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No. 09-47

 

In the Supreme Court of the United States

UNITED STATES AVIATION UNDERWRITERS,

INC., ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
MARK B. STERN
DANA J. MARTIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

QUESTION PRESENTED

Whether the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. 2680(a), bars peti tioners' tort action against the United States, which al leged negligent failure to warn pilots of unforecast tur bulence.

In the Supreme Court of the United States

No. 09-47

UNITED STATES AVIATION UNDERWRITERS,

INC., ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-6a) is reported at 562 F.3d 1297. The opinions of the district court (Pet. App. 7a-12a, 13a-29a) are reported at 567 F. Supp. 2d 1407 and 530 F. Supp. 2d 1315, respectively.

JURISDICTION

The judgment of the court of appeals was entered on February 11, 2009. A petition for rehearing was denied on April 16, 2009 (Pet. App. 30a-31a). The petition for a writ of certiorari was filed on July 9, 2009. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671-2680, provides a limited waiver of sover eign immunity for certain tort actions against the Uni ted States. The FTCA's waiver of immunity is subject to several express exceptions, see 28 U.S.C. 2680(a)-(n), including, as pertinent here, the "discretionary function" exception. 28 U.S.C. 2680(a). That exception provides that the FTCA shall not apply to:

Any claim * * * based upon the exercise or perfor mance or the failure to exercise or perform a discre tionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

Ibid.

An action comes within the discretionary function exception if (1) it "involves an element of judgment or choice," and (2) the "judgment is of the kind that the dis cretionary function exception was designed to shield." Berkovitz v. United States, 486 U.S. 531, 536 (1988). The first step of the inquiry focuses on whether a "fed eral statute, regulation, or policy specifically prescribes a course of action" as to the decision at issue. Ibid. The second step of the inquiry focuses "on the nature of the actions taken and on whether they are susceptible to policy analysis." United States v. Gaubert, 499 U.S. 315, 325 (1991); see United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984) (exception prevents "judicial second-guess ing" of decisions "grounded in social, economic, and po litical policy" (internal quotation marks omitted)).

2. On March 27, 2003, a small twin-engine aircraft crashed, killing the two pilots on board. Pet. App. 13a. Petitioners, the owner of the plane and its insurer, con tend that the crash was precipitated by the plane's en countering of unforecast "clear air turbulence" (CAT) of severe intensity. Id. at 13a-14a & nn.1 & 2; Pet. 4-5.

Petitioners filed suit against the United States to recover damages for losses they suffered as a result of the crash under the FTCA. Pet. App. 13a. Petitioners attribute the accident to the failure of the National Weather Service (NWS) to forecast severe CAT alleg edly occurring during the flight, and to the failure of the Aviation Weather Center (AWC) to issue an advisory to pilots about that turbulence. Petitioners relied upon an NWS policy directive (NWS Instruction 10-811) stating that an advisory to pilots, known as a Significant Meteo rological Advisory (SIGMET), "will be issued" when severe CAT and other weather hazards meeting speci fied criteria "occur or are expected to occur." Id. at 5a, 9a, 26a.

The United States moved to dismiss, arguing that petitioners' claim was barred by the discretionary func tion exception to the FTCA. The district court granted the motion with respect to petitioners' claim that the NWS negligently failed to forecast severe turbulence. The court explained that "[m]aking the weather forecast and determining whether a SIGMET * * * was hap pening or was going to happen is * * * conduct that the discretionary [function exception] protects." Pet. App. 28a. The district court denied the motion to dis miss as to petitioners' claim that the AWC breached its nondiscretionary duty to provide a warning to pilots once a "meteorologist determined that a SIGMET * * * warning was warranted." Id. at 29a.

The district court later granted summary judgment to the government on petitioners' remaining claim re garding the failure of the AWC to provide a warning to the pilots, based upon petitioners' concession that, in fact, the NWS had not forecast severe turbulence. Pet. App. 8a. The court reasoned that because the NWS never determined that severe turbulence was occurring or expected to occur, the nondiscretionary duty to issue a SIGMET and provide information to the pilot about the occurrence of such turbulence never arose. Id. at 12a.

3. The court of appeals affirmed. Pet. App. 1a-6a. The court explained that "[b]ecause the meteorologist must exercise his judgment when identifying weather patterns, forecasting 'involve[s] an element of judgment or choice,'" and thereby satisfies the first prong of the discretionary function analysis. Id. at 5a (alteration in original) (quoting Gaubert, 499 U.S. at 322). The court also agreed that "weather forecasts are the type of pol icy decisions that the discretionary function exception protects from liability under the FTCA." Ibid. Such forecasts and accompanying warnings, the court ex plained, implicate "cost and budgetary policy consider ations * * * and the dangers of over warning." Id. at 5a-6a. The court noted that, if NWS meteorologists had determined that severe turbulence was occurring or was likely to occur, issuance of a SIGMET warning by the AWC would have been required under the pertinent NWS instruction. Id. at 5a. But the court concluded that the "underlying determination of whether severe CAT is occurring is discretionary." Ibid. Thus, because NWS meteorologists did not make such a determination, the AWC's nondiscretionary duty to issue a SIGMET warning never arose.

ARGUMENT

The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals. Accordingly, review by this Court is not warranted.

1. The court of appeals correctly held, in accordance with well-established precedent, that the discretionary function exception bars petitioners' claims in their en tirety. See Monzon v. United States, 253 F.3d 567, 572 (11th Cir. 2001) (failure of the NWS to issue a warning regarding riptides was protected by the discretionary function exception), cert. denied, 535 U.S. 1035 (2002); Brown v. United States, 790 F.2d 199, 203 (1st Cir. 1986) (weather forecasting "[w]ithout question" constitutes a discretionary function), cert. denied, 479 U.S. 1058 (1987); National Mfg. Co. v. United States, 210 F.2d 263, 278 (8th Cir.) ("The forecasting or omission of fore casts * * * is a 'discretionary function' excepted from the [FTCA] by Section 2680(a)."), cert. denied, 347 U.S. 967 (1954). As these decisions have recognized, claims premised upon the forecasting of weather implicate both parts of the discretionary function inquiry: they involve the exercise of discretion, and they are "susceptible to policy analysis," United States v. Gaubert, 499 U.S. 315, 325 (1991).

a. Weather forecasting is fundamentally discretion ary in character and "involve[s] an element of judgment or choice." Pet. App. 5a (alteration in original) (quoting Gaubert, 499 U.S. at 322). As the court of appeals ex plained, the record below demonstrates that forecasting and identifying weather patterns "requires subjective evaluation by the meteorologist," and "[t]he meteorolo gist must weigh a number of factors and a range of avail able data." Ibid.; see id. at 27a-28a (district court noting that petitioners did not "isolate any rule or regulation that governs the development of weather forecasts or the determination of whether a meteorological event is taking place at any given moment," and concluding that "[a] forecaster must * * * exercise his or her judgment when identifying the weather pattern"); Brown, 790 F.2d at 204-205 (Pettine, J., concurring) (weather fore casting consists of a prediction determined by numerous and varied factors, none of which is necessarily determi native).

Petitioners argue that the discretionary function ex ception is inapplicable because the NWS's discretion regarding the forecasting and identification of weather patterns does not extend to the AWC's nondiscretionary duty to deliver a SIGMET warning to pilots "once the meteorologists determine that severe CAT is occurring or is likely to occur." Pet. 8 (quoting Pet. App. 5a). But that nondiscretionary duty was never triggered here, because NWS meteorologists never made the predicate determination that severe CAT was occurring. As the district court explained, "[b]ecause the Government nev er decided that significant CAT was occurring, the NWS Instruction never required a response." Pet. App. 12a. Thus, under the facts of this case, the AWC's duty to issue a SIGMET warning to pilots had no application.

Any suggestion by petitioners that the NWS had "knowledge that severe CAT was occurring or expected to occur" (Pet. 13), and that AWC was therefore re quired to issue a SIGMET warning to the pilots, is with out foundation. They cite no evidence that the NWS had any such knowledge or made any such determination, and the district court explicitly rejected that theory. See Pet. App. 12a ("the Government never decided that significant CAT was occurring"); see also id. at 11a ("[D]etermining whether moderate to severe CAT 'is occurring' requires discretion.").

b. It is likewise well-established that weather fore casting implicates the type of policy judgment that the discretionary function exception shields from liability. See Berkovitz v. United States, 486 U.S. 531, 536 (1988). As the court of appeals correctly determined, "[a] wea ther forecast is a classic example of a prediction of inde terminate reliability, and a place peculiarly open to de batable decisions, including the desirable degree of in vestment of government funds and other resources." Pet. App. 6a (quoting Brown, 790 F.2d at 204). Fore casting involves a number of policy-based consider ations, including "(1) cost and budgetary policy consid erations in the NWS' forecasting and warning services; (2) the general 'don't overwarn' policy in which the NWS strives for 'the highest rate of severe weather detection while maintaining the lowest possible false alarm rate in the issuance of warnings,' and (3) the policy of vesting discretion in the forecaster." Monzon, 253 F.3d at 572 (quoting Bergquist v. United States Nat'l Weather Serv., 849 F. Supp. 1221, 1228-1229 (N.D. Ill. 1994)).

Thus, because the only relevant NWS conduct chal lenged here (the fact that the NWS did not find that CAT was occurring or was expected to occur) was both discretionary and policy-based, the court of appeals properly affirmed the dismissal of petitioners' FTCA claims under the discretionary function exception.

2. The decision below does not conflict with any de cisions of this Court or of any courts of appeal.

Petitioners argue (Pet. 9-11) that the decision below is inconsistent with Berkovitz, 486 U.S. at 536, and In re Glacier Bay, 71 F.3d 1447, 1451 (9th Cir. 1995), because the court of appeals failed to analyze separately whether the NWS's failure to forecast turbulence, as well as the AWC's failure to warn of turbulence, each constituted discretionary functions. See Berkovitz, 486 U.S. at 536 (courts should analyze whether the agency conduct at issue involves "a matter of choice for the acting em ployee"); Glacier Bay, 71 F.3d at 1451 ("Each separate action must be examined to determine whether the spe cific actor had discretion of a type Congress intended to shield."). But contrary to petitioners' assertions, the courts below did analyze separately whether petitioners' allegations based on the asserted failure to forecast and on the asserted failure to warn each involved discretion ary conduct.

As to the asserted failure to forecast or identify tur bulence, the court of appeals held that the NWS's "un derlying determination of whether severe CAT is occur ring is discretionary." Pet. App. 5a; see id. at 27a-28a. It held that forecasting "involve[s] an element of judg ment or choice" and is "the type of policy decision[] that the discretionary function exception protects from liabil ity under the FTCA." Id. at 5a (citation omitted).

As to the asserted failure to warn of turbulence by issuing a SIGMET warning, the court of appeals specifi cally considered and rejected the applicability of the NWS Instruction requiring the issuance of SIGMET warnings. Pet. App. 5a. The court recognized that the directive to the AWC to issue a SIGMET warning ap plies only if the NWS, in its discretion, forecasts severe turbulence or determines that it is occurring. Ibid. Be cause this predicate discretionary determination was not

made here, no mandatory duty was implicated.1 See ibid.; see also id. at 11a-12a, 27a-28a (district court or ders finding that a mandatory duty to issue a SIGMET warning did not arise because the NWS did not deter mine, in its discretion, that turbulence was occurring or expected to occur). The court of appeals therefore had no reason to analyze separately whether the AWC's function of issuing warnings was discretionary in nature. See Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944) ("[O]pinions are to be read in light of the facts of the case under discussion."). Nothing about this common- sense reasoning is inconsistent with Berkovitz or Gla cier Bay.

3. Finally, there is no merit to petitioners' conten tion that the court of appeals' decision "expands the reach of the discretionary function exception." Pet. 12. Contrary to petitioners' assertion, the decision does not hold or suggest that every mandatory government activ ity becomes discretionary "if the government points to the exercise of discretion by some government employee somewhere in a chain of activities that leads up to a par ticular event." Ibid. Rather, the decision simply re flects the court's plainly correct understanding that a plaintiff cannot circumvent the discretionary function exception by invoking a mandatory government direc tive, unless that directive is applicable to the specific factual context presented.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
MARK B. STERN
DANA J. MARTIN
Attorneys

OCTOBER 2009

1 Petitioners themselves recognize this point when they observe that "if no severe CAT is identified by government forecasters, then no SIGMET warning is issued." Pet. 11.