Lead Opinion
Opinion by Judge McKEOWN; Concurrence by Judge FERGUSON
This case strikes at the heart of one of the discretionary functions of the United States Forest Service — formulating the nature and type of flight training required of firefighter pilots. At issue is whether the United States is immune from liability under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1994) (“FTCA”), for the Forest Service’s failure to require its contract pilots to undergo a specific type and form of training. Following a bench trial, the district court entered judgment for the families and estates of two pilots killed during a mission to drop retardant on a forest fire, finding that the Forest Service’s failure to require the training contributed to the deaths. The government appealed, arguing that the Forest Service’s conduct is protected by the discretionary function exception to the FTCA.
Background
The plaintiffs/appellees are the families and estates of two pilots, Robert Kelly and Randy Lynn, who died in 1994 when the airtanker they were using to drop flame retardant on a forest fire crashed in the Lolo National Forest, near Missoula, Montana. At the time of the accident, Kelly and Lynn were employed by Neptune, Inc., a company that contracted with the Forest Service to provide airtanker services to assist in fighting forest fires.
A. The Accident
On the day of the áccident, Kelly and Lynn, who were both well-qualified, experienced pilots, made several trips from an airtanker base in Missoula to drop retardant on various fires. All but the first mission were to fires in the Butler Creek area. While a lead plane aided Kelly and Lynn during their first few retardant drops, the Forest Service later redirected the lead plane to a higher priority fire. On the final run of the day, Kelly and Lynn were asked to perform a retardant drop on.a small fire adjacent to the main fire. After circling twice around the area, the airtanker veered from the flight path and then crashed. Both phots died at the scene.
B. Aviation Safety and the Forest Service
As part of its broad mandate from Congress, the Forest Service, through delega
The Forest Service issues regulatory guidance, policies, and directives, including the Forest Service Manual. Critical directives relating to aviation management are in section 5700 of that manual. Section 5700 requires “[i]mpIement[ation] and administ[ration] [of] a national aviation safety program including but not limited to service-wide standards for pilot and aircraft approval, training and accident prevention.”
In addition to the manual, the Forest Service issues other policies and guidance through a variety of other documents. •Relevant to air safety, the USDA Forest Service Aviation Management Strategy 1991 (the “Management Strategy”) gave guidance for developing local aviation management plans, including the national aviation safety program. Witnesses testified at trial that the Management Strategy was Forest Service policy and that management was required to follow it.
The Management Strategy included the Aviation Accident Prevention Program (the “Accident Plan”), which provides, in relevant part:
It is management’s responsibility to monitor contract and employee pilot performance and provide every opportunity for pilots to expand their knowledge and cultivate their skills. While proficiency training is regarded by management as a productive means to accomplish this, a concentrated effort must be placed on the human factor aspect of pilot performance. Human factor information allows the pilots to better interface with the machinery and environment in which they operate. Therefore, human factor training must be identified as a significant aspect of the accident prevention plan.
(Emphasis added.) These two highlighted phrases are at the heart of the controversy here. The Accident Plan also states that “[mjethods and/or requirements used by the [Fire Service] to achieve this standard of safety are contained in published manuals, handbooks, guides, contracts, and operations plans.” Those documents do not, however, contain any requirement that contract pilots receive any human factor training, nor do any Forest Service documents mandate any specific type of human factor training.
A discussion of the various technical terms is in order. “Human factors” and crew resource management (“CRM”) are related concepts but are neither co-extensive nor synonymous. “Human factors” is a generic term for “a multi-disciplinary field devoted to optimizing human performance and reducing human error.” Federal Aviation Administration (“FAA”) Advisory Circular 120-51A at 3. As one expert put it, human factors focuses on “interaction and interfacing of the man, machine and media.” The FAA notes that CRM is “one way of addressing the challenge of optimizing the human/machine interface.” FAA Advisory Circular 120-51A at 4.
Trial witnesses testified that CRM training was developed to address the human tendency for the division of duties to break down when an unexpected situation arises, often with the result that even the most experienced crew members become preoc
As- part of its biannual Airtanker Elite Plane Remedial Conference, a workshop for airtanker pilots and others involved in aerial firefighting, the Forest Service sponsored a one-half day introduction to CRM, in lecture format. Otherwise, the Forest Service did not provide or require CRM training for its contract phots. Although the contract between the Forest Service and Neptune required contract pilots to have certain flight experience, certifications, and training, it did not require CRM training, nor did the Forest Service ask Neptune to provide such training.
According to the Forest Service, its evaluations of airtanker pilots during annual flight safety check rides included human factors concepts. Forest Service witnesses testified that both Kelly and Lynn consistently demonstrated proficiency in crew coordination. Both pilots had received some CRM training. Kelly attended the Forest Service’s one-half day seminar, as well as a three-day course, six months before the accident, which included human factors training (this training was independent of any action by the Forest Service). Although the record is not clear, at least one witness testified that Neptune provided Lynn with CRM training.
C. Procedural History
After the crash, the plaintiffs sued the government under the FTCA, alleging negligence by the Forest Service. Claiming that airtanker operations are inherently dangerous and thus that the Forest Service owed the pilots a duty of care, the plaintiffs argued that the Forest Service breached this duty by (1) failing to provide a lead plane for retardant drops; (2) failing to provide an air attack supervisor; (3) requesting a dangerous retardant drop; (4) failing to impose appropriate flight and duty limitations to prevent pilot fatigue; and (5) failing to provide CRM training for airtanker contract pilots. The government moved to dismiss the claims on the ground that the Forest Service owed no duty of' care to the phots and, that even if it did, the claims were barred by the discretionary function exception to the FTCA. The district court denied the motion with respect to lack of duty and deferred ruling on the discretionary function exception issue.
After a six-day bench trial, the district court concluded that all but the claim for negligent failure to require CRM training were barred by the discretionary function exception. The district court concluded that the Accident Plan mandated such training and removed all discretion. The district court then held that the Forest' Service’s failure to require CRM training was negligent and that this negligence contributed to the accident. After reducing the damages award by thirty percent to account for the pilots’ comparative fault, the district court entered judgment, awarding $2,616,039 to the Lynn plaintiffs and $883,934 to the Kelly plaintiffs. This appeal by the government followed.
Analysis
Whether the United States is immune from liability under the Federal Tort Claims Act is a question of law reviewed de novo. Fang v. United States,
The FTCA provides a broad waiver of the government’s sovereign immunity for “the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b) (Supp. IV 1998). In those cases, the government may be held liable for negligence “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. This waiver of immunity is limited, however; the government is not liable for claims
*760 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.
28 U.S.C. § 2680(a). This exception is commonly known as the "discretionary function" exception. "Where the exception applies, the court lacks subject matter jurisdiction." GATX/Airlog Co. v. United States,
In Berkovitz v. United States,
Under the first prong of the Ber-kovitz test, where the alleged conduct yb-lates a mandatory directive, whether by statute, regulation or policy, the conduct is not discretionary because there is no choice or judgment involved. See United States v. Gaubert,
A. The Forest Service's conduct here was discretionary.
The Forest Service's conduct-not requiring its contract pilots to have CRM training-was discretionary and, thus, the government satisfies the first prong of the Berkovite test. The plaintiffs point to no statute, regulation, or policy that mandates the Forest Service to require such training. Rather, the plaintiffs point only to two sentences in the Accident Plan:
[A] concentrated effort must be placed on the human factor aspect of pilot performance.... [H]uman factor training must be identified as a significant aspect of the accident prevention plan.
Although the Forest Service highlighted CRM concepts at the one-half-day seminar and evaluated human factors during check rides, the plaintiffs argue that the Accident Plan provision mandated the Forest Service not only to require CRM training, but a specific type of CRM training; that is, something more than CRM training in Icc-ture format. The district court agreed with the plaintiffs, concluding that "[t]he decision to identify and require `human factor' or `crew resource management' training is not discretionary."
The plaintiffs' argument, and the district court's conclusion, cannot be sustained. First and foremost, the Accident Plan provision does not `mention CRM training, let alone require a specific type of CRM training. The provision merely requires the Forest Service to "identif{y]" "human factor training" as a significant component of the accident prevention plan. The district court erred by treating "human factor" and "CRM" synonymously, and by substituting "require[d]" for "identified." Moreover, the Accident Plan does not define
We have repeatedly held that a general regulation or policy, like the Accident Plan here, does not remove discretion unless it specifically prescribes a course of conduct. For example, in Miller v. United States,
We have reached similar conclusions in other cases where broad mandates did not specify a course of conduct for the government to follow. See, e.g., Blackburn v. United States,
Other circuit courts have also concluded that a broad mandate does not foreclose discretion. See, e.g., Duke v. Dep’t of Agric.,
Despite these cases, the plaintiffs argue that this case is governed by Berkovitz and Faber v. United States,
We followed the Court's instruction in Faber,
The Forest Service had no choice but to follow the ... plan. The plan did not give the Forest Service the option to do nothing.... To the contrary, the plan listed three specific and mandatory measures that the Forest Service was to take in order to increase safety. . The Forest Service failed to implement all three.... Because the challenged conduct of the Forest Service was in direct contravention of a specifically prescribed federal policy, the discretionary function exception does not apply.
Id. (citation omitted); accord Childers,
But the Forest Service here did not fail to act in violation of a specific mandatory directive. The Accident Plan mandated only that the Forest Service identify hu-. man factor training as a significant aspect of its accident prevention plan-it did not mandate the Forest Service to require its contract pilots to have CRIVI training. Indeed, the Forest Service did include human factors training as part of its accident prevention program. In short, the Forest Service had discretion whether to require CRM training, a specific type of training that includes aspects of human factors training. Therefore, the government satisfies the first prong of the Berkovits test.
B. The Forest Service's conduct is susceptible to policy analysis.
The Forest Service's conduct also fits within the second prong of the Berko-vitz test as is susceptible to policy analysis.
We recently confirmed that “[t]his court and others have held that decisions relating to the ... training ... of employees usually involve policy judgments of the type Congress intended the discretionary function exception to shield.” Vickers v. United States,
We are not persuaded by the plaintiffs’ argument that policy-based judgment is not involved here because the Forest Service failed to follow industry safety standards and failed to act in the face of a known hazard-i.e., human factors error, which, the plaintiffs argue, is the leading factor in aviation accidents. As the plaintiffs point out, we have held that an agency’s failure to follow safety standards and failure to warn the public of known hazards created by the agency are not protected by the discretionary function exception. See, e.g., Sutton v. Earles,
Finally, the plaintiffs attempt to distinguish cases involving alleged failures to protect members of the public (which, they argue, involve policy considerations) from cases involving alleged failures to protect employees or contractors (which, they argue, do not involve policy considerations). In the context of aviation training, which surely affects the public as well as employees and contract workers, we find no support for this distinction, nor do we find it persuasive.
Conclusion
The district court erred by failing to dismiss this case for lack of subject matter jurisdiction. The Forest Service’s decision not to require its contract pilots to have a specific type of training is protected by the discretionary function exception to the Federal Tort Claims Act. Therefore, we REVERSE the district court and REMAND with direction to dismiss this ease for lack of subject matter jurisdiction.
Notes
. The government also appealed the district court’s finding of causation. Because the district court was without jurisdiction, we do not address this issue.
. Federal regulations list CRM and “human factors” as distinct areas of aeronautical knowledge. See 14 C.F.R. § 61.155(c)(ll) & (13) (2000).
. Because the district court concluded that the Forest Service's conduct was not discretionary, it did not reach this issue.
. Although the District of Columbia Circuit addressed the extent of training to provide to employees rather than contract workers, both decisions invoke policy considerations. In fact, because the contractor context necessarily involves the agency’s relationship with the contractor and considerations concerning the extent to which the agency should involve itself in training the contractor's employees, the contractor context invokes additional policy considerations.
. The plaintiffs also argue that the decision not to require CRM training was not grounded in policy considerations because the Forest Service could have delegated the costs of CRM training to the contractors. This "pass-through” argument does not avoid the basic policy considerations with respect to training. And, to be protected by the discretionary function exception, the conduct " 'need not actually be grounded in policy considerations' so long as it is, ‘by its nature, susceptible to a policy analysis.' ” Nurse,
Concurrence Opinion
concurring:
I concur in Judge McKeown’s opinion. I write to emphasize the facts surrounding the airplane crash.
On the final run of the day when they taxied out for takeoff, the pilots made mistakes, including failing to enter read back instructions from the central tower or communicate the read back to each other and crossing an active runway without permission from the traffic controller. However, they were extremely well-qualified and experienced pilots. Both of them had received some formal crew resource management (“CRM”) training and both pilots consistently demonstrated proficiency in crew coordination.
When Kelly and Lynn arrived at the fire, they entered a circular holding pattern and contacted ground firefighters for instructions. After receiving the requested drop pattern, the tanker left its orbit and began descending. At that point, something went wrong. The district court, adopting the findings of the government’s reconstruction expert, found that when the crew attempted to activate the tanker’s auxiliary jet engines in preparation for the run, the engines “flamed out,” probably because the crew had failed to transfer fuel from the plane’s main tanks to the outboard tanks while en route to the fire. The crew then attempted to re-start the engines by descending in order to gain airspeed, which would allow them to “air start” the jets without having to use the mechanical starter. In the process, however, both Kelly and Lynn became focused on trying to re-start the engines, and both lost “situational awareness” — meaning that neither one was paying attention to the surrounding terrain. During this time, the plane entered a narrow drainage at a dangerously low altitude. By the time the crew regained situational awareness and became aware of the danger, it was too late to turn around or climb out of the drainage. After jettisoning part of its retardant load, presumably a last-ditch effort to shed weight, the plane crash landed in thick timber at the upper end of the drainage. Both Kelly and Lynn survived the crash essentially uninjured, but were engulfed by flames while trying to escape the burning aircraft. Both men died of burns at the scene.
The cause of pilot error was 1) a captain who was worn out and fatigued and 2) a
If there ,is one thing that all of us learn from the time that we begin to walk, ride a tricycle, rollerskate, drive a car, pilot an airplane, it is to understand an absolute, imperative, simple basic rule — watch where you are going. Here, the pilots did not. The government cannot be faulted. The Federal Tort Claims Act does not make the Government an insurer.