films available to at 10-11. it. Finally, inconsequential Surgeon’s the error first denial referred to appel seems panel of the fact use of light that even if the had lant’s continued anti-convulsant med totally ignoring ication, relied on Dr. Auth’s report, and that the Air Surgeon should Dr. Hunter’s would have findings, they have file known left with Dr. been Auth’s bottom-line rec- was no appellant longer receiving such appellant given ommendation that not be We agree medication. the Air Sur “neurological clearance” because other geon’s troubling, error is again but we find problems. (testimony See Tr. at 291-92 of no that makes evidence us think it made a Reighard, Dr. quoting from Dr. Auth’s re- The Air Surgeon difference. consulted port). prior with Dr. Hunter first denials, testimony second and Dr. Hunter’s The appellant’s category second makes it clear that his recommendations negligence concerns failures Sur on analyses were based his of appellant’s geon government and other personnel problems neurological history. Tr. denials of base certification on an accurate 354-56, 370-79. But we can no find evaluation of case appellant’s current histo reason to believe that as erroneous ry and condition. is that complaint One appellant sumption required anti-con Surgeon’s first and second denials were vulsant medicine had much effect on Dr. based Dr. Hunter’s inaccurate reference analysis. He did Hunter’s not refer to loss, to a one-half field visual when the Air testimony diagno medicine in his about files Surgeon’s showed that had one-quarter sis. Dr. By way analogy, field loss of vision. We we note that see do not how this ap error makes differ Boshes maintained his conclusion that Even a one-quarter ence. field loss of vi unfit even pellant was after he learned disqualifies applicant sion first appellant was off the Tr. medication. See certificates, second-class there is at Beins); (testimony D. Ross *16 question some of it might least whether be Exhibit 1 at Defendant’s No. disqualifying, as a of pathology “serious the Appellant’s objection next that eye,” third-class certification. Dr. Surgeon ignored the Air appellant’s case Hunter stated at trial that the distinction history and current medical condition when between one-half and one-quarter field loss conclude, he to the failed the time of of would not any vision have made differ denials, appellant second and third that did in ence his denial recommendation for to not have vascular malformations. Appel Surgeon. Appellant the Air Tr. at 364-65. lant that the argues arteriogram taken in stresses that the Air told him Surgeon later this one-quarter revealed information. Further that his field loss of vision was more, believes major concern, appellant that Dr. Auth’s suggests that the about conclusion that there were no mistake a one-half field loss cost him malforma believe, however, tions, denial, to the prior certification. We that in made third should question. ap Appellant the context of his overall evaluation of have settled con condition, pellant’s com the Air Surgeon’s Surgeon’s negligence the Air tends that import: ment carries a different that to have compelled appellant another arteri- that 1977 to establish the on cross-examination the destruction ogram December tissue, here, brain as would absence of vascular malformations. We such occurred adjacent reparative gliosis,” leave struggle per- “some sympathize appellant’s experts which stated would Air he also Surgeon expert suade the that certain some term a at 238. scar. Tr. We believe prevail, we cannot con- views should but overemphasize would be a mistake to a de- Surgeon’s seeming clude that Air recal- nomenclature, bate ar- appellant’s about Quite was due sim- negligence. citrance to do. gument us Whatever presses experts pres- about the ply, disagreed term, diagnosis the heart of Dr. Stevens’ vascular Even dangers. appellant’s ence of was a risk appellant’s that condition created witness, Winston, Dr. that admitted trial therefore, conclude, of future seizure. We performed he could neither con- surgery his Surgeon reasonably that Air based deny appellant firm nor whether still had medical con- appellant’s denials on current Dr. microangiomas. Tr. 222-23. Winston Dr. expert dition when he relied on Stevens’ not feel also testified that he did he could report. give possibility “the all clear” about the microangioma in June the month Finally, category we review last applied time appellant the third for certifi- appellant’s allegations of negligence: cation. See Finally, Tr. at 233. Dr. Win- accurately government’s apply failure ston stated that he did not tell the FAA experts’ reports and the FAA’s evalua- he had that revised his earlier conclusion tions of condition to the certifi- appellant’s were (that possible microangiomas) there above, cation As we standards. discussed that he there no state believed that allegations ap- to the appellant’s pertaining evidence of malformations until March neurological plication of the standard 1978, about months after the third seven precluded by the “discretion- case are denial. Tr. at 225-26. ary exemption” U.S.C. 2680(a). do not believe has We Appellant also asserts that the Air complained specific about the FAA’s act ignored actual Surgeon appellant’s of his condition applying analyses visual when condition he based fourth and make to the standards. Insofar as he does in part post-surgical fifth denials scar allegations about FAA’s treatment which the en ring, Surgeon Air believed we dis- problem, already visual have probability Appel hanced the of seizures. any possible were why cussed above errors argues Surgeon lant should cer- inconsequential deny decisions to have known the CAT Scan did tification. reveal scar. We believe that the con tentions about presence sum, scar we conclude that the district about disagreements similar vascular court’s of no is not finding negligence judgments malformations —-the reasonable This “clearly say erroneous.” is not to experts of medical on the issue differed. Surgeon’s we do some of the Air not find Stevens, expert Dr. with whom Clearly, provision both to of medi- practices relating prior consulted experts, cal to assessment materials to denials, fourth and fifth believed that al condition to current medical scar, it though is, fact, the CAT did not show a Scan That the reason troublesome. revealed a that would extensive accompany why condition have conducted such an However, explained a scar. Dr. Stevens the CAT review of the medical evidence. *17 of circulation of that review has served convince us revealed an absence Scan practices none of contrib- questionable in “the atrophy, blood an area of respect the Air any uted in material there an ac consensus would hold Surgeon’s certify appellant. not to decisions Tr. at 403. Dr. companying scar.” scar, cortical also that a such Stevens stated Expert Testimony V. Exclusion here, ais potential as he believed existed urges 408. also reversal because Appellant’s Appellant source of Tr. at epilepsy. Winston, permit ap- one of witness, district court declined expert own Dr. admitted

609 witnesses, pellant s Dr. Emil Taxay, to tes- evidence we have support the exclusion tify as an in expert aviation medicine. Dr. Taxay’s of Dr. testimony expert as an in Taxay expert did as an in testify internal aviation medicine comes from his admission medicine. at trial that he was not Board certified in aviation medicine. Tr. at 38-39. The Fed.R.Evid. 702 lays down a two- government seeks to buttress the denial by part test for the admissibility of expert noting that Dr. Taxay had not authored testimony: qualified witness must be publications medicine, in aviation and that capable he must be of assisting the designation his former as an AME had been trier question of fact.21 The of whether Appellee’s revoked. Brief at 26-27. But these conditions have been satisfied is neither of these facts is disqualifying per largely committed to trial court discretion. se. Possibly the district judge also thought Supreme As the Salem Court stated in Taxay’s that Dr. testimony would not be of Lines, United States 31, 35, 370 U.S. 82 assistance to him in his role as trier of fact. 1119, 1122, (1962) (cita S.Ct. 313 L.Ed.2d hand, On the other we note that from 1959 tion omitted), judge “the trial has broad to 1963 Dr. Taxay served as an AME for discretion in the matter of the admission or the FAA. He flight surgeon was also a evidence, of expert exclusion and his action years. Force for two And Dr. Tax- is to be sustained manifestly unless errone ay pilots has assisted in attempts their ous.” This court has also stated: regain certification after denials in some qualification The of a particular wit- 200 cases. Tr. at 31-36. ness to testify expert is largely Fortunately, we do not need to decide within the domain judge. of the trial whether the district court erred in its refus- inquiries Particular which may appro- be al to accept expert qualifications, his be- priate in some cases may inappropriate be cause we do not find absence of Dr. in others. The majority this court Taxay’s testimony on aviation medicine to think the matter should be left prejudicial. A summary the matters judicial sound discretion of the trial appellant proffered on which testimony judge, with no specific guidance more (1) includes: how visual field loss than is opinion. contained should have been evaluated under good avi- Jenkins v. United 307 F.2d (2) ation medical certification practice; four n. (D.C.Cir.1962) (en banc). guid- good certification practices relating to the by Jenkins includes the fol- provided ance inspecting arteriograms and the anal- lowing: “a general practitioner may testify malformations; ysis (3) of avascular wheth- concerning matters spe- within a medical disqualifying grounds given er were in the if cialty experience, his education or or Air Surgeon’s denial letter of March both, involves demonstrable knowledge of 1976; (4) Dr. Taxay’s assessment of the id. at 643 the subject,” (citation omitted); surgery as of the date of the first skilled witness on a subject need (March 26, 1976); (5) denial other physi- id. medicine, not be duly practice licensed to opinions possibility pesti- cians’ on the 644; experience training and “if en- incident; exposure (6) cide caused the 1970 proffered expert ables a witness to form an appel- whether the FAA’s medical file on opinion jury, which would aid the lant if reflected the FAA ever asked an countervailing absence some considera- expert in internal medicine to evaluate the tion, his will be testimony received.” incident; (7) significance admittedly This case skirts the line the Air Surgeon’s recertification after the [H] judge gives where our deference to the trial Appellant’s Opening incident. Brief at 48- way reading to our of the rule. The issue, qualified expert by Fed.R.Evid. states: a witness as an skill, knowledge, training, experience, or edu- scientific, technical, specialized If or other cation, may testify thereto the form of an knowledge will assist the trier of fact to un- opinion or otherwise. derstand the evidence or determine a fact *18 psychiatrist completely claim against effect of Dr. Tax-

We have examined the these testify judge to on each of when the trial ruled that the ay’s inability stymied item, relating to expert As to the first witness physician plaintiff’s matters. who was loss, Taxay’s we note that Dr. visual field testify on the standard qualified was not the effect testimony admitted covered both Therefore, unlike and its violation. of care 42-45, loss, see Tr. at vision hand, ruling in judge’s the case at the trial regu- how the medical standards to estab Kosberg gutted plaintiff’s attempt In see Tr. at 72-73. applied, lations are of the action. lish the core elements Simi addition, not why have we do we discussed Reisinger, 363 F.2d 309 Baerman v. larly, possible believe a error (D.C.Cir.1966), appeal involved an on the visual loss issue was determinative malpractice verdict in a medical directed As to the of the denial of certification. where the ex against cardiologist case area, relating to the proper practices second testimony general practition from a cluded analysis of the avascular inspection and treating plaintiff’s in experience er with malformations, are a matter practices those the standard illness was offered establish aviation medi- neurologic expertise, practice practitioners. for similar Unlike above, ample evidence cine. As discussed s Baerman, testimony wa not Taxay’s Dr. disagreed experts reasonably showed that court in educating critical to the trial of vascular presence about and effect ap regulations about how should be case the ab- subject, malformations. The third and how the medical-administrative plied in first disqualifying grounds sence of system certification should be aspects of a letter, hardly require Dr. denial seems performed. part the letter is Taxay’s commentary; clearly Because we do not find erroneous record, regulations and it refers to govern- court’s decisionthat the district court can also examine. The which the case, in this negligently ment did not act item, of the Taxay’s fourth Dr. assessment we do not find the district and because denial, surgery at the time of the first Taxay’s testimony limitation of Dr. court’s prejudicial not seem to be would error, judgment of the to be reversible on the second matter. gave same reasons in event district court Taxay managed testify Dr. item, opinions other physicians’

on the fifth Affirmed. the 1970 incident. Tr. on the cause of Sixth, question of whether at 75-76. ROBINSON, III, W. SPOTTSWOOD FAA’s file revealed a consultation re- Judge, concurring: Chief expert in the 1970incident with garding require really internal medicine does and, save join I the court’s Taxay Dr. expert commentary. Finally, opinion. Though agree in its I point, on one meaning of the FAA’s also testified on affirmance, difficulty have with the I in 1972. See Tr. recertification relationship on the of the position court’s at 74-75. to neuro- exemption testing in airman medical certification logic conclude, examining We must after my to elucidate I thus write expert procedures. record and testi- detail the extensive case, application approach questions in this the exclusion mony Taxay’s grounds of Dr. for a supplementary aspects explain my these and to exemption, prej- does not amount planned testimony thereon. different outcome The facts of this case udicial error. those in the cases noticeably different than I argu- of his support

cited by appellant imposes Act lia- Tort Claims The Federal Kosberg v. Wash- ment for reversal. damages upon the United States bility in (D.C. Center, 394 F.2d 947 ington Hospital of its acts or omissions wrongful curiam), wrongful death for Cir.1968) (per

611 subject Act, employees,1 but to a number of exc under the exercised care to protect One, eptions.2 supplied by 2680(a), Section claims, Government from negli however exempts upon claims “based the exercise or caused, gently govern affected the performance or the failure to or exercise mental functions.”6 Consonantly, perform discretionary duty a function or declared, Court ‘discretion’ protected “[t]he part of a federal or an agency employee by the section ... is the discretion of the Government, of the whether or not the dis executive or the administrator to act ac phrase cretion involved be abused.”3 The cording judgment to one’s the best however, or “discretionary duty,” function course, concept of substantial historical is much less than encompassing the words ancestry And, in American law.”7 of the might suggest. themselves The mere fact steps Congress took “to protect the Govern responsibilities the employee’s require ment from liability that would seriously some judgment enough;4 exercise of is not handicap government efficient opera it is special discretion of a kind to which 8 tions,” the Court more recently has labeled In Dalehite v. 2680(a) speaks. Section 2680(a) “[mjost important.”9 Section States,5 undoubtedly leading A quarter-century ago, when first con- case on the subject, Supreme Court explained fronted Congress, excepting discretionary vari function ex- types activity ous of liability emption, risk this circuit heeded these teachings. liable, respecting 1. “The United produced States shall be of ammonium nitrate fertilizer in a provisions relating federally-initiated of this title program to tort and -controlled for claims, in the same manner export military and to the same occupation to areas under fol- private extent as a individual under like cir- lowing World War II. cumstances, but shall not be liable for interest prior punitive or for dam- 32, 966, 6. Id. at 73 at S.Ct. 97 L.Ed. at 1439. ages. (1976). ...” 28 U.S.C. 2674 § See also 1346(b). id. § 34, 967, 7. Id. at 73 S.Ct. at 97 L.Ed. 1440 (footnote omitted). 2. See id. 2680. § provisions chapter 3. The of this and section Muniz, 150, 163, 8. United States v. 374 U.S. 83 1346(b) apply of this title shall not to— 1850, 1858, 805, (1963). S.Ct. 10 L.Ed.2d 815 (a) Any upon claim based an act or omission Government, employee of an of the exercis- appeal Id. While this draws in care, ing due execution of statute or part 2680(a) second of § —the regulation, whether or not such statute or exemption congressional same —the valid, regulation upon be or based the exer- objective easily part. is discernible in the first performance cise or or the failure to exercise There, supra. by excepting “[a]ny See note 3 perform discretionary duty or function or upon claim based an act or omission of part agency employ- on the of a federal or an Government, employee exercising due Government, ee of the whether not the care, regulation, in the execution of a statute or discretion involved be abused.... regulation whether or not such statute or valid,” Congress preclude any “intended to possibility observed, might “[¡judg that the be construed [Act] 4. As the Sixth Circuit has every damages against ment is for exercised in almost en authorize suit the Govern human judg growing activity, deavor. ment, however, It is not the mere exercise ment out of an authorized irrigation project, which immunizes the United such as a floodcontrol or liability employ States from negligence for the torts of its part where no on the Govern States, 990, shown, ees.” Downs v. United 522 F.2d agent only ground ment and the (6th Cir.1975) (footnote omitted). 995 See also suit is the contention that the same conduct States, Mfg. J.H. Rutter Rex tortious, Co. United 515 private individual would be or that 97, (5th Cir.1975), denied, F.2d 954, 99 cert. 424 U.S. regulation authorizing project the statute or 1428, (1976); 96 47 L.Ed.2d 359 S.Ct. States, supra was invalid.” Dalehite v. United States, 243, (5th Smith v. United 375 F.2d 246 5, 21, note 21, 346 U.S. at 29 n. 73 at 964 S.Ct. n. Cir.), denied, 841, 76, cert. 389 U.S. 88 S.Ct. 19 21, quoting H.R.Rep. 97 n. L.Ed. No. States, (1967); L.Ed.2d 106 Liuzzo v. United 1287, Cong., (1945). 79th 1st Sess. 5-6 F.Supp. (E.D.Mich.1981). 930-931 States, Dupree also v. United F.2d 1957); (3d 824-825 Miller v. United Cir. 5. 346 U.S. 73 S.Ct. L.Ed. 1427 (6th 1978). F.2d Cir. (1953). explosion The case emanated from an *20 handled de- Co.,10 merely operational operators Lines v. Union Trust In Eastern Air fatali the area the dis- resulting multiple are outside mid-air collision tails which of federal negligence attributed to ties was functions and duties referred to cretionary air traffic from an directing air employees 2680(a).”14 “[Discretion,” the court in § ar tower. The Government port control added, exercised when it was decided “was “incorporates into exemption that gued tower, person- but the tower operate courts that the principle the Act the historic negli- operate nel no discretion to had not, action, revise or review in private will 15 gently.” involving the exercise of executive conduct discretionary exemption function The public of a charac or discretion judgment Air Lines as a emerged thus from Eastern 11 “no doubt that the ter,” and the court had interference, through the safeguard against consciously by restated Con principle was action, of a tort with “executive medium exemption.12 enacted the gress when it” judgment involving conduct the exercise however, rejected, Govern The court This public or discretion of a character.”16 contention “that the tower ment’s further recognition received later concept has in nature and operators’ public duties court,17 courts of this and other decisions judg involve the exercise of discretion 13 explic- it.18 As Daiehite makes ment,” “that the tower have shared holding instead 200-206, 62, 189, ticability pro- U.S.App.D.C. of the fertilizer 221 F.2d Government’s 10. 95 42, 971, 73-79, gram.” at 97 L.Ed. aff'd sub nom. United States v. Union 246 U.S. at 73 S.Ct. Co., 907, 192, 76 100 L.Ed. Trust 350 U.S. S.Ct. at 1444. (1955). 799 Air Lines court likened its inter- 16. The Eastern 202, U.S.App.D.C. 74-75 11. 95 at 221 F.2d at discretionary exemp- pretation function of the (emphasis supplied). pronouncement that tion to Daiehite’s “[t]he by protected the section ... is the ‘discretion’ 202, 12. 221 at 75. This is not to be at F.2d or administrator discretion of the executive discretionary suggestion taken as a according judgment the best to act course, to one’s exemption governmental- function proprietary borrows the concept an- of substantial historical municipal law. distinction from 34, cestry in American law.” 346 U.S. at 73 notion, rejected id. at Eastern Air Lines 697, (footnote 97 at 1440 omit- S.Ct. at L.Ed. 201-202, 73-74, Supreme 221 F.2d at as Lines, That, ted). ‘his- said Eastern Air “is the Towing Indian Co. Court was later to do also. principle,’ referred to in the Government’s toric brief,” States, 61, 65, 122, 76 S.Ct. v. United 350 U.S. 11, supra which see text at note “about 124, 48, (1955); Rayonier, Inc. 100 L.Ed. 53-54 dispute.” U.S.App.D.C. at can be no 95 there 315, 319, States, 77 S.Ct. v. United 352 U.S. 15, 203 n. 221 F.2d at 76 n. 15. 374, 376-377, 354, (1957). To 358 L.Ed.2d judgments say exemption that the immunizes States, U.S.App. public v. United than to 17. Hitchcock “of a character” is no more 198, 207-208, 354, Congress F.2d 363-364 not. extend reflect the view that did D.C. (1981); States, U.S.App. private governmental Sami v. United the assimilation of liability 755, 173, 184-185, support point it would 617 F.2d to the D.C. (1979). (Maj.Op.) damages Majority Opinion based on ex- See also claims for wherein the courts have tradi- ercises areas 600. tionally judgment their declined to substitute to whom the discretion for that of the official States, supra E.g., v. United note 18. Smith was confided. (“[t]he is immune 375 F.2d at 248 United States liability present because of from case not U.S.App.D.C. 74-75. 221 F.2d at government officials made the mere fact choices, made affected but because the choices 202, 221 Id. at F.2d at 75. monetary) (not merely political inter- nation”); v. United ests of the Miller 205, 221 at 77. The court distin- 15. Id. at F.2d (discretionary supra 583 F.2d at 866 note ground guished of the Daiehite on the that each exemption “does not insulate negligent di- as acts there characterized liability from for all mistakes Government by fertilizer-production and -distri- rected significant agents, judgment for of its but plan previously Id. at bution formulated. decisions, types gov- policy political Indeed, Daiehite Court 221 F.2d at 76-77. which should not be cir- culpa- ernmental decisions decisions held itself declared that “[t]he standards”); by customary tort planning responsibly cumscribed made at a ble were all States, supra 522 F.2d note operational Downs v. United and involved con- than level rather (“the question concerning the important prac- ex- basic at 997 more or less siderations it, liability Government for such com- govern- it forecloses intrusions on such prerogatives policy mental mon-law torts as an automobile collision decision,19 planning pro- and initiation of negligence employee caused of an activities,20 and execution there- grams and administering agency.”25 ... The official instructions21 of in accordance with exemption designed liability was not to bar courts, federal applied by As other personal injury negligently for inflicted exemption fairly broad.22 range of government upon an inmate of employee however, not, exemption could have prison,26 liability a federal death very purpose been to subvert intended *21 stemming negligence govern- from the of a subjection adopted: for which the Act was highjacked with a agent dealing ment liability damages of the United States to deemed be- judicially aircraft.27 Situations ex- “in the same manner and to same ambit, notwithstand- yond exemption’s under like cir- private tent as a individual ing of some element of discre- involvement when the latter “would be cumstances”23 tion, are both numerous and varied.28 liable to the claimant in accordance with suggest I the test formulated do place where the act or omis- the law necessarily pan- is in Eastern Air Lines As Dalehite itself ac- sion occurred.”24 perplexing problems acea for all of the knowledges, “the draftsmen Section [of exemption prone is 2680(a)] to relieve the did not intend plan). judgments implementation ception of riot control See also is whether the of a Govern- CAB, Holiday U.S.App. quality’ employee Tours v. 174 of ‘the nature and ment are Golden 6, 624, 292, beyond judicial Congress put 626 n. 6 294 n. 531 F.2d which review”) intended to D.C. (1976); States, supra (quoting United cases collected in Sami v. United Smith v. 17, 184, 4, 246) (citation omitted). States, supra U.S.App.D.C. at note 375 F.2d at note 199 617 F.2d at 766. 5, States, supra 19. Dalehite v. United note 346 36, 968, 2674(a) (1976), quoted supra at U.S. at 73 S.Ct. at 97 L.Ed. 1441. 23. 28 U.S.C. § note 1. 967-968, 34-36, L.Ed. at 20. Id. at 73 at 97 S.Ct. 1440-1441. 1346(b) (1976). 24. 28 U.S.C. § 36, 968, Id. at 73 97 L.Ed. at 1441. 21. S.Ct. States, 5, supra note 346 25. Dalehite v. United 967, 1440; 34, 73 S.Ct. at 97 L.Ed. at U.S. accord, E.g., v. District of Redev. 22. Goddard Columbia States, F.Supp. v. United 137 Crouse 304, 306-307, Agency, U.S.App.D.C. Land 109 States, 47, (D.Del.1955); Sullivan v. United 49 343, 345-346, denied, U.S. 287 F.2d cert. 366 F.Supp. (N.D.Ill.1955). 129 713 See also 910, 1085, (1961) (timing 6 L.Ed. 235 81 S.Ct. 4, States, supra Downs v. United note 522 F.2d proceedings); Morton v. United condemnation at 995. 85, 431, States, 84, U.S.App.D.C. 97 228 F.2d denied, 975, (1955), U.S. 76 432 452, cert. 350 S.Ct. Muniz, supra 26. States v. note 8. (1956) (transfer prisoner 100 L.Ed. 845 to, in, prisoner 4, States, afforded federal medi supra and care note 522 Downs v. United center); Mfg. J.H. Rutter Rex Co. v. United cal F.2d at 994-998. States, 4, supra (delay note 515 F.2d at 98-99 Co., securing E.g., National Labor Relations Board in Eastern Air Lines v. Union Trust of compliance 10, 200-206, order); supra U.S.App.D.C. 221 with reinstatement Remin note 95 at traffic); 449, States, (6th (direction ga F.2d 457-458 F.2d at 73-79 of air Griffin v. United 631 States, 1059, (3d 1980) (“no respect hazard” determination v. United 500 F.2d 1063-1069 Cir. ing traffic, 1974) (compliance governing air and with standard television tower vis-a-vis Cir. marking guy wires); Slagle polio vaccine); require White v. United failure to release Cir.1963) 1157, (9th States, 13, (4th (su per 612 F.2d 1162 Cir. 317 F.2d 16-18 v. United Moyer 1980) (decision sys patient); type v. Martin of communication of mental vision Marietta 585, (5th drug Corp., informants 481 F.2d 594-598 Cir. tem to be maintained between 1973) injec contacts); (design aircraft their Monarch Ins. v. Dis and manufacture of and Co. 1249, Columbia, seat); DeCamp, F.Supp. F.2d tion United States v. 478 trict of 1256-1259 97, 1188, (9th Cir.), denied, aff'd, (D.D.C.1973), U.S.App.D.C. cert. (1973) denied, cert. 419 U.S. 95 S.Ct. U.S. (observance 94 S.Ct. 38 L.Ed.2d 158 F.2d safety regulation). (1974) (formulation 42 L.Ed.2d activities, courts have Concededly, many to breed.29 nature of held that medi- clearly be exemption yet fully by governmental personnel cal decisions are defined, yet and its boundaries are to be beyond pale,31 strongly its and for reasons Nevertheless, firmly marked. the matter appealing Ordinarily, to me. medical deci- on which I my colleagues hardly differ from any sions do not involve consideration of seems require greater clarity precision public policy;32 normally, they interests or than already Eastern Lines affords. predicated upon having factors medical subject disagreement type of our is the only. person- value Governmental medical of judgment procedures summoned may required prescribed nel to observe established for issuance of airman medical procedures apply prescribed and to stan- certificates, simple adherence to East- dards, judgments their but end usual- think, ern Air guiding principle, Lines’ I facts, ly upon medically-significant rest word, leads to a sound conclusion. In a skill, knowledge and medical proce- need determine whether those phenomena, not unlike rendered in those dures called for “exercise of sure, private medical sector.33 To be or discretion of a character.”30 public invariably medical determinations draw on *22 discretion, govern- but medical rather than

II judgment mental is what is uti- generally discretionary Whatever the reach of the When no “exercise of judgment lized.34 function exemption respect public to other discretion of a character” is discerni- 1952) Reynolds, Discretionary (treatment by Army physician); 29. See Function Moon v. Act, Exception States, 140, F.Supp. (D.Nev. of the Federal Tort Claims 57 United 512 144 (1968). 1981) 81 (diagnosis by Geo.L.J. and treatment Veterans psychiatrists); Administration Rufino v. United States, 132, supra my F.Supp. (S.D.N.Y.1954) Though 30. See text at 126 136 note 11. col- leagues (insulin guiding therapy mention “the distinction be- at Veterans Administration duties,” ‘planning’ ‘operational’ States, hospital); tween F.Supp. Hunter v. United 236 600, States, Maj.Op. citing 411, (M.D.Tenn.1964) (diagnosis by at Sami v. United 412-413 supra 17, 183-184, U.S.App.D.C. note 199 at prison physician). Sometimes decision- 765-766, they 617 F.2d at apply seemingly the test undertake to upon weigh public maker is called as well as espouse. is I considerations, the one medical which event a differ- 600, Maj.Op. at 603-604 nn. 18-19. & See, may e.g., ent result be warranted. Smart States, 841, (10th v. United 207 F.2d 842-843 1953); States, States, 844, compare E.g., Supchak Cir. White v. United 317 31. v. United 365 F.2d (3d (examination 13, (4th Cir.1963). Cir.1966) 845-846 Veter F.2d 17-18 officer); ans Administration medical Rise v. States, 1068, (5th United 31, 630 F.2d 1072 Cir. States, supra 32. See Rise v. United note 63 1980) (decision by Army pa physician to refer 0 1070; 31, Kelly, supra F.2d at Jackson v. note private hospital); tient to Underwood v. United 739; 738, States, Doyle 557 F.2d supra v. United States, 92, (5th Cir.1966) (failure F.2d 356 98 1283; 31, F.Supp. note 530 v. Moon psychiatrist mentally-ill treating Air Force first 31, States, supra F.Supp. United note 512 psychiatrist, airman to inform second Air Force treatment, who took over of airman’s threats States, life); Costley on wife’s v. United 181 States, 31, Costley supra 33. See v. United note 723, (5th Cir.1950) (injection F.2d 724-725 ad 725; Kelly, supra 181 F.2d at Jackson v. note Army hospital); Kelly, ministered in Jackson v. 31, 738, 557 F.2d at 735, (10th 1977) 557 F.2d 737-739 en banc Cir. (treatment by physician); Griggs Air Force v. 31, Kelly, supra 34. See v. note 557 Jackson States, 1, (10th Cir.1949), United 178 F.2d 3 Compare Spencer F.2d at 738-739. General grounds rev’d on other sub nom. Feres v. Unit 48, 58, 479, Hosp., U.S.App.D.C. 138 425 F.2d States, 153, ed 340 U.S. 71 S.Ct. 95 L.Ed. J., (en 1969) (Wright, concurring) 489 banc (1950) (treatment by Army person 152 (“[tjhis say performance is not to that the of an nel); States, Doyle F.Supp. v. United 530 operation does not involve and dis- (C.D.Cal.1982) (diagnosis by Army 1284-1285 medical, govern- point cretion. The is that States, psychiatrist); Dishman v. United mental, judgment involved”) and discretion are F.Supp. (D.Md.1950) (treatment 570-571 Bluemink, (emphasis original); Henderson v. physician); Griga Veterans Administration 161, 164-165, U.S.App.D.C. 511 F.2d F.Supp. lauskas v. United (D.Mass. (1974). 1951), aff'd, (1st 195 F.2d Cir. case, ble, however, exemp- neurologic no basis for invocation of the standard left Surgeon tion is the Air a limited present. policy judgment appellant’s as to whether medical condition support in this circuit amply Decisions perform would allow him to safely the rationale. In Hitchcock v. this pilot.”43 They duties of a commercial ex- States,35 we held the discretionary plain: negli- to a claim of exemption inapplicable decision, making Surgeon gence upon based a failure to inform a how, had to evaluate and the likelihood given pre-exposure woman rabies immu- that, would have future neuro- injections of nization risks incidental there- logic problems impinge that could on his physician-patient to —a violation of the performance Then the pilot. We “read section 2680 duty.36 and Dalehite possible had to calculate the ef- that, progeny and its to establish the rule problems fects of the on air safety.44 government negligently where acts just testing This was not a matter of considera- public policy reasons unrelated to against known medical facts a clear medi- tions, injures;”37 ap- liable those it is reasons, cal For standard. these we con- test, plying that we found “that the acts specific clude that determinations of found actionable were not ‘so and omissions the Air Surgeon about fraught public policy with ... considera- neurologic fitness constituted an exercise tions’ as to render them with- of discretion under the terms of the ex- Factually of the Act.”38 meaning ception 2680(a).45 in 28 U.S.C. § closer to the case at bar is Duncan v. United States,39 where an airline pilot sought a deference, accept With I cannot this rea- regulations medical certificate under the in- soning. The Administrator the Federal here, holding negli- volved and the (FAA) empow- Aviation Administration *23 the certificate was gence denying beyond if, ered to issue an airman certificate after Duncan re- scope exemption.40 of the applicant he finds that investigation, upon lied Circuit’s decision in Second qualifications “possesses proper therefor States,41 Hendry v. United which reached for, physically perform and is able to respect with to a deter- same conclusion to, position for which pertaining duties by personnel mination federal medical that sought.”46 the airman certificate is FAA ship’s paranoid schizophrenic officer was a prescribe require- numerous regulations duty.42 and unfit for sea by applicants,47 including ments to be met medical certifi-

My colleagues Hendry, possession appropriate dismiss and with of an Duncan, statute,49 argument it on the that Pursuant the Adminis- cate.48 “[i]n elucidation, Supra they say: 35. note 17. 44. In further decision, Surgeon making the Air Canterbury Spence, U.S.App.D.C. 36. presumably such factors as the to consider 263, 772, denied, 1064, 464 F.2d cert. 409 U.S. pilot, responsibilities a commercial airline (1972). 93 S.Ct. 34 L.Ed.2d 518 aircraft, technology of the demands flight system, in the nation’s traffic inherent States, supra 37. Hitchcock v. United note backup personnel and the available and 207-208, U.S.App.D.C. at 665 F.2d at 363- equipment. 364. at n. 18. 363, quoting 38. Id. at 665 F.2d at Sami v. 45. supra Id. at 604. U.S.App.D.C. note 617 F.2d at 767. 1422(a)-(b) (1976). § 46. 49 U.S.C. F.Supp. (D.D.C.1973). 39. 355 (1982). 47. 14 61.1-201 §§ C.F.R. 40. Id. at 1169-1170. 61.3(c). (2d Cir.1969).

41. 418 F.2d 774 48. Id. § Id. at 779-783. (1976). 1344(d) 49. 49 U.S.C. Maj.Op. at 604 n. 18. delegated trator has to the Federal Air limited to certification or noncertification Surgeon authority “to issue or medical deny dependent upon applicant’s compliance certificates,” standards,54 but “to the extent neces- neurolog- with medical and the sary applicants to ... for and ic relevant here uniformly standards re- [e]xamine compli- holders of medical certificates for quire Surgeon’s “findings” to be standards; applicable ance with medical history appropriate, based on the case renew, [i]ssue, deny and .. . or medical qualified, judgment relating to the applicants certificates to and holders based True it condition involved.”55 is that with upon compliance noncompliance ap- or determination must be made in terms of the plicable medical standards.”50 The neuro- applicant’s ability safely perform standard logic applicable uniformly here imposed, privileges duties or exercise the specifies, to each of the three respect conferred, sought,56 certificate but a certificates, ap- classes medical straightforward reading regulations of the plicant must have confines that determination to the effect of disorder, other convulsive distur- applicant’s neurologic [n]o health on air consciousness, neurologic bance of or con- safety.57 It no more involves a discretion- dition the Federal Air ary public exercise of a character than a finds work, is too ill person conclusion or

(a) Makes the applicant motorboat, unable to operate a motor vehicle or or safely perform the duties or exercise enough is well to do so. I thus would privileges of the airman certificate that the medical proc- conclude certification that he holds or for apply- which he is wholly ess calls for a decision medical in ing; or nature, not for a judgment intercepted

(b) May reasonably expected, exemption. within years finding, two after the Ill

make him perform unable to those privileges; duties or exercise those Disagreement with my colleagues ap- findings are based on the case his- plication exemption neurologic tory appropriate, qualified, medical phase of airman medical certification does relating to the in- condition not, however, my alter outcome ap- on the volved.52 peal. The District Court did not consider all; instead, exemption carefully nothing requires permits I see appellant’s charges negligence decision on examined anything other *24 than medical considerations.53 The and held that none was authority delegated sustained expressly to the Federal Air evidence.58 review My leads me to conclude 67.25(a) (1982) supra (emphasis sup- 50. 14 C.F.R. 54. See text at note 50. plied). supra at 55. See text note 52. neurologic absolutely

51. Some conditions are disqualifying. 67.13(d)(2)(i) (first-class Id §§ supra at 56. See text note 52. certificate); 67.15(d)(2)(i) (second- certificate); (third-class 67.17(d)(2)(i) class tificate). cer- clarity regulations’ specifi- 57. Aside from of the cations, part medical certification is but a larger process ascertaining the much fitness 67.13(d)(2)(ii) (first-class 52. medical cer- §§ pilot process aircraft —a which fitness tificate); 67.15(d)(2)(h) (second-class medical certificate); 67.17(d)(2)(h) (third-class medical viewpoints other than medical is thor- oughly investigated. See 14 C.F.R. 61.1— §§ certificate) (emphasis supplied). (1982). 61.201 regulations explicit 53. if the less Even were 58. Beins v. United Civ. No. made, regard type of decision to be (D.D.C. Aug. 1981) (findings of fact and strange Congress im- would be pose indeed for law), Appendix experts responsibility conclusions of 1. on medical many requiring expertise determinations aspects safety. other of air And see note 57 infra. are not findings the court’s factual erroneous,59 legal nor its determina-

clearly dispose I would of the neuro- faulty.

tions and, basis, on this en-

logic-testing issue difficulty with to-

countering no further decision, I join affirmance

day’s judgment.

District Court’s MEDIA, INC., Appellant,

WEST COAST

FEDERAL COMMUNICATIONS

COMMISSION, Appellee, Musselman,

John B. Jonathan D.

Lewis, Intervenors.

No. 81-1548. Appeals, Court of

United States

District of Columbia Circuit.

Argued March

Decided Dec. *25 52(a).

59. See Fed.R.Civ.P.