*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.
(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
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.
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)).
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,
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,
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.
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,
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.
41.
(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.