695 F.2d 591 | D.C. Cir. | 1982
Lead Opinion
The plaintiff-appellant, D. Ross Beins, appeals a judgment of the district court for the government under the Federal Tort Claims Act (FTCA).
I. Factual Background
This case involves the Federal Aviation Administration’s (FAA) denial to a pilot, on five separate occasions, of an airman medical certificate, which he needed to resume his career as a commercial airline pilot.
Some understanding of the FAA certification procedures is necessary to follow appellant’s path through the application process.
The FAA issues medical certificates in three classes. The Federal Aviation Regulations set forth in detail the medical standards for each class of certificate. See 14 C.F.R. §§ 67.13, .15, .17 (1982). A captain of a commercial aircraft must have a first-class medical certificate, and a copilot or flight engineer must have at least a second-class certificate. See id. §§ 61.3(a), .3(c), .23, .123(c), .139, .151(e), .171, 63.3(a), 121.437(a)-(b). A third-class medical certificate will allow an airman to fly only as a private pilot. See id. § 61.103(c).
In most cases, the applicant for a medical certificate begins the process with an examination by a private physician who has been designated by the Air Surgeon to serve as an aviation medical examiner (AME). See id. § 67.23. The AME examines the applicant’s medical history and his current condition to determine whether he meets the medical standards set forth in the regulations. If the AME denies the certificate, the applicant has thirty days to petition the Air Surgeon for reconsideration. Id. § 67.-27(a). The Air Surgeon will often send an applicant’s file to expert consultants prior to making a final decision. A denial by the Air Surgeon or by certain other FAA officials is considered a denial by the Administrator, id. § 67.27(b), and is appealable to the National Transportation Safety Board (NTSB), 49 U.S.C. § 1422(b).
An applicant who fails to meet the medical standards may petition the Air Surgeon for a “special issue” certificate. 14 C.F.R. § 67.19 (1982). In these cases, the regulations give the Air Surgeon discretion to offer a special flight, test, or evaluation to determine whether the airman can perform his duties without endangering safety in air commerce. In acting on a petition for a “special issue” certificate, the Air Surgeon relies on the recommendation of a panel of consultant medical specialists. At the time of the events in this case, the special issue procedures were not applicable to pilots, copilots or flight engineers who suffered any of nine disqualifying conditions. Id. § 67.-19(d). Certain neurological problems were disqualifying, but a failure to meet the specific neurological standards cited by the Air Surgeon in his denials of appellant’s applications, see id. §§ 67.13(d)(2)(H), .15(d)(2)(H), •17(d)(2)(H), was not. Appellant also does not have normal fields of vision, which are required for a first or second-class certificate, but which have not been an absolute prerequisite to authorization under the special issue procedure.
B. Appellant's Applications for Medical Certification
Appellant, D. Ross Beins, began flying for United Air Lines in December 1966. He held a first-class airman medical certificate from 1966 through April 29, 1971. When appellant reapplied at that time for a first-class certificate the FAA declined to act until it could evaluate his hospitalization on
Physicians involved in appellant’s ease— then and since — have disagreed about the precise cause of the 1970 incident, and these differences have played a critical role in their conflicting views on both appellant’s later hemorrhage in 1974 and his overall fitness to be a pilot. Appellant was taken to the hospital early in the morning on May 8, 1970, after his wife, noticing that he was perspiring heavily and shivering, was unable to wake him. Appellant remained in the hospital for five days. The examining neurologist described appellant as having a tonic-clonic contraction. The treating physician wrote in appellant’s discharge summary that the patient had suffered a “syncopal episode of excessive muscle contractions; amnesia; stridulous breathing; etiology undetermined.” Beins v. United States, No. 79-3322 (D.D.C. Aug. 5, 1981) mem. op. at 2, reprinted in Appendix (App.) at 1, 2 [hereinafter cited as District Court Opinion].
Nonetheless, on October 15, 1971, after evaluating the 1970 incident, the FAA issued appellant a first-class medical certificate with operational restrictions. On October 5, 1972, the FAA granted appellant an unlimited first-class medical certificate. The FAA renewed the unlimited certificate for 1973 and 1974.
On November 19,1974, appellant suffered a spontaneous intracerebral hemorrhage. The major symptom of appellant’s hemorrhage was loss of his entire right field of vision in both- eyes. Appellant’s physicians promptly placed him in a hospital and administered an arteriogram (an X-ray photograph of arteries). The arteriogram showed one vascular malformation in the left rear of the brain, and suggested another smaller one in the left front region.
Dr. S.R. Winston performed a craniotomy on appellant. He removed a blood clot that was about two and a half inches inside the occipital lobe (located in the left rear of the brain). Dr. Winston also took out a smaller subdural hematoma (a swelling containing blood close to the brain surface) in the same area. Since Dr. Winston did not perform surgery in other regions of the brain, he could neither confirm nor deny the existence of other vascular malformations. In his summary diagnosis, however, Dr. Winston mentioned a possible left frontal microangioma (a small tumor composed chiefly of blood vessels) and a suspect right parietal (upper posterior wall) microangioma. After surgery, appellant had only a fifty percent field of vision on his right side. This improved in the following months, until by June 1975 his loss was only twenty-five to thirty percent. His condition appears to have stabilized at that point.
On November 11, 1975, appellant applied to an AME for a first-class airman medical certificate. After denial by the AME, appellant requested reconsideration by the Federal Air Surgeon. Appellant gave the FAA the hospital records relating to the surgery in 1974, medical documentation of the improvement in his field of vision, and authorization forms for the release of other information. Prior to acting on appellant’s application, the Air Surgeon sought the opinion of Dr. Sam Hunter, a neurosurgeon and an FAA consultant. Dr. Hunter recommended denial. On March 25, 1976, the Air Surgeon denied appellant’s application. The Air Surgeon’s letter to appellant explained that the decision was based on appellant’s intracranial hemorrhage and surgery, which resulted in a visual field defect, and appellant’s current use of anticonvulsant medicine. Appellant did not appeal the Air Surgeon’s denial to the NTSB.
On August 30, 1976, appellant applied again for an airman medical certificate, but this time he sought only a third-class rating. The Air Surgeon once more consulted Dr. Hunter, who again recommended denial. On March 10, 1977, the Air Surgeon denied appellant’s application because: “(1) he had had an intracerebral hemorrhage requiring surgery; (2) he had a visual field defect; (3) there was a continued risk of post-operative seizures; and (4) diagnostic studies revealed the presence of other vascular malformations, presenting the risk of further bleeding episodes.” District Court Opinion
On June 20,1977, appellant petitioned the FAA for an exemption from a neurological requirement, 14 C.F.R. § 67.17(d)(2)(ii) (1982), and for the issuance of a third-class airman medical certificate. The Air Surgeon referred appellant’s file to Dr. Thomas Auth, a neurologist and an FAA consultant. Dr. Auth concluded that appellant should not be certified for four reasons: a persisting electroencephalogram (EEG) abnormality in the left temporal lobe; risk of seizures; risk of rebleed; and the visual field defect. The Air Surgeon then forwarded appellant’s petition and file to a panel of consultants. The panel also recommended against certification, and on August 31, 1977, the Air Surgeon denied appellant’s request for an exemption. Appellant did not appeal to the NTSB.
In December 1977 appellant underwent an extensive physical examination, including a second arteriogram and a CAT Scan. The arteriogram was normal. The CAT Scan revealed an area of atrophy where the blood clot had been removed. Dr. Benjamin Boshes, the examining neurologist selected by appellant, reviewed these tests and others and concluded that appellant was not qualified for certification. Dr. Boshes believed that the ongoing spiking activity on the EEG’s over a period of seven years indicated a risk of seizure.
On April 21, 1978, appellant once again requested a first-class certificate. The Air Surgeon consulted Dr. Harold Stevens, a neurologist who is board-certified in electroencephalography. Dr. Stevens reviewed a report on the December 1977 CAT Scan, the reports of the various EEG’s, and the medical records pertaining to the 1970 and 1974 incidents. Dr. Stevens concluded that appellant’s request for certification should be denied because of both a pattern of abnormal EEG’s and the surgical scar in his brain. Dr. Stevens believed that the scar was a potential epileptogenic focus that presented a risk of seizure. On July 7, 1978, the Air Surgeon denied this fourth request for certification. The Air Surgeon’s denial cited appellant’s seizure disorder in 1970 and the scar from the hemorrhage and surgery in 1974. The Air Surgeon stated that the scar and the manipulation of the brain enhanced the probability of future seizures. Appellant did not appeal to the NTSB.
Appellant made his final application to the Air Surgeon for a first-class certificate on August 21, 1978, within two months of the fourth denial. The Air Surgeon denied the request on September 11, 1978. The Air Surgeon noted the same two reasons he had given in the previous denial, and added that appellant continued to have a visual field defect.
Appellant appealed this fifth denial to the NTSB. On February 19, 1980, after a hearing, the Administrative Law Judge found that appellant had met his burden of proving that he met the safety standards for third-class certification. He concluded: “Though Petitioner may not be entirely beyond the realm of some risk of future seizure activity, in view of his medical history, his age, and the absence [of] subsequent seizure activity and the relevant time duration thereof, it is the judgment here that such risk is minimal.” Defendant’s Exhibit No. 1 at 83-84.
The FAA appealed the Administrative Law Judge’s decision to the NTSB. After a hearing de novo, the NTSB affirmed the initial decision on October 17, 1980.
II. Jurisdiction and Exhaustion of Remedies
The government presses its objection on appeal that the district court lacked subject matter jurisdiction because the courts of appeals have exclusive jurisdiction under the Federal Aviation Act to review orders of the FAA. See 49 U.S.C. § 1486(a). The appellee contends that since the Administrator has delegated part of his statutory authority with respect to airman certification to the Air Surgeon, 14 C.F.R. § 67.25 (1982), the Air Surgeon’s decisions not to issue appellant a certificate were orders reviewable only by the courts of appeals pursuant to 49 U.S.C. § 1486(a).
We reject the government’s contention that there is no subject matter jurisdiction under the FTCA in this case. On its face the FTCA provides a remedy for negligent acts of government employees; none of the several explicit exceptions in the FTCA exempts negligent acts solely because the legal validity of the employee’s actions is appealable on other grounds to other administrative bodies or eventually to the courts through the Administrative Procedure Act (APA). See 28 U.S.C. §§ 1346(b), 2680. Nor does this case fall under a judicially established exemption such as the one the Supreme Court created in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).
(For substantive limitations, see § 2680(a)-(m). For administrative safeguards, see § 2401(b) (statute of limitations); § 2402 (denial of trial by jury); § 2672 (administrative adjustment of claims . . .); § 2673 (reports to Congress) [later repealed]; § 2674 (no liability for punitive damages or for interest prior to judgment); § 2675 (disposition by federal agency as a prerequisite to suit when claim is filed); § 2677 (compromise); § 2679 (exclusiveness of remedy).)
350 U.S. at 68, 76 S.Ct. at 126 (footnote omitted). This extensive list reflects considerable care by Congress in crafting when and how the FTCA would be available to a claimant; given this detailed statutory scheme, we are disinclined to add a jurisdictional exception or, as discussed'below, another exhaustion prerequisite.
Moreover, it is obvious that an appeal under the APA will not provide any remedy in damages, while the prime purpose of the FTCA is to compensate victims of negligent government conduct.
Our finding of jurisdiction is not necessarily the end of the government’s ar
In this case we cannot find an express requirement in either statute or case law that the appellant had to appeal the FAA’s denial of medical certification to the NTSB before he could initiate his FTCA action, nor any reason why we should now imply one. We acknowledge that a claim that the certification process was performed negligently might conceivably involve issues similar to those necessary to decide whether the certificate should have been denied. In addition, a successful administrative appeal would permit the appellant to return to work and so limit the extent of his damages. An administrative appeal could not, however, provide the damages remedy that appellant seeks here. It also would not address the question of negligence that appellant presses under the FTCA. Therefore, three of the standard benefits of requiring exhaustion of administrative remedies — permitting the agency to build a record on the issue for decision, to apply its expertise, and possibly to avoid judicial intervention through a finding for the complainant
The propriety of imposing any extra exhaustion hurdle on an FTCA claimant is also placed in question by the FTCA’s own exhaustion requirements. The FTCA requires claimants to notify the appropriate federal agency of their claims, and establishes a six month waiting period after notice, to provide the government time in which to make an administrative determination. 28 U.S.C. § 2675(a). Moreover, there is a two year statute of limitations on claims under the FTCA. Id. § 2401(b). The delay necessitated by waiting for the outcome of an appeal to the NTSB might place a tort action outside the FTCA’s own filing deadline. Indeed, in the one instance in this case where appellant did avail himself of the administrative process, that process took two years and four months, from the FAA’s fifth denial on September 11, 1978, to the Air Surgeon’s issuance of a second-class certificate on January 22, 1981.
There are, of course, ways in which a district court can accommodate an overlapping FTCA claim and an administrative appeal of a certification denial. If a district court believes that the results of an appeal of an adverse certification decision would be important to the FTCA action, it can stay the FTCA case pending the outcome. And the district court might well take into account a plaintiff’s failure to appeal the denial in the calculation of a damage award, i.e., the district court might
In short, an absolute requirement of exhaustion of APA administrative remedies, prior to initiating an FTCA suit, would be at odds with the FTCA’s integrated statutory scheme, would not serve the purposes of exhaustion because the administrative action would focus on neither the negligence issue nor the damages remedy, and could preclude the FTCA action altogether under the FTCA’s own statute of limitations. In this case, therefore, we find that appellant’s failures to appeal the first four denials of a medical certificate do not affect the district court’s authority to determine, nor our authority to review, the merits of his FTCA action.
III. The Discretionary Function Exemption
The government also argues that the United States is immune from suit because this case falls within 28 U.S.C. § 2680(a), the “discretionary function exception” to the FTCA, which states:
The provisions of this chapter and section 1346(b) of this title shall not apply to—
(a) Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
The “discretionary function exception” to the FTCA has been the focus of much litigation and the subject of many opinions. Following the Supreme Court’s broad but somewhat opaque construction of the exception in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), many courts, including our own, have endeavored to apply the guiding distinction between “planning” and “operational” duties. See, e.g., Sami v. United States, 617 F.2d 755, 765-66 (D.C.Cir.1979) (“operational” duties outside the exception even though they “inevitably require[ ] judgment and discretion”). We recognize, however, that labels like “operational” and “planning” are elastic. See Blessing v. United States, 447 F.Supp. 1160, 1173 n. 19 (E.D. Pa.1978).
One discernible theme in the myriad cases interpreting the discretionary exception, however, is to “hold[ ] the government responsible for any negligent execution of admittedly discretionary policy judgments where the decisions required for the execution did not themselves involve the balancing of public policy factors.” Sami, 617 F.2d at 766. See also Blessing, 447 F.Supp. at 1179 n. 28 (discussing and listing cases involving policy formulation and execution with regard to regulatory activity). In Sami we quoted a conclusion drawn in Blessing,
We also have the benefit of the experience of other courts which have grappled with the applicability of the discretionary
The Hendry court proposed three factors to assist in evaluating whether discretion exists for FTCA exemption purposes. First, one determines whether the complaint assails a rule formulated by an agency or only the way in which a rule is applied. • Second, the court noted that the higher the place in the government hierarchy of the person whose judgment is in question, the more likely that the official’s decision involves the type of discretion contemplated by the FTCA’s exception. Third, the language of the statute or regulation governing the decision may be relevant, insofar as it indicates that action is required if certain set standards are met or only instructs the decisionmaker to balance certain general considerations. See 418 F.2d at 782-83.
Portions of the Hendry analysis were used by the district court in Duncan v. United States, 355 F.Supp. 1167 (D.D.C. 1973). The core facts of Duncan parallel this case. The plaintiff in Duncan was a commercial pilot who sought damages under the FTCA for the alleged negligence of the FAA in failing to reissue him an airman medical certificate.
The court in Duncan ruled that the government would be liable if the decision on the pilot’s application for a certificate was negligently performed. Id. at 1170. Relying on Hendry, the court focused on
The Duncan court also explained why it was particularly concerned that the discretionary function exemption not be used in that case “to effect a mantle of protection for negligent action.” Id. at 1170. The Administrator’s regulations, the court pointed out, not only carried out his responsibility to promote air safety — they also effectively determined the livelihood of commercial airline pilots. This double effect imposed an “added burden” upon the government: “If the government assumes the responsibility of regulating the commercial air pilot occupation in furtherance of its ‘end-objective’ of securing air safety, it must do so in a careful manner.” Id.
We agree with the court in Duncan that the FAA’s refusal to issue an airman medical certificate to a qualified applicant does not necessarily constitute the exercise of a discretionary function, and thus does not preclude our jurisdiction under the FTCA. Nevertheless, since many courts have held “[vjarious licensing determinations ... [to be] discretionary rather than operational within the meaning of § 2680(a),” Hendry, 418 F.2d at 780, we must examine closely the specific FAA medical licensing regulations involved in this particular case to see whether the FAA had “discretion” within the terms of § 2680(a) to grant a medical certificate. Specifically, we must see whether the regulations instructed the FAA officials to weigh certain medical abnormalities and left a range of policy judgment as to whether to grant a license, or whether the officials were simply required to match these deficiencies against a clear medical standard contained in the regulations. Basically, if the FAA’s regulations allowed the Air Surgeon the discretion to grant a medical certificate after weighing certain public policy concerns that would also permit him to deny the certificate, his judgment would constitute an exercise of discretion not covered by the FTCA. See 28 U.S.C. § 2680(a).
The FAA’s regulations on “Medical Standards and Certification” are found at 14 C.F.R. § 67 (1982). The history of the standards reveals a careful effort to safeguard the public by establishing detailed and rigorous tests that all qualified pilots must meet. In 1956, the Civil Aeronautics Administration (the predecessor to the FAA) contracted with the Flight Safety Foundation, Inc. (FSF), a non-profit group with expertise in aviation safety, to evaluate the existing medical standards. The FSF’s recommendations relied on the evaluations of leading professional groups and individuals in appropriate medical specialties. The FSF’s report of March 31,1958, precipitated the adoption of new regulations on September 11, 1959, which continue in effect today in substantially the same form. See Delta Air Lines, Inc. v. United States, 490 F.Supp. 907, 915-16 (N.D.Ga.1980).
The regulations begin by establishing a class of applicants to whom medical certificates shall be issued:
*603 An applicant who meets the medical standards prescribed in this part, based on medical examination and evaluation of history and condition is entitled to an appropriate medical certificate.
14 C.F.R. § 67.11 (1982) (emphasis added). Like the court in Duncan, we find the language of entitlement to be significant: If the applicant meets the medical standards, he must be given a certificate — at that point in the certification process the FAA’s decision is not discretionary.
The next sections of the regulations establish the particular medical standards for first, second, and third-class certificates. See id. §§ 67.13, .15, .17. Some of the standards appear to leave little or no discretion of any kind to the FAA. For example, under § 67.13(b)(2), to meet the vision qualifications for a first-class certificate an applicant must have “[njear vision of at least v = 1.00 at 18 inches with each eye separately, with or without corrective glasses.” Other standards can be read to require medical judgment, but not the balancing of competing policy concerns associated with a discretionary decision. For example, § 67.-13(e)(l)(i) requires an applicant for first-class certification to have “[n]o established medical history or clinical diagnosis of [mjyocardial infarction.” We believe that the vision standards noted in the denials in this case, “[njormal fields of vision,” id. §§ 67.13(b)(4), .15(b)(3) (first and second-class certificates) and “[n]o serious pathology of the eye,” id. § 67.17(b)(2) (third-class certificate), fall in this second category. These standards require the FAA to evaluate a medical condition, not to weigh and balance conditions such as the effect of the vision problem on the pilot’s ability to perform his duties safely. Therefore, we con-elude that the determination of whether appellant met the vision medical qualifications relied on by the FAA in its denials did not involve a discretionary decision within the meaning of 28 U.S.C. § 2680(a).
Finally, we note that some medical standards do require the FAA to balance a medical judgment with a calculation of whether the applicant’s medical condition permits him to perform his duties safely. We believe that the neurological standard on which the FAA relied in denying appellant’s applications falls within this third group. The standard is the same for all three classes of certification. The applicant may not have any:
other convulsive disorder, disturbance of consciousness, or neurologic condition that the Federal Air Surgeon finds—
(a) Makes the applicant unable to safely perform the duties or exercise the privileges of the airman certificate that he holds or for which he is applying; or
(b) May reasonably be expected, within 2 years after the finding, to make him unable to perform those duties or exercise those privileges;
and the findings are based on the case history and appropriate, qualified, medical judgment relating to the condition involved.
14 C.F.R. §§ 67.13(d)(2)(H), .15(d)(2)(H), .17 (d)(2)(H) (1982). This language requires the Air Surgeon to use his medical judgment to determine whether the applicant suffers or has suffered a convulsive disorder, disturbance of consciousness, or neurologic condition. Then he must analyze the scope of any such problem. Finally, the Air Surgeon has to decide whether the condition would make the pilot unable to perform his duties safely at present or within two years. In this ease we find that this last step — the determination under this regulation of whether appellant’s possible
We hasten to emphasize that our decision in this case does not exempt from FTCA remedies any substandard medical or ad
As a consequence, many of appellant’s allegations of negligence are not excluded from judicial review under the discretionary function exception. Although the trial judge encountered some difficulty in obtaining from plaintiff’s counsel a satisfactory specification of the particular duties breached, see Trial Transcript (Tr.) at 253-70, our understanding is that the alleged negligence consisted of: (1) failing to provide complete and accurate materials to experts whom the FAA asked to analyze and report on appellant’s condition; (2) failing to base denials of certification on an accurate evaluation of appellant's current case history and condition; and (3) failing to apply accurately the experts’ reports and the FAA’s evaluations of appellant’s condition to the certification standards. Our application of the discretionary function analysis just discussed to this case would not exclude the first and second types of allegations, nor the third insofar as the complaints related to the vision standards. However, the exemption does foreclose appellant’s allegations that the Air Surgeon and his staff were negligent in applying professional findings (such as the EEG reports, evaluations of seizure potential and risk of rebleed, and analyses of the cause of the hematoma) to the question of whether appellant could perform his pilot duties safely. We turn next to those allegations of negligence not excluded by 28 U.S.C. § 2680(a).
IV. The Negligence Claim
The district court found “that the Air Surgeon was not negligent in denying plaintiff’s applications for airman medical certificates and that all such denials were based on substantial evidence and [were] entirely reasonable.” District Court Opinion at 9-10. We will not disturb that finding unless it is “clearly erroneous.” McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Daniels v. Hadley Memorial Hospital, 566 F.2d 749, 756 n. 49 (D.C.Cir.1977). As the Supreme Court noted, “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Gypsum Co., 333 U,S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). “Thus, a trial court’s finding will not be permitted to stand where it is based on a serious mistake as to the effect of evidence or is clearly contrary to the weight of the evidence.” Daniels, 566 F.2d at 757.
It is important first to pinpoint precisely what actions appellant claims constituted negligence. First, the acts challenged are those of the Federal Air Surgeon, FAA employees, and other U.S. Government personnel. As plaintiff conceded at trial, he is not attributing to the FAA any possible
Looking first at the allegations that the FAA failed to send necessary materials to its expert consultants, we agree with appellant that the FAA’s actions appeared at times less than confidence-inspiring. As detailed below, however, we conclude that the district court’s finding that they did not rise to the threshold of actionable negligence is not “clearly contrary to the weight of the evidence.”
A prime complaint of appellant is that the Air Surgeon sent Dr. Hunter, one of his consultants, only the reports of the pre-surgery arteriogram instead of the films themselves. But as the district court pointed out, “Dr. Hunter was satisfied with the reports and did not request the actual films.” District Court Opinion at 10. Dr. Hunter testified that he did not feel he needed to examine the films, and that it was customary in the field of neurosurgery to rely on the reports of qualified radiologists. Tr. at 353-54. The FAA could reasonably have expected Dr. Hunter to ask for the arteriogram films if the reports were insufficient.
Similarly, appellant attacks the failure of the FAA to send Dr. Stevens the CAT Scan films. The district court found that Dr. Stevens’ normal practice was to rely on the radiologist’s report of the CAT Scan, as he had in this case, and that Dr. Stevens did not change his medical opinion even after he saw the films. District Court Opinion at 11. In fact, Dr. Stevens stated at the trial that the films supported his opinion as to appellant’s lack of suitability for certification. Tr. at 397-98.
Finally, appellant alleges that the FAA provided the consultant group that considered his petition for exemption in 1977 with a “working paper” summary that contained inaccurate information. Appellant first complains that the summary termed his 1970 incident a seizure episode and then omitted mention of his recertification in 1971. Although the FAA would be advised to take greater care in identifying conflicting analyses when preparing such summaries, we find no evidence that the consultant panel was led astray. Appellant’s frustration with the conflicting explanations of the 1970 event is understandable, but we note that no single interpretation of the 1970 incident was accepted by all experts, even at the time of trial, see Tr. at 414-15 (testimony of Dr. Stevens), much less in 1977. Appellant’s own witness, Dr. Stuart Winston, admitted on cross-examination that he was not sure whether or not appellant had a seizure in 1970. Tr. at 211-13. Furthermore, the panel had a number of other reports and sources of primary evidence on which it could have based its recommendation for denial. Indeed, Dr. Bosh-es, a member of the panel, wrote in a letter dated February 25,1978, that the chief reason for the panel’s decision was that various EEG tests had shown active discharging foci in appellant’s brain. Defendant’s Exhibit No. 1 at 182. Even if the panel were in some way misled, the final decision on denial was made by the FAA, and appellant does not allege that the FAA was unaware of his recertification in 1971.
Appellant also complains that the summary the FAA provided the panel contained the false statement that the pre-operative angiogram (arteriogram) was provided to Dr. Hunter. Appellant argues that this misinformation led the panel to give undue weight to Dr. Hunter's opinion, which was based only on reports on the arteriogram. We agree with the district court that
The appellant’s second category of negligence concerns failures by the Air Surgeon and other government personnel to base denials of certification on an accurate evaluation of appellant’s current case history and condition. One complaint is that the Air Surgeon’s first and second denials were based on Dr. Hunter’s inaccurate reference to a one-half field visual loss, when the Air Surgeon’s files showed that appellant had only a one-quarter field loss of vision. We do not see how this error makes a difference. Even a one-quarter field loss of vision disqualifies an applicant for first and second-class certificates, and there is at least some question of whether it might be disqualifying, as a “serious pathology of the eye,” for third-class certification. Dr. Hunter stated at trial that the distinction between one-half and one-quarter field loss of vision would not have made any difference in his recommendation for denial to the Air Surgeon. Tr. at 364-65. Appellant stresses that the Air Surgeon later told him that his one-quarter field loss of vision was not a major concern, and suggests that the mistake about a one-half field loss cost him certification. We believe, however, that in the context of his overall evaluation of appellant’s condition, the Air Surgeon’s comment carries a different import: that the Air Surgeon was far more concerned about appellant’s neurological condition than his visual defect. In that event, even if the Air Surgeon had been negligent in his assumptions about the extent of appellant’s visual loss, and even if a one-quarter field loss would have been qualifying, we cannot conclude that the error caused the denial of certification.
Appellant also argues that the Air Surgeon’s first denial referred to appellant’s continued use of anti-convulsant medication, and that the Air Surgeon should have known from appellant’s medical file that appellant was no longer receiving such medication. We agree that the Air Surgeon’s error is troubling, but again we find no evidence that makes us think it made a difference. The Air Surgeon consulted with Dr. Hunter prior to the first and second denials, and Dr. Hunter’s testimony makes it clear that his recommendations were based on his analyses of appellant’s neurological problems and history. See Tr. at 354-56, 370-79. But we can find no reason to believe that the erroneous assumption that appellant required anti-convulsant medicine had much effect on Dr. Hunter’s analysis. He did not refer to the medicine in his testimony about his diagnosis. By way of analogy, we note that Dr. Boshes maintained his conclusion that appellant was unfit even after he learned that appellant was off the medication. See Tr. at 150-51 (testimony of D. Ross Beins); Defendant’s Exhibit No. 1 at 182.
Appellant’s next objection is that the Air Surgeon ignored appellant’s case history and current medical condition when he failed to conclude, at the time of the second and third denials, that appellant did not have vascular malformations. Appellant argues that the arteriogram taken in 1974 revealed this information. Furthermore, appellant believes that Dr. Auth’s conclusion that there were no malformations, made prior to the third denial, should have settled the question. Appellant contends that the Air Surgeon’s negligence compelled appellant to have another arteri
Appellant also asserts that the Air Surgeon ignored appellant’s actual medical condition when he based the fourth and fifth denials in part on post-surgical scarring, which the Air Surgeon believed enhanced the probability of seizures. Appellant argues that the Air Surgeon should have known that the CAT Scan did not reveal any scar. We believe that the contentions about the presence of the scar are similar to the disagreements about vascular malformations — -the reasonable judgments of medical experts on the issue differed. Clearly, Dr. Stevens, the expert with whom the Air Surgeon consulted prior to the fourth and fifth denials, believed that although the CAT Scan did not show a scar, it revealed a condition that would accompany a scar. Dr. Stevens explained that the CAT Scan revealed an absence of circulation of blood in an area of atrophy, and that “the consensus would hold that there is an accompanying scar.” Tr. at 401, 403. Dr. Stevens also stated that a cortical scar, such as he believed existed here, is a potential source of epilepsy. Tr. at 408. Appellant’s own expert witness, Dr. Winston, admitted on cross-examination that the destruction of brain tissue, such as occurred here, would leave “some adjacent reparative gliosis,” which he also stated some experts would term a scar. Tr. at 238. We believe it would be a mistake to overemphasize a debate about nomenclature, as appellant’s argument presses us to do. Whatever the term, the heart of Dr. Stevens’ diagnosis was that appellant’s condition created a risk of future seizure. We conclude, therefore, that the Air Surgeon reasonably based his denials on appellant’s current medical condition when he relied on Dr. Stevens’ expert report.
Finally, we review the last category of appellant’s allegations of negligence: the government’s failure to apply accurately the experts’ reports and the FAA’s evaluations of appellant’s condition to the certification standards. As we discussed above, appellant’s allegations pertaining to the application of the neurological standard in this case are precluded by the “discretionary function exemption” of 28 U.S.C. § 2680(a). We do not believe appellant has complained about the FAA’s specific act of applying the analyses of his visual condition to the standards. Insofar as he does make allegations about the FAA’s treatment of his visual problem, we have already discussed above why any possible errors were inconsequential to the decisions to deny certification.
In sum, we conclude that the district court’s finding of no negligence is not “clearly erroneous.” This is not to say that we do not find some of the Air Surgeon’s practices relating both to provision of medical materials to experts, and to assessment of appellant’s current medical condition to be troublesome. That is, in fact, the reason why we have conducted such an extensive review of the medical evidence. However, that review has served to convince us that none of the questionable practices contributed in any material respect to the Air Surgeon’s decisions not to certify appellant.
V. Exclusion of Expert Testimony
Appellant also urges reversal because the district court declined to permit one of ap
Fed.R.Evid. 702 lays down a two-part test for the admissibility of expert testimony: the witness must be qualified and he must be capable of assisting the trier of fact.
The qualification of a particular witness to testify as an expert is largely within the domain of the trial judge. Particular inquiries which may be appropriate in some cases may be inappropriate in others. The majority of this court think the matter should be left to the sound judicial discretion of the trial judge, with no more specific guidance than is contained in this opinion.
Jenkins v. United States, 307 F.2d 637, 645 n. 19 (D.C.Cir.1962) (en banc). The guidance provided by Jenkins includes the following: “a general practitioner may testify concerning matters within a medical specialty if his education or experience, or both, involves demonstrable knowledge of the subject,” id. at 643 (citation omitted); a skilled witness on a medical subject need not be duly licensed to practice medicine, id. at 644; and “if experience or training enables a proffered expert witness to form an opinion which would aid the jury, in the absence of some countervailing consideration, his testimony will be received.” Id.
[H] This case admittedly skirts the line where our deference to the trial judge gives way to our reading of the rule. The only evidence we have to support the exclusion of Dr. Taxay’s testimony as an expert in aviation medicine comes from his admission at trial that he was not Board certified in aviation medicine. See Tr. at 38-39. The government seeks to buttress the denial by noting that Dr. Taxay had not authored any publications in aviation medicine, and that his former designation as an AME had been revoked. Appellee’s Brief at 26-27. But neither of these facts is disqualifying per se. Possibly the district judge also thought that Dr. Taxay’s testimony would not be of assistance to him in his role as trier of fact. On the other hand, we note that from 1959 to 1963 Dr. Taxay served as an AME for the FAA. He was also a flight surgeon for the Air Force for two years. And Dr. Tax-ay has assisted pilots in their attempts to regain certification after denials in some 200 cases. Tr. at 31-36.
Fortunately, we do not need to decide whether the district court erred in its refusal to accept his expert qualifications, because we do not find the absence of Dr. Taxay’s testimony on aviation medicine to be prejudicial. A summary of the matters on which appellant proffered his testimony includes: (1) how appellant’s visual field loss should have been evaluated under good aviation medical certification practice; (2) four good certification practices relating to the inspecting of the arteriograms and the analysis of avascular malformations; (3) whether disqualifying grounds were given in the Air Surgeon’s denial letter of March 21, 1976; (4) Dr. Taxay’s assessment of the 1974 surgery as of the date of the first denial (March 26, 1976); (5) other physicians’ opinions on the possibility that pesticide exposure caused the 1970 incident; (6) whether the FAA’s medical file on appellant reflected if the FAA ever asked an expert in internal medicine to evaluate the 1970 incident; and (7) the significance of the Air Surgeon’s recertification after the incident. Appellant’s Opening Brief at 48-51.
We must conclude, after examining in detail the extensive record and expert testimony in this case, that the exclusion of these supplementary aspects of Dr. Taxay’s planned testimony does not amount to prejudicial error. The facts of this case are noticeably different than those in the cases cited by appellant in support of his argument for reversal. In Kosberg v. Washington Hospital Center, 394 F.2d 947 (D.C. Cir.1968) (per curiam), a wrongful death claim against a psychiatrist was completely stymied when the trial judge ruled that the physician who was plaintiff’s expert witness was not qualified to testify on the standard of care and its violation. Therefore, unlike the case at hand, the trial judge’s ruling in Kosberg gutted plaintiff’s attempt to establish the core elements of the action. Similarly, Baerman v. Reisinger, 363 F.2d 309 (D.C.Cir.1966), involved an appeal from a directed verdict in a medical malpractice case against a cardiologist where the excluded testimony from a general practitioner with experience in treating the plaintiff’s illness was offered to establish the standard of practice for similar practitioners. Unlike Baerman, Dr. Taxay’s testimony was not critical to educating the trial court in this case about how regulations should be applied and how the medical-administrative aspects of a certification system should be performed.
Because we do not find clearly erroneous the district court’s decision that the government did not act negligently in this case, and because we do not find the district court’s limitation of Dr. Taxay’s testimony to be reversible error, the judgment of the district court is
Affirmed.
. 28 U.S.C. §§ 1346(b), 2671 et seq.
. Our recitation of facts is drawn largely from the district court’s memorandum opinion. See Beins v. United States, No. 79-3322 (D.D.C. Aug. 5, 1981), reprinted in Appendix (App.) at 1 [hereinafter cited as District Court Opinion],
. Delta Air Lines, Inc. v. United States, 490 F.Supp. 907 (N.D.Ga.1980), contains an extensive discussion of both the FAA’s medical certification process and the background of its medical standards for pilots.
. As a last resort, an applicant with a disqualifying condition could ask the Administrator to exempt him from the regulation. The Administrator may grant an exemption from any rule or regulation “if he finds that such action would be in the public interest.” 49 U.S.C. § 1421(c).
. The NTSB concluded:
In sum, the Board concludes that the record supports the finding that the 1970 event was caused by insecticide poisoning and that petitioner does not have a seizure disorder; that the risk of a future subarachnoid hemorrhage is within acceptable limits for a third-class airman medical certificate; that the cause of petitioner’s 1974 subarachnoid hemorrhage has been adequately explored by Board-certified neurologists and a neurosurgeon thereby reducing the likelihood of a rebleed; and that petitioner’s visual defect is not at issue in this proceeding. Plaintiff’s Exhibit No. 12 at 14.
. 28 U.S.C. § 2680(a).
. Cases brought under the FTCA are tried to the court sitting without a jury. See id. § 2402.
. The government’s assertion that the Federal Air Surgeon’s decision not to issue a medical certificate is an order reviewable by the courts of appeals appears to be supported by 14 C.F.R. § 67.27(b)(2) (1982), which states that a denial of a medical certificate “[b]y the Federal Air Surgeon is considered to be a denial by the Administrator under [49 U.S.C. § 1422] of the Act.” The Administrator is authorized to issue and deny airman certificates by 49 U.S.C. § 1422. According to 49 U.S.C. § 1486(a), “[a]ny order, affirmative or negative, issued by the Board or Administrator under [the Federal Aviation Act], except any order in respect of any foreign air carrier subject to the approval of the President ..., shall be subject to review by the courts of appeals ... . ” Under 49 U.S.C. § 1422(b), the NTSB also has authority to review the denial of an airman certificate, and is not bound by findings of fact of the Administrator. See id. § 1903(a)(9). The NTSB’s order is subject to review by the courts of appeals. See id. § 1903(d).
. In Feres, the Supreme Court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where
. See Indian Towing, 350 U.S. at 68-69, 76 S.Ct. at 126-127, where the Court stated:
The broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of governmental activities in circumstances like unto those in which a private person would be liable and not to leave just treatment to the caprice and legislative burden of individual private laws.
. The government relies heavily on City of Rochester v. Bond, 603 F.2d 927 (D.C.Cir.1979), as authority for the proposition that the district court lacked subject matter jurisdiction in this case. In City of Rochester we decided that appellants, who objected to a radio antenna tower, could not file suit in the district court to set aside a “no hazard” determination by the FAA and a construction permit issued by the Federal Communications Commission (FCC). We found that Congress assigned exclusive jurisdiction to review orders of the FCC and FAA to the courts of appeals. See 603 F.2d at 934-37. City of Rochester is distinguishable from this case because an appeal from the FAA’s order would not have led to review of the negligence issue before the district court, nor could it have resulted in an award of damages.
In City of Rochester, appeal of the FCC’s and the FAA’s orders to the court of appeals would have provided an adequate means of reviewing appellants’ allegations in the district court suit, see 603 F.2d at 936, i.e., that the FAA failed to fulfill a notice requirement, violated the Federal Aviation Act and certain regulations, and together with the FCC, violated the National Environmental Policy Act of 1969. But in this case an appellate review would not have examined the allegation of negligence; it would only review the FAA’s certification denial to see if it was arbitrary and capricious, and supported by substantial evidence. See 5 U.S.C. § 706. The appellants in City of Rochester sought a remedy, setting aside the permits, that the court of appeals could have granted under the APA. Here, however, the appellant seeks a damage remedy, which he could not have received after an APA review regardless of the timeliness of his petition. Finally, as we noted in City of Rochester, 603 F.2d at 931, Congress is ordinarily assumed to intend special statutory review procedures to be the exclusive means of obtaining judicial review for the cases to which they apply. But here, Congress specifically established the FTCA to provide a plaintiff with monetary damages for negligent government action.
. Appellant did not appeal the Air Surgeon’s first four denials of appellant’s requests for certification. After the fifth denial, appellant appealed to the NTSB, which granted him a third-class certificate. The FAA moved quickly, after the NTSB decision, to reassess appellant’s qualifications, and the Air Surgeon made a special issuance of a second-class certificate in about three months. Appellant therefore had no reason to seek judicial review of the NTSB order, since he was able to resume commercial flying. Thus, at a minimum, even under an exhaustion requirement, appellant may claim damages for the twenty-eight month period he was exhausting administrative remedies (between the FAA’s fifth denial and the Air Surgeon’s favorable determination).
. See McKart v. United States, 395 U.S. 185, 193-95, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969) (discussing these three general purposes for the exhaustion doctrine).
. The court in Blessing induced this conclusion from an exhaustive survey of discretionary function cases. Over the course of 19 pages, the court provided yeoman’s service by cataIoging myriad cases and synthesizing their analyses into a few important propositions on the discretionary function exception. 447 F.Supp. at 1167-86.
. The pilot in Duncan also claimed that the United States interfered with his “prospective economic advantage.” The district court held that this assertion fell within 28 U.S.C. § 2680(h), which expressly excepts from the scope of the FTCA any claim arising out of “interference with contract rights.” 355 F.Supp. at 1169-71.
. In Duncan, the FAA had also revoked the pilot’s medical certificate because he had failed to furnish certain requested medical information. The pilot later submitted the requested information to the NTSB, which then dismissed the FAA’s complaint. After reviewing the medical reports the pilot submitted, the FAA denied the pilot recertification. The pilot appealed to the NTSB once more, and won again. The pilot’s claim for damages was based only on the later denial of certification, not on the earlier revocation decision.
. The word “entitled” in 14 C.F.R. § 67.11 also reflects the language of 49 U.S.C. § 1422(b), which states in pertinent part:
Any person may file with the Administrator an application for an airman certificate. If the Administrator finds, after investigation, that such person possesses proper qualifications for, and is physically able to perform the duties pertaining to, the position for which the airman certificate is sought, he shall issue such certificate. .. .
(Emphasis added.)
. We note that this neurologic regulation’s requirement that the Air Surgeon evaluate whether a condition will permit safe performance of duties distinguishes it from the exclusively medical standard involved in Hendry. The court in Hendry stated explicitly that:
[T]he statute and regulations governing the delicensing procedure do not appear to convey discretion to identify and consider public safety goals. The only discretion apparently contemplated is that inherent in the judgments of any medical doctor in private practice.
418 F.2d at 783. In this case, however, the neurologic standard left the Air Surgeon a limited policy judgment as to whether appellant’s medical condition would allow him to perform safely the duties of a commercial pilot. In making his decision, the Air Surgeon was presumably to consider such factors as the responsibilities of a commercial airline pilot, the technology of the aircraft, the demands inherent in the nation’s flight traffic system, and the available backup personnel and equipment. This decision was clearly different from one made by “any medical doctor in private practice.” For unlike the physician in private practice, “[t]he Federal Air Surgeon’s ‘client’ is .. . the public,” and “[sjafety is ... the hallmark of the airman certification procedures” under which he must operate. Delta Air Lines, Inc. v. United States, 490 F.Supp. at 909, 917.
. Thus, as we see it, our only difference with Chief Judge Robinson’s concurring opinion relates to whether the Air Surgeon’s final determination — that appellant’s neurologic condition made him unable to perform his pilot’s duties safely — involved any “exercise of judgment or discretion of a public character.” Concurring Opinion at 614 (footnote omitted) (quoting Eastern Air Lines v. Union Trust Co., 221 F.2d 62, 74-75 (D.C.Cir.), aff'd sub now. United States v. Union Trust Co., 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 799 (1955)). The concurrence emphasizes that the certification decision in this case involved only the application of medical standards, see Concurring Opinion at 615-616, and cites numerous medical treatment cases for the proposition that “many courts have held that medical decisions by governmental personnel are beyond [the] pale [of the discretionary function exemption], id. at 614 & n. 31. The concurring opinion also states that “a straightforward reading of the regulations confines [the Air Surgeon’s] determination to the effect of the applicant’s neurologic health on air safety.” Id. at 616 (footnote omitted).
With due deference, we continue to believe that the Air Surgeon’s medical certification decision as “to the effect of the applicant’s neurologic health on air safety” was a medical-administrative determination of a public character. This is not a medical treatment case involving allegations of malpractice. Instead, it involves the Federal Air Surgeon, a senior public official who “is responsible for the application of aviation medicine principles and knowledge for the safety and promotion of civil aviation.” FAA Position Description for the Federal Air Surgeon. To discharge his responsibility to help “prevent]] aircraft accidents,” the Air Surgeon is supposed to research, develop, and implement “medical fitness standards for civil airmen, and [enhance] the bioengineering aspects of aircraft design and aircraft operating procedures,” among other duties. Id. These are not matters over which private physicians exercise judgment. In this case, the Air Surgeon had to determine whether appellant was neurogically fit to fly members of the public in the nation’s air traffic system. This decision does not seem to us to be like that of a physician who determines whether his patient is fit to drive a car.
We agree, of course, that some of the certification standards the Air Surgeon must apply involve only medical judgment. But that does not mean that all medical-air safety evaluations can be reduced to a purely medical standard. In this case, the language of the standard dealing with neurologic capabilities instructs the Air Surgeon to evaluate neurologic conditions of uncertain predictability in light of the requirements of safe performance of duties over time. We must conclude that neurologic problems and their possible effect on air safety are sufficiently problematical so that the standard was drafted to leave the Air Surgeon the discretion to undertake this weighing in a case-by-case manner.
. Cf. Payton v. United States, 679 F.2d 475, 482-83 (5th Cir.1982) (en banc), where the court in an FTCA action parsed a statute providing for the hospitalization of mentally ill prisoners and found an operational, non-discretionary function, the examination of inmates, preceded a discretionary decision, the placing of an inmate in an institution. In the course of discussing a separate provision, the court also noted that an ultimate decision of the Parole Board to release a prisoner could be held discretionary while intermediate acts, like failing to forward requested material records to Board members, could be found sufficiently separable from the final decision on release to be held non-discretionary. Id. at 482 n. 6. But cf. id. at 483-87 (Tjoflat, X, dissenting) (the purposes of the “discretionary function exception” are frustrated by recognizing “jurisdiction of a claim based on an act antecedent to a discretionary act”).
. Fed.R.Evid. 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Concurrence Opinion
concurring:
I join in the court’s judgment and, save on one point, in its opinion. Though I agree on affirmance, I have difficulty with the court’s position on the relationship of the discretionary function exemption to neurologic testing in airman medical certification procedures. I thus write to elucidate my approach to questions of application of the exemption, and to explain my grounds for a different outcome thereon.
I
The Federal Tort Claims Act imposes liability in damages upon the United States for the wrongful acts or omissions of its
A quarter-century ago, when first confronted by the discretionary function exemption, this circuit heeded these teachings.
The discretionary function exemption thus emerged from Eastern Air Lines as a safeguard against interference, through the medium of a tort action, with “executive conduct involving the exercise of judgment or discretion of a public character.”
The exemption could not, however, have been intended to subvert the very purpose for which the Act was adopted: subjection of the United States to liability in damages “in the same manner and to the same extent as a private individual under like circumstances”
I do not suggest that the test formulated in Eastern Air Lines is necessarily the panacea for all of the perplexing problems the discretionary function exemption is prone
II
Whatever the reach of the discretionary function exemption with respect to other activities, many courts have held that medical decisions by governmental personnel are beyond its pale,
Decisions in this circuit amply support this rationale. In Hitchcock v. United States,
My colleagues dismiss Hendry, and with it Duncan, on the argument that “[i]n this case, however, the neurologic standard left the Air Surgeon a limited policy judgment as to whether appellant’s medical condition would allow him to perform safely the duties of a commercial pilot.”
In making his decision, the Air Surgeon had to evaluate how, and the likelihood that, appellant would have future neurologic problems that could impinge on his performance as a pilot. Then the Air Surgeon had to calculate the possible effects of the problems on air safety.44 This was not just a matter of testing known medical facts against a clear medical standard. For these reasons, we conclude that the specific determinations of the Air Surgeon about this appellant’s neurologic fitness constituted an exercise of discretion under the terms of the exception in 28 U.S.C. § 2680(a).45
With deference, I cannot accept this reasoning. The Administrator of the Federal Aviation Administration (FAA) is empowered to issue an airman certificate if, after investigation, he finds that the applicant therefor “possesses proper qualifications for, and is physically able to perform the duties pertaining to, the position for which the airman certificate is sought.”
[n]o other convulsive disorder, disturbance of consciousness, or neurologic condition51 that the Federal Air Surgeon finds
(a) Makes the applicant unable to safely perform the duties or exercise the privileges of the airman certificate that he holds or for which he is applying; or
(b) May reasonably be expected, within two years after the finding, to make him unable to perform those duties or exercise those privileges; and the findings are based on the case history and appropriate, qualified, medical judgment relating to the condition involved.52
I see nothing that requires or permits a decision on anything other than medical considerations.
Ill
Disagreement with my colleagues on application of the exemption to the neurologic phase of airman medical certification does not, however, alter my outcome on the appeal. The District Court did not consider the exemption at all; instead, it carefully examined appellant’s charges of negligence and held that none was sustained by the evidence.
. “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. ...” 28 U.S.C. § 2674 (1976). See also id. § 1346(b).
. See id. § 2680.
. The provisions of this chapter and section 1346(b) of this title shall not apply to—
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused....
Id. § 2680.
. As the Sixth Circuit has observed, “[¡judgment is exercised in almost every human endeavor. It is not the mere exercise of judgment, however, which immunizes the United States from liability for the torts of its employees.” Downs v. United States, 522 F.2d 990, 995 (6th Cir.1975) (footnote omitted). See also J.H. Rutter Rex Mfg. Co. v. United States, 515 F.2d 97, 99 (5th Cir.1975), cert. denied, 424 U.S. 954, 96 S.Ct. 1428, 47 L.Ed.2d 359 (1976); Smith v. United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967); Liuzzo v. United States, 508 F.Supp. 923, 930-931 (E.D.Mich.1981).
. 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The case emanated from an explosion of ammonium nitrate fertilizer produced in a federally-initiated and -controlled program for export to areas under military occupation following World War II.
. Id. at 32, 73 S.Ct. at 966, 97 L.Ed. at 1439.
. Id. at 34, 73 S.Ct. at 967, 97 L.Ed. at 1440 (footnote omitted).
. United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805, 815 (1963).
. Id. While this appeal draws in only the second part of § 2680(a) — the discretionary function exemption — the same congressional objective is easily discernible in the first part. See note 3 supra. There, by excepting “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid,” Congress “intended to preclude any possibility that the [Act] might be construed to authorize suit for damages against the Government growing out of an authorized activity, such as a floodcontrol or irrigation project, where no negligence on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious, or that the statute or regulation authorizing the project was invalid.” Dalehite v. United States, supra note 5, 346 U.S. at 29 n. 21, 73 S.Ct. at 964 n. 21, 97 L.Ed. at 1437 n. 21, quoting H.R.Rep. No. 1287, 79th Cong., 1st Sess. 5-6 (1945). See also Dupree v. United States, 247 F.2d 819, 824-825 (3d Cir.1957); Miller v. United States, 583 F.2d 857, 867-868 (6th Cir.1978).
. 95 U.S.App.D.C. 189, 200-206, 221 F.2d 62, 73-79, aff'd sub nom. United States v. Union Trust Co., 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 799 (1955).
. 95 U.S.App.D.C. at 202, 221 F.2d at 74-75 (emphasis supplied).
. Id. at 202, 221 F.2d at 75. This is not to be taken as a suggestion that the discretionary function exemption borrows the governmental-proprietary distinction from municipal law. Eastern Air Lines rejected that notion, id. at 201-202, 221 F.2d at 73-74, as the Supreme Court was later to do also. Indian Towing Co. v. United States, 350 U.S. 61, 65, 76 S.Ct. 122, 124, 100 L.Ed. 48, 53-54 (1955); Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 376-377, 1 L.Ed.2d 354, 358 (1957). To say that the exemption immunizes judgments “of a public character” is no more than to reflect the view that Congress did not. extend the assimilation of governmental and private liability to the point that it would support claims for damages based on discretionary exercises in areas wherein the courts have traditionally declined to substitute their judgment for that of the official to whom the discretion was confided.
. 95 U.S.App.D.C. at 202, 221 F.2d at 74-75.
. Id. at 202, 221 F.2d at 75.
. Id. at 205, 221 F.2d at 77. The court distinguished Daiehite on the ground that each of the acts there characterized as negligent was directed by the fertilizer-production and -distribution plan previously formulated. Id. at 204, 221 F.2d at 76-77. Indeed, the Daiehite Court itself declared that “[t]he decisions held culpable were all responsibly made at a planning rather than operational level and involved considerations more or less important to the practicability of the Government’s fertilizer program.” 246 U.S. at 42, 73 S.Ct. at 971, 97 L.Ed. at 1444.
. The Eastern Air Lines court likened its interpretation of the discretionary function exemption to Daiehite’s pronouncement that “[t]he ‘discretion’ protected by the section ... is the discretion of the executive or the administrator to act according to one’s judgment of the best course, a concept of substantial historical ancestry in American law.” 346 U.S. at 34, 73 S.Ct. at 697, 97 L.Ed. at 1440 (footnote omitted). That, said Eastern Air Lines, “is the ‘historic principle,’ referred to in the Government’s brief,” see text supra at note 11, “about which there can be no dispute.” 95 U.S.App.D.C. at 203 n. 15, 221 F.2d at 76 n. 15.
. Hitchcock v. United States, 214 U.S.App.D.C. 198, 207-208, 665 F.2d 354, 363-364 (1981); Sami v. United States, 199 U.S.App.D.C. 173, 184-185, 617 F.2d 755, 766-767 (1979). See also Majority Opinion (Maj.Op.) at 600.
. E.g., Smith v. United States, supra note 4, 375 F.2d at 248 (“[t]he United States is immune from liability in the present case not because of the mere fact that government officials made choices, but because the choices made affected the political (not merely the monetary) interests of the nation”); Miller v. United States, supra note 9, 583 F.2d at 866 (discretionary function exemption “does not insulate the Government from liability for all mistakes of judgment of its agents, but only for significant policy and political decisions, the types of governmental decisions which should not be circumscribed by customary tort standards”); Downs v. United States, supra note 4, 522 F.2d at 997 (“the basic question concerning the ex
. Dalehite v. United States, supra note 5, 346 U.S. at 36, 73 S.Ct. at 968, 97 L.Ed. at 1441.
. Id. at 34-36, 73 S.Ct. at 967-968, 97 L.Ed. at 1440-1441.
. Id. at 36, 73 S.Ct. at 968, 97 L.Ed. at 1441.
. E.g., Goddard v. District of Columbia Redev. Land Agency, 109 U.S.App.D.C. 304, 306-307, 287 F.2d 343, 345-346, cert. denied, 366 U.S. 910, 81 S.Ct. 1085, 6 L.Ed. 235 (1961) (timing of condemnation proceedings); Morton v. United States, 97 U.S.App.D.C. 84, 85, 228 F.2d 431, 432 (1955), cert. denied, 350 U.S. 975, 76 S.Ct. 452, 100 L.Ed. 845 (1956) (transfer of prisoner to, and care afforded prisoner in, federal medical center); J.H. Rutter Rex Mfg. Co. v. United States, supra note 4, 515 F.2d at 98-99 (delay of National Labor Relations Board in securing compliance with reinstatement order); Reminga v. United States, 631 F.2d 449, 457-458 (6th Cir. 1980) (“no hazard” determination respecting television tower vis-a-vis air traffic, and failure to require marking of guy wires); Slagle v. United States, 612 F.2d 1157, 1162 (9th Cir.1980) (decision on type of communication system to be maintained between drug informants and their contacts); Monarch Ins. Co. v. District of Columbia, 353 F.Supp. 1249, 1256-1259 (D.D.C.1973), aff'd, 162 U.S.App.D.C. 97, 497 F.2d 684, cert. denied, 419 U.S. 102, 95 S.Ct. 497, 42 L.Ed.2d 295 (1974) (formulation and implementation of riot control plan). See also Golden Holiday Tours v. CAB, 174 U.S.App.D.C. 292, 294 n. 6, 531 F.2d 624, 626 n. 6 (1976); cases collected in Sami v. United States, supra note 17, 199 U.S.App.D.C. at 184, 617 F.2d at 766.
. 28 U.S.C. § 2674(a) (1976), quoted supra note 1.
. 28 U.S.C. § 1346(b) (1976).
. Dalehite v. United States, supra note 5, 346 U.S. at 34, 73 S.Ct. at 967, 97 L.Ed. at 1440; accord, Crouse v. United States, 137 F.Supp. 47, 49 (D.Del.1955); Sullivan v. United States, 129 F.Supp. 713 (N.D.Ill.1955). See also Downs v. United States, supra note 4, 522 F.2d at 995.
. United States v. Muniz, supra note 8.
. Downs v. United States, supra note 4, 522 F.2d at 994-998.
. E.g., Eastern Air Lines v. Union Trust Co., supra note 10, 95 U.S.App.D.C. at 200-206, 221 F.2d at 73-79 (direction of air traffic); Griffin v. United States, 500 F.2d 1059, 1063-1069 (3d Cir.1974) (compliance with standard governing release of polio vaccine); White v. United States, 317 F.2d 13, 16-18 (4th Cir.1963) (supervision of mental patient); Moyer v. Martin Marietta Corp., 481 F.2d 585, 594-598 (5th Cir.1973) (design and manufacture of aircraft injection seat); United States v. DeCamp, 478 F.2d 1188, 1191-1192 (9th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 232, 38 L.Ed.2d 158 (1973) (observance of safety regulation).
. See Reynolds, The Discretionary Function Exception of the Federal Tort Claims Act, 57 Geo.L.J. 81 (1968).
. See text supra at note 11. Though my colleagues mention “the guiding distinction between ‘planning’ and ‘operational’ duties,” Maj.Op. at 600, citing Sami v. United States, supra note 17, 199 U.S.App.D.C. at 183-184, 617 F.2d at 765-766, the test they undertake to apply seemingly is the one I espouse. See Maj.Op. at 600, 603-604 & nn. 18-19.
. E.g., Supchak v. United States, 365 F.2d 844, 845-846 (3d Cir.1966) (examination by Veterans Administration medical officer); Rise v. United States, 630 F.2d 1068, 1072 (5th Cir.1980) (decision by Army physician to refer patient to private hospital); Underwood v. United States, 356 F.2d 92, 98 (5th Cir.1966) (failure of Air Force psychiatrist first treating mentally-ill airman to inform second Air Force psychiatrist, who took over treatment, of airman’s threats on wife’s life); Costley v. United States, 181 F.2d 723, 724-725 (5th Cir.1950) (injection administered in Army hospital); Jackson v. Kelly, 557 F.2d 735, 737-739 (10th Cir. en banc 1977) (treatment by Air Force physician); Griggs v. United States, 178 F.2d 1, 3 (10th Cir.1949), rev’d on other grounds sub nom. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (treatment by Army medical personnel); Doyle v. United States, 530 F.Supp. 1278, 1284-1285 (C.D.Cal.1982) (diagnosis by Army psychiatrist); Dishman v. United States, 93 F.Supp. 567, 570-571 (D.Md.1950) (treatment by Veterans Administration physician); Grigalauskas v. United States, 103 F.Supp. 543, 548 (D.Mass. 1951), aff'd, 195 F.2d 494 (1st Cir. 1952) (treatment by Army physician); Moon v. United States, 512 F.Supp. 140, 144 (D.Nev. 1981) (diagnosis and treatment by Veterans Administration psychiatrists); Rufino v. United States, 126 F.Supp. 132, 136 (S.D.N.Y.1954) (insulin therapy at Veterans Administration hospital); Hunter v. United States, 236 F.Supp. 411, 412-413 (M.D.Tenn.1964) (diagnosis by prison physician). Sometimes the decision-maker is called upon to weigh public as well as medical considerations, in which event a different result may be warranted. See, e.g., Smart v. United States, 207 F.2d 841, 842-843 (10th Cir. 1953); compare White v. United States, 317 F.2d 13, 17-18 (4th Cir.1963).
. See Rise v. United States, supra note 31, 630 F.2d at 1070; Jackson v. Kelly, supra note 31, 557 F.2d 738, 739; Doyle v. United States, supra note 31, 530 F.Supp. at 1283; Moon v. United States, supra note 31, 512 F.Supp. at 144.
. See Costley v. United States, supra note 31, 181 F.2d at 725; Jackson v. Kelly, supra note 31, 557 F.2d at 738, 739.
. See Jackson v. Kelly, supra note 31, 557 F.2d at 738-739. Compare Spencer v. General Hosp., 138 U.S.App.D.C. 48, 58, 425 F.2d 479, 489 (en banc 1969) (Wright, J., concurring) (“[tjhis is not to say that the performance of an operation does not involve judgment and discretion. The point is that medical, not governmental, judgment and discretion are involved”) (emphasis in original); Henderson v. Bluemink, 167 U.S.App.D.C. 161, 164-165, 511 F.2d 399, 402-403 (1974).
. Supra note 17.
. Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772, cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972).
. Hitchcock v. United States, supra note 17, 214 U.S.App.D.C. at 207-208, 665 F.2d at 363-364.
. Id. at 207, 665 F.2d at 363, quoting Sami v. United States, supra note 17, 199 U.S.App.D.C. at 185, 617 F.2d at 767.
. 355 F.Supp. 1167 (D.D.C.1973).
. Id. at 1169-1170.
. 418 F.2d 774 (2d Cir.1969).
. Id. at 779-783.
. Maj.Op. at 604 n. 18.
. In further elucidation, they say:
In making his decision, the Air Surgeon was presumably to consider such factors as the responsibilities of a commercial airline pilot, the technology of the aircraft, the demands inherent in the nation’s flight traffic system, and the available backup personnel and equipment.
Id. at n. 18.
. Id. at 604.
. 49 U.S.C. § 1422(a)-(b) (1976).
. 14 C.F.R. §§ 61.1-201 (1982).
. Id. § 61.3(c).
. 49 U.S.C. § 1344(d) (1976).
. 14 C.F.R. § 67.25(a) (1982) (emphasis supplied).
. Some neurologic conditions are absolutely disqualifying. Id §§ 67.13(d)(2)(i) (first-class medical certificate); 67.15(d)(2)(i) (second-class certificate); 67.17(d)(2)(i) (third-class certificate).
. Id. §§ 67.13(d)(2)(ii) (first-class medical certificate); 67.15(d)(2)(h) (second-class medical certificate); 67.17(d)(2)(h) (third-class medical certificate) (emphasis supplied).
. Even if the regulations were less explicit in regard to the type of decision to be made, it would be strange indeed for Congress to impose on medical experts the responsibility of determinations requiring expertise in the many other aspects of air safety. And see note 57 infra.
. See text supra at note 50.
. See text supra at note 52.
. See text supra at note 52.
. Aside from clarity of the regulations’ specifications, medical certification is but a part of the much larger process of ascertaining fitness to pilot an aircraft — a process by which fitness from viewpoints other than medical is thoroughly investigated. See 14 C.F.R. §§ 61.1— 61.201 (1982).
. Beins v. United States, Civ. No. 79-3322 (D.D.C. Aug. 5, 1981) (findings of fact and conclusions of law), Appendix 1.
. See Fed.R.Civ.P. 52(a).