467 U.S.

797
104 S.Ct. 2755
81 L.Ed.2d 660

UNITED STATES, Petitioner,

v.
S.A. EMPRESA de VIACAO AEREA RIO GRANDENSE
(VARIG AIRLINES) et al. UNITED STATES, Petitioner, v.
UNITED SCOTTISH INSURANCE CO. et al.
Nos. 82-1349, 82-1350.

Supreme Court of the United States

Argued Jan. 18, 1984.
Decided June 19, 1984.

Syllabus
The Federal Aviation Act of 1958 directs the Secretary of Transportation
to promote safety in air transportation by promulgating reasonable rules
and regulations governing the inspection, servicing, and overhaul of civil
aircraft. The Secretary, in her discretion, may prescribe the manner in
which such inspection, servicing, and overhaul shall be made. In the
exercise of this discretion, the Federal Aviation Administration (FAA), as
the Secretary's designee, has devised a system of compliance review that
involves certification of aircraft design and manufacture. Under this
certification process, the duty to ensure that an aircraft conforms to FAA
safety regulations lies with the manufacturer and operator, while the FAA
retains responsibility for policing compliance. Thus, the manufacturer is
required to develop the plans and specifications and perform the
inspections and tests necessary to establish that an aircraft design
comports with the regulations; the FAA then reviews the data by
conducting a "spot check" of the manufacturer's work. Part of the FAA
compliance procedure involves certification, whereby the FAA, if it finds
that a proposed new type of aircraft comports with minimum safety
standards, signifies its approval by issuing a type certificate. If an already
certificated aircraft's design undergoes a major change, the FAA, if it
approves the change, issues a supplemental type certificate. In No. 821349, a Boeing 707 commercial jet aircraft owned by respondent airline

was flying from Rio de Janeiro to Paris when a fire broke out in one of the
aft lavatories producing thick black smoke throughout the cabin. Despite a
successful effort to land the plane, most of the passengers on board died
from asphyxiation or the effects of toxic gases produced by the fire, and
most of the plane's fuselage was consumed by the post-impact fire.
Respondent airline's action against the United States under the Federal
Tort Claims Act (Act or FTCA) seeking damages for the destroyed
aircraft and a wrongful-death action by respondent families and
representatives of the deceased passengers under the Act were
consolidated in the Federal District Court. Respondents alleged that the
Civil Aeronautics Agency, the FAA's predecessor, was negligent in
issuing a type certificate for the Boeing 707 because the lavatory trash
receptacle did not satisfy applicable safety regulations. The District Court
granted summary judgment for the United States on the ground, inter alia,
that recovery against the United States was barred by 28 U.S.C. 2680(a),
which provides that the Act shall not apply to claims "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" (discretionary function exception). The Court of Appeals
reversed, holding, inter alia, that the discretionary function exception did
not apply. In No. 82-1350, an aircraft owned by respondent Dowdle and
used in an air taxi service caught fire in midair in the forward baggage
compartment, crashed, and burned, killing all the occupants. Respondent
Dowdle filed an action under the FTCA for property damage and
respondent insurance companies also filed an action under the Act seeking
reimbursement for moneys paid for liability coverage on Dowdle's behalf.
Respondents claimed that the Government was negligent in issuing a
supplemental type certificate for the installation of a gasoline-burning
cabin heater in the airplane that did not comply with the applicable FAA
regulations. The District Court in California, upon finding that the crash
resulted from defective installation of the heater, entered judgment for
respondents under the California "Good Samaritan" rule, and the Court of
Appeals affirmed.
Held: The actions are barred by the discretionary function exception of the
FTCA. Pp. 807-821.
(a) It is the nature of the conduct, rather than the status of the actor, that
governs whether the discretionary function exception applies in a given
case. Moreover, the legislative history discloses that such exception was
plainly intended to encompass the discretionary acts of the Government
acting in its role as a regulator of the conduct of private individuals.

Congress wished to prevent "second-guessing" of legislative and

administrative decisions grounded in social, economic, and political policy
through the medium of an action in tort. Pp. 807-814.
(b) Here, the discretionary function exception precludes a tort action based
upon the FAA's conduct in certificating the aircraft in question for use in
commercial aviation. The FAA's implementation of a mechanism for
compliance review is plainly discretionary activity of the "nature and
quality" protected by 2680(a). Judicial intervention, through private tort
suits, in the FAA's decision to utilize a "spot-checking" program as the
best way to accommodate the goal of air transportation safety and the
reality of finite agency resources would require the courts to "secondguess" the political, social, and economic judgments of an agency
exercising its regulatory function. It was precisely this sort of judicial
intervention that the discretionary function exception was designed to
prevent. It follows that the acts of FAA employees in exercising the "spotcheck" program are also protected by that exception, because respondents
alleged only that the FAA failed to check particular items in the course of
its review. Moreover, the risks encountered by these inspectors were
encountered for the advancement of a governmental purpose and pursuant
to a specific grant of authority. Pp. 814-820.
692 F.2d 1205 (9th Cir.1982) and 692 F.2d 1209 (9th Cir.1982), reversed.
Kenneth S. Geller, Washington, D.C., for petitioners.
Richard F. Gerry, San Diego, Cal., for respondents.
Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari in these two cases to determine whether the United States
may be held liable under the Federal Tort Claims Act, 28 U.S.C. 2671 et seq.,
for the negligence of the Federal Aviation Administration in certificating
certain aircraft for use in commercial aviation.

2* A. No. 82-1349
3

On July 11, 1973, a commercial jet aircraft owned by respondent S.A. Empresa
De Viacao Aerea Rio Grandense (Varig Airlines) was flying from Rio de
Janeiro to Paris when a fire broke out in one of the aft lavatories. The fire
produced a thick black smoke, which quickly filled the cabin and cockpit.
Despite the pilots' successful effort to land the plane, 124 of the 135 persons on

board died from asphyxiation or the effects of toxic gases produced by the fire.
Most of the plane's fuselage was consumed by a postimpact fire.
4

The aircraft involved in this accident was a Boeing 707, a product of the Boeing
Co. In 1958 the Civil Aeronautics Agency, a predecessor of the FAA, had
issued a type certificate1 for the Boeing 707, certifying that its designs, plans,
specifications, and performance data had been shown to be in conformity with
minimum safety standards. Seaboard Airlines originally purchased this
particular plane for domestic use; in 1969 Seaboard sold the plane to
respondent Varig Airlines, a Brazilian air carrier, which used the plane
commercially from 1969 to 1973.

After the accident respondent Varig Airlines brought an action against the
United States under the Federal Tort Claims Act seeking damages for the
destroyed aircraft. The families and personal representatives of many of the
passengers, also respondents here, brought a separate suit under the Act
pressing claims for wrongful death. The two actions were consolidated in the
United States District Court for the Central District of California.

Respondents asserted that the fire originated in the towel disposal area located
below the sink unit in one of the lavatories and alleged that the towel disposal
area was not capable of containing fire. In support of their argument,
respondents pointed to an air safety regulation requiring that waste receptacles
be made of fire-resistant materials and incorporate covers or other provisions
for containing possible fires. 14 CFR 4b.381(d) (1956). Respondents claimed
that the CAA had been negligent when it inspected the Boeing 707 and issued a
type certificate to an aircraft that did not comply with CAA fire protection
standards. The District Court granted summary judgment for the United States
on the ground that California law does not recognize an actionable tort duty for
inspection and certification activities. The District Court also found that, even if
respondents had stated a cause of action in tort, recovery against the United
States was barred by two exceptions to the Act: the discretionary function
exception, 28 U.S.C. 2680(a),2 and the misrepresentation exception,
2680(h).3

The United States Court of Appeals for the Ninth Circuit reversed. 692 F.2d
1205 (1982). The Court of Appeals reasoned that a private person inspecting
and certificating aircraft for airworthiness would be liable for negligent
inspection under the California "Good Samaritan" rule, see Restatement
(Second) of Torts 323 and 324A (1965), and concluded that the United
States should be judged by the same rule. 692 F.2d, at 1207-1208. The Court of
Appeals rejected the Government's argument that respondents' actions were

barred by 28 U.S.C. 2680(h), which provides that the United States is not
subject to liability for any claim arising out of misrepresentation. Interpreting
respondents' claims as arising from the negligence of the CAA inspection rather
than from any implicit misrepresentation in the resultant certificate, the Court
of Appeals held that the misrepresentation exception did not apply. 692 F.2d, at
1208. Finally, the Court of Appeals addressed the Government's reliance upon
the discretionary function exception to the Act, 28 U.S.C. 2680(a), which
exempts the United States from liability for claims "based upon the exercise or
performance or the failure to exercise or perform a discretionary function or
duty. . . ." The Court of Appeals viewed the inspection of aircraft for
compliance with air safety regulations as a function not entailing the sort of
policymaking discretion contemplated by the discretionary function exception.
692 F.2d, at 1208-1209.
B. No. 82-1350
8

On October 8, 1968, a DeHavilland Dove aircraft owned by respondent John

Dowdle and used in the operation of an air taxi service caught fire in midair,
crashed, and burned near Las Vegas, Nev. The pilot, copilot, and two
passengers were killed. The cause of the crash was an in-flight fire in the
forward baggage compartment of the aircraft.

The DeHavilland Dove airplane was manufactured in the United Kingdom in

1951 and then purchased by Air Wisconsin, another air taxi operator. In 1965
Air Wisconsin contracted with Aerodyne Engineering Corp. to install a
gasoline-burning cabin heater in the airplane. Aerodyne applied for, and was
granted, a supplemental type certificate4 from the FAA authorizing the
installation of the heater. Aerodyne then installed the heater pursuant to its
contract with Air Wisconsin. In 1966, relying in part upon the supplemental
type certificate as an indication of the airplane's airworthiness, respondent
Dowdle purchased the DeHavilland Dove from Air Wisconsin.

10

In the aftermath of the crash, respondent Dowdle filed this action for property
damage against the United States under the Federal Tort Claims Act.
Respondent insurance companies also filed suit under the Act, seeking
reimbursement for moneys paid for liability coverage on behalf of Dowdle.
The United States District Court for the Southern District of California found
that the crash resulted from defects in the installation of the gasoline line
leading to the cabin heater. The District Court concluded that the installation
did not comply with the applicable FAA regulations and held that the
Government was negligent in certifying an installation that did not comply with
those safety requirements. Accordingly, the District Court entered judgment for

respondents.
11

On appeal, the United States Court of Appeals for the Ninth Circuit reversed
and remanded for the District Court to consider whether the California courts
would impose a duty of due care upon the Government by applying the "Good
Samaritan" doctrine of 323 and 324A of the Restatement (Second) of Torts.
614 F.2d 188 (1979). The Court of Appeals also requested the District Court to
determine whether, under the facts of this case, the California courts would find
such a duty breached if a private person had issued the supplemental type
certificate in question here. On remand, the District Court again entered
judgment for respondents, finding that the California "Good Samaritan" rule
would apply in this case and would give rise to liability on these facts.

12

On the Government's second appeal, the Ninth Circuit affirmed the judgment of
the District Court. 692 F.2d 1209 (1982). In so holding, the Court of Appeals
followed reasoning nearly identical to that employed in its decision in No. 821349, decided the same day.

13

We granted certiorari, 461 U.S. 925, 103 S.Ct. 2084, 77 L.Ed.2d 296 (1983),
and we now reverse.

II
14

In the Federal Aviation Act of 1958, 49 U.S.C. 1421(a)(1),5 Congress

directed the Secretary of Transportation to promote the safety of flight of civil
aircraft in air commerce by establishing minimum standards for aircraft design,
materials, workmanship, construction, and performance. Congress also granted
the Secretary the discretion to prescribe reasonable rules and regulations
governing the inspection of aircraft, including the manner in which such
inspections should be made. 1421(a)(3). Congress emphasized, however, that
air carriers themselves retained certain responsibilities to promote the public
interest in air safety: the duty to perform their services with the highest possible
degree of safety, 1421(b), the duty to make or cause to be made every
inspection required by the Secretary, 1425(a), and the duty to observe and
comply with all other administrative requirements established by the Secretary,
1425(a).

15

Congress also established a multistep certification process to monitor the

aviation industry's compliance with the requirements developed by the
Secretary. Acting as the Secretary's designee,6 the FAA has promulgated a
comprehensive set of regulations delineating the minimum safety standards

with which the designers and manufacturers of aircraft must comply before
marketing their products. See 14 CFR pts. 23, 25, 27, 29, 31, 33, and 35 (1983).
At each step in the certification process, FAA employees or their
representatives evaluate materials submitted by aircraft manufacturers to
determine whether the manufacturer has satisfied these regulatory
requirements. Upon a showing by the manufacturer that the prescribed safety
standards have been met, the FAA issues an appropriate certificate permitting
the manufacturer to continue with production and marketing.
16

The first stage of the FAA compliance review is type certification. A

manufacturer wishing to introduce a new type of aircraft must first obtain FAA
approval of the plane's basic design in the form of a type certificate. After
receiving an application for a type certificate, the Secretary must "make, or
require the applicant to make, such tests during manufacture and upon
completion as the Secretary . . . deems reasonably necessary in the interest of
safety. . . ." 49 U.S.C. 1423(a)(2). By regulation, the FAA has made the
applicant itself responsible for conducting all inspections and tests necessary to
determine that the aircraft comports with FAA airworthiness requirements. 14
CFR 21.33, 21.35 (1983). The applicant submits to the FAA the designs,
drawings, test reports, and computations necessary to show that the aircraft
sought to be certificated satisfies FAA regulations. 21.17(a)(1), 21.21(a)(b).7
In the course of the type certification process, the manufacturer produces a
prototype of the new aircraft and conducts both ground and flight tests. 21.35.
FAA employees or their representatives then review the data submitted by the
applicant and make such inspections or tests as they deem necessary to
ascertain compliance with the regulations. 21.33(a). If the FAA finds that the
proposed aircraft design comports with minimum safety standards, it signifies
its approval by issuing a type certificate. 49 U.S.C. 1423(a)(2); 14 CFR
21.21(a)(1) (1983).

17

Production may not begin, however, until a production certificate authorizing

the manufacture of duplicates of the prototype is issued. 49 U.S.C. 1423(b).
To obtain a production certificate, the manufacturer must prove to the FAA that
it has established and can maintain a quality control system to assure that each
aircraft will meet the design provisions of the type certificate. 14 CFR
21.139, 21.143 (1983). When it is satisfied that duplicate aircraft will conform
to the approved type design, the FAA issues a production certificate, and the
manufacturer may begin mass production of the approved aircraft.

18

Before any aircraft may be placed into service, however, its owner must obtain
from the FAA an airworthiness certificate, which denotes that the particular
aircraft in question conforms to the type certificate and is in condition for safe

operation. 49 U.S.C. 1423(c). It is unlawful for any person to operate an

aircraft in air commerce without a valid airworthiness certificate. 1430(a).
19

An additional certificate is required when an aircraft is altered by the

introduction of a major change in its type design. 14 CFR 21.113 (1983). To
obtain this supplemental type certificate, the applicant must show the FAA that
the altered aircraft meets all applicable airworthiness requirements. 21.115(a).
The applicant is responsible for conducting the inspections and tests necessary
to demonstrate that each change in the type design complies with the
regulations. 21.115(b), 21.33(b). The methods used by FAA employees or
their representatives to determine an applicant's compliance with minimum
safety standards are generally the same as those employed for basic type
certification. FAA Order 8110.4, Type Certification 32 (1967) (hereinafter
FAA Order 8110.4); CAA Manual of Procedure, Flight Operations and
Airworthiness, Type Certification .5106(a) (1957) (hereinafter CAA Manual
of Procedure).

20

With fewer than 400 engineers, the FAA obviously cannot complete this
elaborate compliance review process alone. Accordingly, 49 U.S.C. 1355
authorizes the Secretary to delegate certain inspection and certification
responsibilities to properly qualified private persons. By regulation, the
Secretary has provided for the appointment of private individuals to serve as
designated engineering representatives to assist in the FAA certification
process. 14 CFR 183.29 (1984). These representatives are typically
employees of aircraft manufacturers who possess detailed knowledge of an
aircraft's design based upon their day-to-day involvement in its development.
See generally Improving Aircraft Safety 29-30. The representatives act as
surrogates of the FAA in examining, inspecting, and testing aircraft for
purposes of certification. 14 CFR 183.1 (1984). In determining whether an
aircraft complies with FAA regulations, they are guided by the same
requirements, instructions, and procedures as FAA employees. FAA Order
8110.4, p. 151; CAA Manual of Procedure .70(b). FAA employees may
briefly review the reports and other data submitted by representatives before
certificating a subject aircraft. Improving Aircraft Safety 31-32; FAA Order
8110.4, p. 159; CAA Manual of Procedure .77.

III
21

The Federal Tort Claims Act, 28 U.S.C. 1346(b), authorizes suits against the
United States for damages

22

"for injury or loss of property, or personal injury or death caused by the

negligent or wrongful act or omission of any employee of the Government

while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred."
23

The Act further provides that the United States shall be liable with respect to
tort claims "in the same manner and to the same extent as a private individual
under like circumstances." 2674.

24

The Act did not waive the sovereign immunity of the United States in all
respects, however; Congress was careful to except from the Act's broad waiver
of immunity several important classes of tort claims. Of particular relevance
here, 28 U.S.C. 2680(a) provides that the Act shall not apply to

25

"[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, 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." (Emphasis added.)

26

The discretionary function exception, embodied in the second clause of

2680(a), marks the boundary between Congress' willingness to impose tort
liability upon the United States and its desire to protect certain governmental
activities from exposure to suit by private individuals.

27

Although the Court has previously analyzed the legislative history of 2680(a),
see Dalehite v. United States, 346 U.S. 15, 26-30, 73 S.Ct. 956, 963-965, 97
L.Ed. 1427 (1953), we briefly review its highlights for a proper understanding
of the application of the discretionary function exception to this case. During
the years of debate and discussion preceding the passage of the Act, Congress
considered a number of tort claims bills including exceptions from the waiver
of sovereign immunity for claims based upon the activities of specific federal
agencies, notably the Federal Trade Commission and the Securities and
Exchange Commission. See, e.g., H.R.5373, 77th Cong., 2d Sess. (1942);
H.R.7236, 76th Cong., 1st Sess. (1940); S.2690, 76th Cong., 1st Sess. (1939).8
In 1942, however, the 77th Congress eliminated the references to these
particular agencies and broadened the exception to cover all claims based upon
the execution of a statute or regulation or the performance of a discretionary
function. H.R.6463, 77th Cong., 2d Sess. (1942); S.2207, 77th Cong., 2d Sess.
(1942). The language of the exception as drafted during the 77th Congress is

identical to that of 2680(a) as ultimately adopted.

28

The legislative materials of the 77th Congress illustrate most clearly Congress'
purpose in fashioning the discretionary function exception. A Government
spokesman appearing before the House Committee on the Judiciary described
the discretionary function exception as a "highly important exception:"

29

"[It is] designed to preclude application of the act to a claim based upon an
alleged abuse of discretionary authority by a regulatory or licensing agency
for example, the Federal Trade Commission, the Securities and Exchange
Commission, the Foreign Funds Control Office of the Treasury, or others. It is
neither desirable nor intended that the constitutionality of legislation, the
legality of regulations, or the propriety of a discretionary administrative act
should be tested through the medium of a damage suit for tort. The same holds
true of other administrative action not of a regulatory nature, such as the
expenditure of Federal funds, the execution of a Federal project, and the like.

30

"On the other hand, the common law torts of employees of regulatory agencies,
as well as of all other Federal agencies, would be included within the scope of
the bill." Hearings on H.R.5373 and H.R.6463 before the House Committee on
the Judiciary, 77th Cong., 2d Sess., 28, 33 (1942) (statement of Assistant
Attorney General Francis M. Shea).9

31

It was believed that claims of the kind embraced by the discretionary function
exception would have been exempted from the waiver of sovereign immunity
by judicial construction; nevertheless, the specific exception was added to make
clear that the Act was not to be extended into the realm of the validity of
legislation or discretionary administrative action. Id., at 29; id., at 37,
Memorandum, with Appendixes, Federal Torts Claims Act (explanatory of
Comm.Print of H.R.5373, 1942). 77th Cong., 2d Sess., 29 (Comm.Print 1942).
It was considered unnecessary to except by name such agencies as the Federal
Trade Commission and the Securities and Exchange Commission, as had earlier
bills, because the language of the discretionary function exception would
"exemp[t] from the act claims against Federal agencies growing out of their
regulatory activities." Id., at 8 (emphasis added).

32

The nature and scope of 2680(a) were carefully examined in Dalehite v.

United States, supra. Dalehite involved vast claims for damages against the
United States arising out of a disastrous explosion of ammonium nitrate
fertilizer, which had been produced and distributed under the direction of the
United States for export to devastated areas occupied by the Allied Armed

Forces after World War II. Numerous acts of the Government were charged as
negligent: the cabinet-level decision to institute the fertilizer export program,
the failure to experiment with the fertilizer to determine the possibility of
explosion, the drafting of the basic plan of manufacture, and the failure
properly to police the storage and loading of the fertilizer.
33

The Court concluded that these allegedly negligent acts were governmental
duties protected by the discretionary function exception and held the action
barred by 2680(a). Describing the discretion protected by 2680(a) as "the
discretion of the executive or the administrator to act according to one's
judgment of the best course," id., at 34, 73 S.Ct., at 967, the Court stated:

34

"It is unnecessary to define, apart from this case, precisely where discretion
ends. It is enough to hold, as we do, that the 'discretionary function or duty' that
cannot form a basis for suit under the Tort Claims Act includes more than the
initiation of programs and activities. It also includes determinations made by
executives or administrators in establishing plans, specifications or schedules of
operations. Where there is room for policy judgment and decision there is
discretion. It necessarily follows that acts of subordinates in carrying out the
operations of government in accordance with official directions cannot be
actionable." Id., at 35-36, 73 S.Ct., at 968 (footnotes omitted).

35

Respondents here insist that the view of 2680(a) expressed in Dalehite has
been eroded, if not overruled, by subsequent cases construing the Act,
particularly Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100
L.Ed. 48 (1955), and Eastern Air Lines, Inc. v. Union Trust Co., 95
U.S.App.D.C. 189, 221 F.2d 62, summarily aff'd sub nom. United States v.
Union Trust Co., 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796 (1955). While the
Court's reading of the Act admittedly has not followed a straight line, we do not
accept the supposition that Dalehite no longer represents a valid interpretation
of the discretionary function exception.

36

Indian Towing Co. v. United States, supra, involved a claim under the Act for
damages to cargo aboard a vessel that ran aground, allegedly owing to the
failure of the light in a lighthouse operated by the Coast Guard. The plaintiffs
contended that the Coast Guard had been negligent in inspecting, maintaining,
and repairing the light. Significantly, the Government conceded that the
discretionary function exception was not implicated in Indian Towing, arguing
instead that the Act contained an implied exception from liability for "uniquely
governmental functions." Id., 350 U.S., at 64, 76 S.Ct., at 124. The Court
rejected the Government's assertion, reasoning that it would "push the courts
into the 'non-governmental'-'governmental' quagmire that has long plagued the

law of municipal corporations." Id., at 65, 76 S.Ct., at 124.

37

In Eastern Air Lines, Inc. v. Union Trust Co., supra, two aircraft collided in
midair while both were attempting to land at Washington National Airport. The
survivors of the crash victims sued the United States under the Act, asserting
the negligence of air traffic controllers as the cause of the collision. The United
States Court of Appeals for the District of Columbia Circuit permitted the suit
against the Government. In its petition for certiorari, the Government urged the
adoption of a "governmental function exclusion" from liability under the Act
and pointed to 2680(a) as textual support for such an exclusion. Pet. for Cert.
in United States v. Union Trust Co., O.T.1955, No. 296, p. 18. The
Government stated further that 2680(a) was "but one aspect of the broader
exclusion from the statute of claims based upon the performance of acts of a
uniquely governmental nature." Id., at 37. This Court summarily affirmed,
citing Indian Towing Co. v. United States, supra. 350 U.S. 907, 76 S.Ct. 192,
100 L.Ed. 796 (1955). Given the thrust of the arguments presented in the
petition for certiorari and the pointed citation to Indian Towing, the summary
disposition in Union Trust Co. cannot be taken as a wholesale repudiation of
the view of 2680(a) set forth in Dalehite.10

38

As in Dalehite, it is unnecessaryand indeed impossibleto define with

precision every contour of the discretionary function exception. From the
legislative and judicial materials, however, it is possible to isolate several
factors useful in determining when the acts of a Government employee are
protected from liability by 2680(a). First, it is the nature of the conduct, rather
than the status of the actor, that governs whether the discretionary function
exception applies in a given case. As the Court pointed out in Dalehite, the
exception covers "[n]ot only agencies of government . . . but all employees
exercising discretion." 346 U.S., at 33, 73 S.Ct., at 966. Thus, the basic inquiry
concerning the application of the discretionary function exception is whether
the challenged acts of a Government employee whatever his or her rankare of
the nature and quality that Congress intended to shield from tort liability.

39

Second, whatever else the discretionary function exception may include, it

plainly was intended to encompass the discretionary acts of the Government
acting in its role as a regulator of the conduct of private individuals.11 Time and
again the legislative history refers to the acts of regulatory agencies as
examples of those covered by the exception, and it is significant that the early
tort claims bills considered by Congress specifically exempted two major
regulatory agencies by name. See supra, at 808-810. This emphasis upon
protection for regulatory activities suggests an underlying basis for the
inclusion of an exception for discretionary functions in the Act: Congress

wished to prevent judicial "second-guessing" of legislative and administrative

decisions grounded in social, economic, and political policy through the
medium of an action in tort. By fashioning an exception for discretionary
governmental functions, including regulatory activities, Congress took "steps to
protect the Government from liability that would seriously handicap efficient
government operations." United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct.
1850, 1858, 10 L.Ed.2d 805 (1963).
IV
40

We now consider whether the discretionary function exception immunizes from

tort liability the FAA certification process involved in these cases. Respondents
in No. 82-1349 argue that the CAA was negligent in issuing a type certificate
for the Boeing 707 aircraft in 1958 because the lavatory trash receptacle did not
satisfy applicable safety regulations. Similarly, respondents in No. 82-1350
claim negligence in the FAA's issuance of a supplemental type certificate in
1965 for the DeHavilland Dove aircraft; they assert that the installation of the
fuel line leading to the cabin heater violated FAA airworthiness standards.
From the records in these cases there is no indication that either the Boeing 707
trash receptacle or the DeHavilland Dove cabin heater was actually inspected
or reviewed by an FAA inspector or representative. Brief for Respondent Varig
Airlines in No. 82-1349, pp. 8, 15; Brief for United States 10, n. 10, and 37.
Respondents thus argue in effect that the negligent failure of the FAA to
inspect certain aspects of aircraft type design in the process of certification
gives rise to a cause of action against the United States under the Act.

41

The Government, on the other hand, urges that the basic responsibility for
satisfying FAA air safety standards rests with the manufacturer, not with the
FAA. The role of the FAA, the Government says, is merely to police the
conduct of private individuals by monitoring their compliance with FAA
regulations. According to the Government, the FAA accomplishes its
monitoring function by means of a "spot-check" program designed to
encourage manufacturers and operators to comply fully with minimum safety
requirements. Such regulatory activity, the Government argues, is the sort of
governmental conduct protected by the discretionary function exception to the
Act.12 We agree that the discretionary function exception precludes a tort action
based upon the conduct of the FAA in certificating these aircraft for use in
commercial aviation.

42

As noted supra, at 804, the Secretary of Transportation has the duty to promote
safety in air transportation by promulgating reasonable rules and regulations
governing the inspection, servicing, and overhaul of civil aircraft. 49 U.S.C.

1421(a)(3)(A). In her discretion, the Secretary may also prescribe

43

"the periods for, and the manner in, which such inspection, servicing, and
overhaul shall be made, including provision for examinations and reports by
properly qualified private persons whose examinations or reports the Secretary
of Transportation may accept in lieu of those made by its officers and
employees." 1421(a)(3)(C) (emphasis added).

44

Thus, Congress specifically empowered the Secretary to establish and

implement a mechanism for enforcing compliance with minimum safety
standards according to her "judgment of the best course." Dalehite v. United
States, 346 U.S., at 34, 73 S.Ct., at 967.

45

In the exercise of this discretion, the FAA, as the Secretary's designee, has
devised a system of compliance review that involves certification of aircraft
design and manufacture at several stages of production. See supra, at 804-806.
The FAA certification process is founded upon a relatively simple notion: the
duty to ensure that an aircraft conforms to FAA safety regulations lies with the
manufacturer and operator, while the FAA retains the responsibility for
policing compliance.13 Thus, the manufacturer is required to develop the plans
and specifications and perform the inspections and tests necessary to establish
that an aircraft design comports with the applicable regulations; the FAA then
reviews the data for conformity purposes by conducting a "spot check" of the
manufacturer's work.

46

The operation of this "spot-check" system is outlined in detail in the handbooks

and manuals developed by the CAA and FAA for the use of their employees.
For example, the CAA Manual of Procedure for type certification in effect at
the time of the certification of the Boeing 707 provided:

47

"Conformity determination may be varied depending upon circumstances. A

manufacturer's policies, quality control procedures, experience, inspection
personnel, equipment, and facilities will dictate the extent of conformity
inspection to be conducted or witnessed by [CAA employees]. Differences
between manufacturers require that the conformity program be adjusted to fit
existing conditions. In the case of an inexperienced manufacturer whose ability
is unknown, it may be necessary to conduct a high percentage of conformity
inspections until such time as the [CAA] inspector feels he can safely rely to a
greater degree upon the company inspectors. He may then gradually reduce his
own inspection or witnessing accordingly.

48

"Experienced manufacturers having previously demonstrated the acceptability

of their quality control and inspection competence . . . should benefit by greater
[CAA] confidence. In such cases, conformity determination may be made
through a planned system of spot-checking critical parts and assemblies and by
reviewing inspection records and materials review dispositions. . . . It is not
intended that the inspector personally conduct a complete conformity
inspection of each part he records on a [CAA] form. He should, however,
visually inspect and witness the manufacturer's inspection of the critical
characteristics. . . . In a program of this type, increased confidence in the
manufacturer, plus a planned program of spot-checking by [CAA employees],
should result in obtaining increased knowledge of conformity of the end
product. . . .

49

"Regardless of the manufacturer's experience, it is the [CAA] inspector's

responsibility to assure that a complete conformity inspection has been
performed by the manufacturer and that the results of this inspection are
properly recorded and reported." CAA Manual of Procedure .330 (emphasis
added).

50

See also FAA Order 8110.4, pp. 39-40.

51

As to the engineering review of an application for a type certificate, the CAA

materials note that only a "relatively small number of engineers" are available
to evaluate for compliance with air safety regulations the data submitted by
applicants. Accordingly, the Manual states:

52

"It is obvious that complete detailed checking of data is not possible. Instead,
an overriding check method should be used [which] is predicated on the fact
that the applicant has completely checked all data presented for examination.
These data are to be examined in turn by the [CAA] engineer for method and
completeness, and with sufficient spot-checking to ascertain that the design
complies with the minimum airworthiness requirements." CAA Manual of
Procedure .41 (emphasis added).
See also FAA Order 8110.4, p. 60.14

53

The procedure for supplemental type certification is much the same. According
to the Manual of Procedure applicable to the supplemental type certification of
the DeHavilland Dove, an applicant must submit to the FAA data describing
the proposed change in type design, which may be accompanied by drawings or
photographs of the suggested alteration. The methods for determining

compliance with applicable safety regulations are generally the same as those
used for basic type certification. Physical inspections of the proposed
modification in type design are required when compliance with the applicable
regulations "cannot be determined adequately from an evaluation of the
technical data." CAA Manual of Procedure 5106(b). Moreover, FAA
representatives are authorized to approve data covering major changes in type
design and obtain supplemental type certifications without prior review by the
FAA. Id. 764(a). See also FAA Order 8110.4, pp. 31-32, 158.
54

Respondents' contention that the FAA was negligent in failing to inspect certain
elements of aircraft design before certificating the Boeing 707 and DeHavilland
Dove necessarily challenges two aspects of the certification procedure: the
FAA's decision to implement the "spot-check" system of compliance review,
and the application of that "spot-check" system to the particular aircraft
involved in these cases. In our view, both components of respondents' claim are
barred by the discretionary function exception to the Act.

55

The FAA's implementation of a mechanism for compliance review is plainly

discretionary activity of the "nature and quality" protected by 2680(a). When
an agency determines the extent to which it will supervise the safety procedures
of private individuals, it is exercising discretionary regulatory authority of the
most basic kind. Decisions as to the manner of enforcing regulations directly
affect the feasibility and practicality of the Government's regulatory program;
such decisions require the agency to establish priorities for the accomplishment
of its policy objectives by balancing the objectives sought to be obtained
against such practical considerations as staffing and funding. Here, the FAA has
determined that a program of "spot-checking" manufacturers' compliance with
minimum safety standards best accommodates the goal of air transportation
safety and the reality of finite agency resources. Judicial intervention in such
decisionmaking through private tort suits would require the courts to "secondguess" the political, social, and economic judgments of an agency exercising its
regulatory function. It was precisely this sort of judicial intervention in
policymaking that the discretionary function exception was designed to prevent.

56

It follows that the acts of FAA employees in executing the "spot-check"

program in accordance with agency directives are protected by the discretionary
function exception as well. See Dalehite v. United States, 346 U.S., at 36, 73
S.Ct., at 968. The FAA employees who conducted compliance reviews of the
aircraft involved in this case were specifically empowered to make policy
judgments regarding the degree of confidence that might reasonably be placed
in a given manufacturer, the need to maximize compliance with FAA
regulations, and the efficient allocation of agency resources. In administering

the "spot-check" program, these FAA engineers and inspectors necessarily took
certain calculated risks, but those risks were encountered for the advancement
of a governmental purpose and pursuant to the specific grant of authority in the
regulations and operating manuals. Under such circumstances, the FAA's
alleged negligence in failing to check certain specific items in the course of
certificating a particular aircraft falls squarely within the discretionary function
exception of 2680(a).
V
57

In rendering the United States amenable to some suits in tort, Congress could
not have intended to impose liability for the regulatory enforcement activities
of the FAA challenged in this case. The FAA has a statutory duty to promote
safety in air transportation, not to insure it. We hold that these actions against
the FAA for its alleged negligence in certificating aircraft for use in commercial
aviation are barred by the discretionary function exception of the Federal Tort
Claims Act. Accordingly, the judgments of the United States Court of Appeals
for the Ninth Circuit are reversed.

58

It is so ordered.

Before introducing a new type of aircraft, a manufacturer must first obtain from
the FAA a type certificate signifying that the basic design of the aircraft meets
the minimum criteria specified in the safety regulations promulgated by the
FAA. 49 U.S.C. 1423(a); 14 CFR 21.11-21.53 (1983). When applying for
a type certificate, the manufacturer must supply the FAA with detailed plans,
data, and documentation illustrating the aircraft design and demonstrating its
compliance with FAA regulations. FAA employees or private employees who
represent the FAA then examine the manufacturer's submission for conformity
with the regulations. See infra, at 805-806.

Under 28 U.S.C. 2680(a), the United States may not be held liable under the
Act for:
"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."

Title 28 U.S.C. 2680(h) states that the provisions of the Act shall not apply to
"[a]ny claim arising out of . . . misrepresentation. . . ."

Any person who alters an aircraft by introducing a major change in the type
design must obtain from the FAA a supplemental type certificate. 14 CFR
21.113 (1983). In order to obtain such a certificate, the applicant must supply
the FAA with drawings, plans, and other data sufficient to establish that the
altered aircraft meets all applicable airworthiness requirements. 21.115. See
infra, at 806-807.

In 1958, when the type certificate for the Boeing 707 aircraft owned by
respondent Varig Airlines was issued, the Civil Aeronautics Act of 1938, 52
Stat. 1007, was the governing statute. Because the relevant provisions of the
Federal Aviation Act are virtually identical to those of its predecessor, see Civil
Aeronautics Act of 1938, 601, 605, 52 Stat. 1007-1008, 1010-1011, for ease
of reference we will refer only to the current version of the statute.
As originally enacted, the Federal Aviation Act vested in the Federal Aviation
Agency all regulatory authority over aviation safety. See Pub.L. 85-726, 101,
72 Stat. 737. This agency was later renamed the Federal Aviation
Administration and placed in the Department of Transportation. Pub.L. 89-670,
3(e), 6(c)(1), 80 Stat. 932, 938. All the functions, powers, and duties of the
Federal Aviation Agency were then transferred to the Secretary of
Transportation. 6(c)(1), 80 Stat. 938.

See Pub.L. 89-670, 6(c)(1), 80 Stat. 938.

One major manufacturer of commercial aircraft estimated that in the course of

obtaining a type certificate for a new wide-body aircraft it would submit to the
FAA approximately 300,000 engineering drawings and changes, 2,000
engineering reports, and 200 other reports. In addition, it would subject the
aircraft to about 80 major ground tests and 1,600 hours of flight tests. National
Research Council, Committee on FAA Airworthiness Certification Procedures,
Improving Aircraft Safety 29 (1980) (hereinafter Improving Aircraft Safety).

For example, 303(7) of H.R.7236, 76th Cong., 1st Sess. (1940), provided that
the waiver of sovereign immunity should not extend to "[a]ny claim for
damages caused by the administration of any law or laws by the Federal Trade
Commission or by the Securities and Exchange Commission."

The Committee incorporated the Government's view into its Report almost
verbatim. H.R.Rep. No. 2245, 77th Cong., 2d Sess., 10 (1942).

10

Respondents' reliance upon Rayonier, Inc. v. United States, 352 U.S. 315, 77

S.Ct. 374, 1 L.Ed.2d 354 (1957), is equally misplaced. In Rayonier the Court
revisited an issue considered briefly in Dalehite: whether the United States may
be held liable for the alleged negligence of its employees in fighting a fire. In
Dalehite, the Court held that alleged negligence in firefighting was not
actionable under the Act, basing its decision upon "the normal rule that an
alleged failure or carelessness of public firemen does not create private
actionable rights." Dalehite v. United States, 346 U.S., at 43, 73 S.Ct., at 972.
In so holding, the Dalehite Court did not discuss or rely upon the discretionary
function exception. The Rayonier Court rejected the reasoning of Dalehite on
the ground that the liability of the United States under the Act is not restricted
to that of a municipal corporation or other public body. Rayonier, Inc. v. United
States, supra, 352 U.S., at 319, 77 S.Ct., at 376 (citing Indian Towing Co. v.
United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955)). While the
holding of Rayonier obviously overrules one element of the judgment in
Dalehite, the more fundamental aspects of Dalehite, including its construction
of 2680(a), remain undisturbed.
11

Even the dissenters in Dalehite read the legislative history of the discretionary
function exception as protecting "that type of discretion which government
agencies exercise in regulating private individuals." Dalehite v. United States,
346 U.S., at 58, n. 12, 73 S.Ct., at 979, n. 12 (Jackson, J., joined by Black and
Frankfurter, JJ., dissenting).

12

The Government presses two additional arguments in support of reversal. First,

the Government asserts that the conduct of the FAA in certificating aircraft is a
core governmental activity that is not actionable under the Act, because no
private individual engages in analogous activity. See 28 U.S.C. 1346(b) and
2674. Second, the Government interprets respondents' claims as based upon
misrepresentations contained in the certificates and argues that they are barred
by the misrepresentation exception to the Act. 2680(h); see n. 4, supra.
Respondents urge that the first argument is precluded by Indian Towing Co. v.
United States, supra, and the second by our decision last Term in Block v. Neal,
460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). Because we rest our
decision today upon the discretionary function exception, we find it
unnecessary to address these additional issues.
The Government also argues that the Court of Appeals erred in applying
California's "Good Samaritan" doctrine to the FAA certification process. See
supra, at 801, 803. But the application of the "Good Samaritan" doctrine is at
bottom a question of state law, and we generally accord great deference to the
interpretation and application of state law by the Courts of Appeals. See, e.g.,
Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev.
Comm'n, 461 U.S. 190, 214, 103 S.Ct. 1713, 1727, 75 L.Ed.2d 752 (1983);

Runyon v. McCrary, 427 U.S. 160, 181-182, 96 S.Ct. 2586, 2599-2600, 49

L.Ed.2d 415 (1976) (quoting Bishop v. Wood, 426 U.S. 341, 346, and n. 10, 96
S.Ct. 2074, 2078, and n. 10, 48 L.Ed.2d 684 (1976)). We thus decline the
Government's invitation to undertake our own examination of this state-law
issue.
13

This premise finds ample support in the statute and regulations. See, e.g., 49
U.S.C. 1421(b) (duty rests on air carriers to perform their services with
highest possible degree of safety); 1425(a) (air carrier has duty to make or
cause to be made inspections required by Secretary and duty to comply with
regulations); 14 CFR 21.17 (1983) (applicant for type certificate must show
that aircraft meets applicable requirements); 21.33 (applicant for type
certificate must conduct all tests and inspections necessary to determine
compliance); 21.35 (specifying tests that must be made by applicants for type
certificates).

14

In a recent report, the National Academy of Sciences recognized that because

"FAA engineers cannot review each of the thousands of drawings, calculations,
reports, and tests involved in the type certification process," the agency must
place great reliance on the manufacturer. Improving Aircraft Safety 6, 29, 31.
The report also noted that "in most cases the FAA staff performs only a cursory
review of the substance of th[e] overwhelming volume of documents"
submitted for its approval. Id., at 31-32.